A midnight knock on the door is the nightmare of the police state. For many, the spectre of police searching their smartphone based on a reasonable suspicion it may contain evidence is as intrusive as the midnight knock. Recent decisions have changed the face of privacy interests, perhaps foreshadowing the outcome of a pending Supreme Court of Canada (SCC) decision of a search incident to arrest (SITA) of a cellphone.
In Giles, 2007 BCSC 1147, MacKenzie J. (as she then was) was not persuaded that password protection, encryption or the significant capacity to store information made a BlackBerry different from a logbook, diary or notebook, allowing police a virtually unfettered ability to search a cellphone for evidence of the offence for which a person was arrested. Subsequent decisions by other courts accorded computers, and the information they can contain, a greater privacy interest. Until this year, Giles was followed in BC.
In Vye, 2014 BCSC 93, the police searched the accused’s iPhone three times without a warrant. Vye only contested the third, a forensic examination nearly a year after seizure. Thompson J. held that the foundational pillars of the reasoning in Giles were overtaken by Vu, 2013 SCC 60, where the court said (para. 45):
“The animating assumption of the traditional rule – that if the search of a place is justified, so is the search of receptacles found within it – simply cannot apply with respect to computer searches.”
The June 13, 2014 decision in R. v. Spencer, 2014 SCC 43, has made it clear that informational privacy is alive and well. The court held that a police request for subscriber information of an IP address from Shaw was a search for the identity of an Internet subscriber which corresponded to particular Internet usage. The Crown’s characterization of the information as “phone book” information glossed over the significance of an IP address and what such an address can reveal. The proper approach was to look at the nature of the privacy interests potentially compromised, not just by the information sought, but also by what that information reveals.
The court recognized three informational privacy interests: confidentiality; control of dissemination of information; and anonymity, the latter being particularly important in the context of Internet usage: “Internet users do not expect their online anonymity to cease when they access the Internet outside their homes, via smartphones, or portable devices.”
But the court also said that their reasons did not address or diminish any existing police powers to obtain subscriber information in exigent circumstances. Notably, SITA was not mentioned.
Five days later the BC Court of Appeal released R. v. Mann, 2014 BCCA 231. The court did not refer to Spencer nor differentiate between a smartphone and a “regular” cellphone: “In summary, the law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cellphone. I offer no comment on the permissible grounds of a ‘cursory’ search, or other difficult questions pertaining to search incident to arrest and cellphones...”
The greater privacy interests have implications for a SITA. The necessity for a search warrant or higher justification to search other highly private places already exists – in a home, even where exigent circumstances exist: Silveira, [1995] 2 SCR 297; bodily fluids: Stillman, [1997] 1 S.C.R. 607; and strip/cavity searches: Golden, 2001 SCC 83.
The SCC heard the appeal of R v. Fearon, 2013 ONCA 106, on May 23, 2014, reserving judgment. The cellphone was not a “smartphone.” Fearon argued that, except in exigent circumstances, even a cursory search was not permissible as a SITA.