Sep 15, 2015

R v Fearon: Cell Phones, Privacy, and the Supreme Court in the Digital Age

R. v. Fearon, 2014 SCC 77 (CanLII)

In R v Fearon, 2014 SCC 77 [Fearon], the Supreme Court of Canada considered the circumstances under which police officers can justifiably conduct a warrantless search of an arrestee’s cell phone or other digital device. Fundamentally, the decision required the court to assess and balance the public purposes served by effective law enforcement against the dignity and privacy interests of individuals guarded by section 8 of the Charter.

Justice Cromwell, writing for a narrow 4-3 majority, found that the correct balance between these interests could be struck by appropriately tailoring an existing common law police power – the power to search incident to arrest. In the result, a warrantless cell phone search upon lawful arrest can comply with section 8 of the Charter where certain conditions are met.

In a strong dissent, Justice Karakatsanis delivered a markedly different understanding of the correct balance between these two important interests, emphasizing the unique privacy interests associated with the information found on today’s digital devices, and held that prior judicial authorization should be required for cell phone searches, subject to exigent circumstances.

Both sets of reasons display clear reasoning about a difficult problem. In this comment, I will trace both sets of reasoning in parallel and demonstrate where the two judgments diverge before closing with a few reflective thoughts.

Facts and Issues Before the Court

Kevin Fearon was arrested following an armed robbery of a jewellery merchant at a Toronto market in July 2009. Upon arrest, a pat-down search revealed Fearon’s cell phone, which was accessed at both that moment and again later at the police station. An incriminating text message and incriminating photographs were found on the device.

At trial and on appeal, Fearon argued that both searches violated his section 8 Charter rights and sought to have the inculpatory text message and photograph excluded under section 24(2) of the Charter. In response, the Crown argued that the searches were particular uses of the common law police power to search a suspect incident to arrest, and therefore reasonable under section 8 of the Charter. Both the trial judge and the Ontario Court of Appeal found in favour of the Crown. Fearon appealed from the Court of Appeal’s decision.

Justice Cromwell stated the issues before the Supreme Court as follows:

  1. Was the search incident to arrest unreasonable and therefore contrary to section 8 of the Charter?
  2. If so, should the evidence be excluded under section 24(2) of the Charter?

The Common Law Police Power and the Need for Balancing

At common law, police can search a lawfully arrested person and their immediate surroundings when that search is “properly incidental to the arrest.” This “power to search incident to arrest” evolved as an exception to the general requirement of judicial pre-authorization for searches (Fearon, para 122). A search is properly incidental to an arrest when it is reasonably undertaken in pursuit of a valid law enforcement objective connected to the arrest, such as public or police safety, preservation of evidence, or the discovery of evidence (see R v Caslake, [1998] 1 SCR 51, para 19 [Caslake] and R vNolet, [2001] 1 SCR 851, para 49.) The exception recognizes that in some instances, the immediate needs of law enforcement authorities may outweigh an arrested individual’s privacy interest (Caslake, para 17).

The jurisprudence around this common law power has recognized that, as a general rule, law enforcement interests will outweigh the privacy interest that an arrested person has in her immediate vicinity, justifying a search incident to arrest. However, as noted by Karakatsanis J, “where the underlying assumptions change ― be it due to the exigencies of law enforcement or the privacy interest impacted by the search ― the constitutional balance must be reassessed” (Fearon, para 125).

Fearon is just such a case. In what follows, I will rehearse how both the majority and dissent understand the individual and law enforcement interests at stake, and, as a result, how they strike what they both take to be the “correct” balance between the two.

Nature of Privacy Interests Engaged

The majority began by recognizing that digital devices implicate important privacy interests that are different in nature and extent from the search of other ‘places’: they have immense storage capacity, may generate information about intimate details of users interests and habits without their knowledge or intent, can retain information even after the user believes the information to be destroyed, and may provide access to information that is not strictly present at the scene of the search (Fearon, para 51, quoting R v Vu, [2013] 3 SCR 657, paras 41-44). The majority also recognized that cell phones, locked or unlocked, engage significant privacy interests, and that a cell phone searched incident to arrest has the potential to be “a much more significant invasion of privacy than the typical search incident to arrest” (Fearon, para 58).

