Canada - Supreme Court Releases Two Decisions on the Role of Privacy in State Investigations
Two recent decisions of the Supreme Court of Canada (“Court”) contribute to the growing Canadian case law on individual privacy interests in the context of the state’s exercise of its investigative powers, and the subsequent use of evidence obtained in those searches.
In R v Fearon, 2014 SCC 77, a narrow majority held that the common law police power to conduct a search incidental to arrest permits cell phone searches. In arriving at this conclusion, the majority of the Court established the following four conditions that must be met in order for the search of a cell phone or similar device incidental to arrest to comply with the Canadian Charter of Rights and Freedoms:
1. The arrest must be lawful.
2. The search must be “truly incidental” to the arrest, meaning searches must be done promptly upon arrest in order to effectively serve law enforcement purposes. Specifically, these purposes may include protecting the police, the accused or the public; preserving evidence; and discovering evidence if there is a risk that the investigation will be stymied or significantly hampered absent the ability to conduct the search.
3. The nature and the extent of the search must be tailored to its purpose, meaning that, in practice, only recently sent or drafted emails, texts, photos and the call log will generally be available.
4. The police must take detailed notes of what they have examined on the device and how they examined it.
The case involved a warrantless search of the accused’s cell phone in connection with a jewellery robbery, before the police had located the stolen items or the weapon used in the robbery. The evidence discovered in the course of the search, which included a draft text message and a photograph of the handgun used in the crime, was used to convict the accused at trial.
The Court held that the search breached the accused’s constitutional right to security against unreasonable search and seizure, on the basis that it did not meet the fourth condition above. Nonetheless, the evidence was not excluded because, according to the Court, the impact on the accused’s protected interests was not especially grave in this case. Moreover, other factors (such as society’s general interest in the adjudication of the case on its merits) favoured inclusion. In contrast, a strong dissent focused on individuals’ high expectation of privacy in their personal digital devices. The dissent concluded that searches of such devices are not authorized under the common law power to conduct searches incident to arrest, and that state interests could be accommodated under the existing doctrine that limits warrantless searches to “exigent” circumstances.
Separately, in Imperial Oil v Jacques, 2014 SCC 66, plaintiffs at the exploratory stage of a Quebec-based civil class action were permitted access to wiretap evidence gathered in a parallel Competition Bureau criminal investigation. The Court upheld the decisions of the Superior Court and Court of Appeal, which had concluded that neither the Competition Act nor the Criminal Code of Canada create immunity from such disclosure, and had granted the plaintiffs’ request subject to two conditions: that the recordings be
disclosed solely to the lawyers and experts participating in the civil proceedings, and that they be screened to protect the privacy of third parties having nothing to do with the proceedings.
However, in an acknowledgment of the privacy protections enshrined in the Criminal Code and Quebec Charter of Human Rights and Freedoms, the Court held that there is no right to access intercepted communications until those interceptions have been found, or are conceded to be, lawful and admitted into evidence in a criminal proceeding. Moreover, the Court cautioned that while a trial judge has discretion to order disclosure under the Quebec Code of Civil Procedure, such a request must be denied where either legislation or the courts have established an immunity from disclosure. According to the Court, the judge’s exercise of discretion in determining whether and how to order disclosure may take into account a number of considerations, such as: the relevance of the documents to the issues between the parties (which generally is interpreted broadly at the exploratory stage), the potential impact of disclosure on the privacy interests of a party or third party to the proceedings, the efficient conduct of criminal proceedings and the accused’s right to a fair trial.
The results of these cases suggest a tendency towards permitting disclosure and use of information obtained in the course of criminal investigations. However, the various conditions and qualifications in the Court’s decisions will no doubt require careful interpretation in the individual circumstances of subsequent cases.
For more information, please contact Theo Ling, Lisa Douglas, Arlan Gates, Eva Warden or Jonathan Tam.