Canada police don‘t need a warrant to search cell phones

Douglas Crawford

Douglas Crawford

December 15, 2014

In July this year privacy campaigners celebrated an unambiguous 9-0 ruling by the United States Supreme Court that police must obtain a search warrant before being allowed to rifle through a suspect’s cell phone.

‘Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ (Boyd, supra, at 630). The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

Unfortunately, it seems the Supreme Court of Canada does not agree with this principled stand, and in a ruling that has surprised many, has upheld the rights of police officers to search the phones of arrestees without a warrant.

The decision did however split the judges presiding over the case, which concerned a jewellery heist in which the arresting officers searched the two suspects’ phones, and found incriminating messages and a photo of a gun, which were later used to convict the suspects.

Three judges strongly disagreed with the decision, recognizing that cell phones are ‘quantitatively and qualitatively’ different from physical objects that police traditionally have the right to search, such as bags and pockets,

The cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices. The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm. Indeed, personal digital devices are becoming as ubiquitous as the house key. Increasingly large numbers of people carry such devices with them everywhere they go (be they cell phones, mobile computers, smart watches, smart glasses, or tablets).

The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances – when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.

Privacy campaigners have noted that the majority of judges did recognize that whether or not a phone is protected by a password is immaterial to whether the police have a right to search it (which is viewed as minor victory), but overall the ruling is a blow to privacy, as it allows police to carry on searching arrested suspects cell phones without the need for any form of judicial oversight.

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