However, Cromwell J then introduces three qualifications that limit the significance of privacy invasion in these sorts of cases. First, Cromwell J writes that not every search is inevitably a significant intrusion. This seems to motivate an implicit reduction in the overall value of the privacy for the interest in the evaluation, as evidenced by his statement that “the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones” (para 55).

Second, he notes that a person who has been lawfully arrested has a lower reasonable expectation of privacy than persons not under lawful arrest (para 56, citing R v Beare, [1988] 2 SCR 387, page 413). Third, he holds that the common law requirement that the search be truly ‘incidental’ imposes some meaningful limits on the scope of a cell-phone search, preventing “routine browsing through a cell phone in an unfocussed way” (Fearon, para 57).

In addition, Cromwell J clearly draws a distinction between the proposed cell-phone searches made incident to arrest and two other kinds of searches that engage serious privacy concerns. He expressly distinguishes the proposed searches from non-consensual seizures of bodily samples categorically excluded from the common law power in R v Stillman, [1991] 1 SCR 607. Similarly, he notes that cell phone searches are not as invasive as the strip searches which, if undertaken incident to arrest, must follow certain protocols (see R v Golden, [2001] 3 SCR 679 [Golden]).

These points, taken together, suggest that although the majority recognizes that digital devices raise significant privacy concerns, they seem cautious not to overemphasize the seriousness of those interests.

In dissent, Justice Karakatsanis provides a very different understanding of the privacy interests at stake. Like Justice Cromwell, she begins by recognizing the unique features of digital devices, but draws stronger conclusions about the nature of the privacy interests those features engage. She notes that the massive amounts of seemingly mundane information stored on the phones have the potential “to reveal aspects of our most private lives” (para 128). Indeed, she finds that the storage of these details makes an intrusion into the device an unprecedented compromise of our privacy interests. This compromise is compounded by the ability to remotely access information on other personal devices through any one device.

She then likens the cell phone to a “key or portal” which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. Completing the conceit, she writes:

The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm (para 132).

Indeed, Justice Karakatsanis goes as far to suggest that the incredible and unique power of modern digital communication devices means that they can be “even more threatening to our privacy than the search of our homes” (para 134, emphasis mine). In the same paragraph, she rejects the majority’s view that we can meaningfully distinguish cell phone searches from other recognized invasive searches such as strip searches or the seizure of bodily samples.

In the view of the dissent, then, we ought not to underemphasize the depth of the privacy interests engaged by the proposed searches – the ability of digital devices to expose our private lives should not be underestimated.

Value for Law Enforcement

For the majority, Justice Cromwell affirms that cell phone searches conducted incidental to lawful arrest can serve important law enforcement objectives, including the safety of the public, the preservation of evidence, and the discovery of evidence. Having prompt access to the contents of a cell phone can held identify accomplices, locate or preserve hidden evidence, and to stop others from evading or resisting law enforcement (paras 47-48). Overall, the majority’s position seems to suggest that these searches will be particularly efficacious and valuable in law enforcement efforts.

In dissent, Justice Karakatasanis admits that the proposed searches will often be very useful for law enforcement. However, in light of the significant privacy interests engaged, only the most pressing of state interests will justify a warrantless search. It is her position that the existing doctrine of exigent circumstances – which allows for officers to conduct warrantless searches if there is a reasonable basis to suspect that a search may prevent an imminent threat to safety or there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by such a search – already provides protection in such pressing instances (para 137). Extending the common law power to cover digital devices, on this view, would be unprincipled.

