In a ruling on February 20, 2013, the appeals court in Ontario ruled that police may search the contents of a cell phone without a warrant during an arrest.
The ruling was made by Justice Robert Armstrong and backed by two other judges who dismissed an appeal of an armed robbery conviction to Kevin Fearon, who was arrested under the suspicion that he was involved in a crime. On his phone, officers found pictures of a gun and an undisclosed amount of money, as well as a string of incriminating text messages.
Fearon’s lawyers had argued that police officers had no right to search his cell phone – which was unlocked at the time – urging the appeal judge to squash the armed robbery conviction Fearon was facing since his charter right of protection against unreasonable search had been breached.
At issue here is that Fearon’s cell phone was not password protected at the time of his arrest and search, leading officers to believe they had a right to search the contents.
“While I appreciate the highly personal and sensitive nature of the contents of a cellphone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case,” Armstrong wrote in his decision to deny the appeal.
The Canadian Civil Liberties Association intervened, arguing cell phones should not be searched at all after an arrest, absent urgent circumstances which were not defined at the time; estimating a case by case basis.
Fearon’s lawyer, Sam Goldstein, is considering taking the case of the Supreme Court in a measure to legally clarify the rules regarding cell phone search and seizures as evidence of a crime.
Upon hearing the ruling by Justice Armstrong, Goldstein commented that the lesson to be taken from this ruling is to make sure your phone is password-protected if you want to prevent police from searching it without a warrant.
The lesson stands the same for activists and organizers, the best bet is to lock your cellphone before attending a demonstration. Or keep your phone constantly password protected to protect yourself from unwanted snooping by the police.
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