Supreme Court of Canada to Decide Whether the Search of Cell Phone Without Password Protection Requires a Warrant

The Supreme Court of Canada has granted leave to appeal from an Ontario Court of Appeal (OCA) decision on the issue of whether a warrant is necessary to search a cell phone that is not password protected. Kevin Fearon was convicted of robbery based on an incriminating text message stored on his cell phone. Upon his arrest, a police officer manipulated Mr Fearon’s cell phone to review its contents and found the incriminating text message. At the police station, police officers also reviewed photographs, recent calls and contacts. Six months later, a search warrant was obtained because an officer on the case believed that there was a court case that held that a search warrant was necessary to download the contents of a cell phone. Mr Fearon appealed his conviction on the basis that his right against unreasonable search and seizure under section 8 of the Charter of Rights and Freedoms was violated. To exclude evidence obtained from the cell phone during the search incident to his arrest, Mr Fearon argued that a search warrant was required as a cell phone owner has a high expectation of privacy. The OCA agreed with the trial judge that the cell phone searches upon arrest and at the police station were a lawful search incident to arrest. However, the OCA noted that if the cell phone had been password protected or locked to other users, a search warrant would be necessary to examine the contents of the cell phone. For the full text of the SCC leave decision, see: http://tinyurl.com/oq43n9n Summary by: Lauren Lodenquai