However, she does recognize that requiring a warrant absent exigent circumstances comes at a cost: police may be unable to discover valuable evidence or have their investigation delayed. This cost has to be weighed against the privacy interests engaged by a warrantless search. In her view, because such a search is analogous to the search of the body or of the home, allowing it to occur incident to an arrest is not proportionate to our privacy interests (para 152).

The Resulting Schemes

Having rehearsed the respective value assessments of each judgment, we can now turn to the balance struck in their resulting schemes.

The majority acknowledges that the privacy interests engaged by digital devices requires that the common law framework for searches incidental to arrest requires modification in the case of cell phone searches (para 58). Justice Cromwell then goes on to discuss several potential, but in his view, inappropriate modifications, before providing his own scheme.

Of particular interest is Justice Cromwell’s rejection of the dissent’s proposal of limiting searches to exigent circumstances. In his view, prohibiting the proposed searches in all but exceptional circumstances “gives almost no weight to the law enforcement objectives served by the search” (para 70). Imposing a requirement of urgency (or imminence) would “effectively gut” the pursuit of these objectives.

As a result of this view, he argues that our focus should be on providing measures that limit the potential invasion of cell phone search while still fulfilling the objectives served by searches incident to arrest. In his view, three such modifications would do this:

  1. The scope of the search must be tailored for the purpose for which it may be lawfully conducted. That is, the “nature and extent” of the search must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, only recently sent or drafted emails, texts, and photos, and the call log may be searched. However, this is not a hard and fast rule – the test is whether the nature and extent of the search are tailored to the search’s purpose.
  2. The discovery of evidence purpose for a search incidental to arrest must be treated restrictively. That is, a warrantless search can only be performed for the discovery of evidence when the “investigation will be stymied or significantly hampered” if the cell phone cannot be promptly searched.
  3. Officers must make detailed notes of what they have examined on the phone. Justice Cromwell frames this as a “constitutional imperative,” and writes that record keeping will facilitate after-the-fact judicial review and have the officers focus on the question of whether their conduct falls within their common law powers.

Justice Cromwell provides a clear summary of the new scheme at paragraph 83 of his reasons. They now represent Canadian law with respect to cell phone searches conducted incident to an arrest.

The dissenting scheme looks much different. As noted above, Justice Karakatsanis would hold that the correct balance is struck by requiring judicial pre-authorization for cell phone searches, absent exigent circumstances. In her view, no other option adequately protects our reasonable expectation of privacy in our digital devices (para 159). Her reasons are as follows.

Her first considerations are pragmatic. In her view, contrary to the majority’s suggestion, it is difficult, if not impossible to perform a meaningfully constrained or targeted inspection of a cell phone or other device. Searching for communications or photos relevant to the investigation will need to search a whole host of applications. Additionally, this would lead to increased uncertainty for police and result in an increase in post-facto litigation of the searches.

Her second consideration is that an approach not requiring judicial pre-authorization – such as the approach of the majority — puts the balancing decision in the hands of the police. Although she does not doubt that the police will act in good faith when called upon, she does not think that they are in the best position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusions of privacy.

Finally, she holds that the doctrine of exigent circumstances avoids the pragmatic and concerns for justice associated with the majority’s scheme. The resulting framework of the dissent is as follows: a warrantless search of a cell phone on arrest will be justified when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search (para 179).

Commentary & Conclusion

The conclusions arrived at by both sets of reasons flow neatly from the premises they follow from. In the strict, formal sense, both decisions seem relatively impeachable. Whether we ought to endorse one conclusion or the other likely turns on empirical realities underlying their premises.

At this point, however, those realities do not seem clear. To what extent will Fearon searches actually increase the efficacy of police investigations? If searches are peformed in vain, what remedies are available for those whose privacy has been violated? By the same token, how accurate is Justice Karakatsanis’ characterization of the cell phone as the key to an individual’s digital life? Perhaps, in instances of uncertainty about the appropriate level of rights protection, we ought to err on the side of caution.