Supreme Court of Canada Decision – Cell Phones

The Supreme Court just released a decision on searching cell phones of persons under arrest. Searches of cell phones are permitted without a warrant provided the search is incidental, or tied to the arrest of the person. As well, the search must be of “recently sent pictures, texts and call logs…”

The problem will always be in the details.  First, there is no possible way to determine if the search is limited to recent calls, photos, logs and texts.  Second, what would be the result if the search is extensive? Police are required to keep detailed notes of the search.  Again, what happens to the evidence obtained from the phone if notes aren’t kept or are inadequate?  If the evidence is admitted under these circumstances, privacy rights are obliterated.  Moreover, just what is an incidental search? What if the search is hours after the arrest because the phone has a password? What if the arrest is hours or days after the incident? What if the arrest is for an assault? Can the police search the phone?

This decision greatly expands police powers and fails to recognize that cell phones are personal computers storing a vast amount of private information.