In its decision this morning in R. v. Fearon, 2014 SCC 77, the Supreme Court of Canada found that police do not need a search warrant to search the contents of a cell phone or similar device found on a suspect during a lawful arrest provided a four-part test is met.

Because the search of a cell phone has the potential to be a “much more significant invasion of privacy” than the typical search incident to arrest, the Court found that modifications had to be made to the existing common law power of search incident to arrest in order to comply with s. 8 of the Charter.

The Court sought to strike a balance that gives due weight to the “important law enforcement objectives served by searches incident to arrest” and to the significant privacy interests at stake in cell phone searches.  The Court set out a four-part test to determine whether such searches are Charter compliant:

  1. The arrest must be lawful;
  2. The search must be truly incidental to the arrest;
  3. The nature and the extent of the search must be tailored to its purpose; and
  4. The police must take detailed notes of what they have examined on the device and how they examined it.

The SCC’s approach is very different from that taken by the US Supreme Court on the same issue earlier this year in Riley v. California, No. 13-132, [see our blog: http://www.wortzmans.com/2014/07/04/us-supreme-court-clarifies-law-on-warrantless-cell-phone-searches-will-our-supreme-court/#sthash.Qtexavjx.dpuf].  In Riley, the US Court found that “privacy interests at stake in connection with search of an individual’s cell phone outweigh any legitimate governmental interest in a warrantless search of an arrestee’s phone.”  While the decision in Riley was included in supplemental submissions filed after the hearing, the SCC chose to chart a different path for Canada.  How often this new power to search without a warrant will be utilized – and whether the test will be difficult or easy to meet – remains to be seen.