Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search or seizure. The purpose of this section of the Charter is to protect the privacy interests of all persons in Canada. There is no doubt that many people have personal, private and sometimes sensitive information on their cell phones that they wish to keep private.

This means that any search of a person’s cell phone by police must be reasonable in law. To be reasonable, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner.

Do police need a search warrant to search my phone?

Generally, police need to obtain a search warrant before searching a cell phone. A search warrant can only be obtained after police convince a justice, under oath, that there are reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search.

However, there are exceptions to this general rule.

When can police search my phone without a search warrant?

One of those expectations is if the search is incident to an arrest. In R. v. Fearon [2014] SCC 77, the Supreme Court of Canada decided that police have the right to search a person’s cell phone incident to an arrest if four conditions are satisfied:

1. The arrest must have been lawful
2. The search must be truly incidental to the arrest
3. The nature and the extent of the search must be tailored to its purpose
4. The police must take detailed notes

The arrest must have been lawful

This generally means that police must have reasonable grounds (based on facts and circumstances) to believe that the person has committed a criminal offence.

If the arrest itself was unlawful, then any search conducted incident to the arrest was unauthorized by law.

The search must be truly incidental to the arrest

A search that is incidental to arrest is when the police conduct a search promptly after they arrest someone for a valid law enforcement purpose.

For a search incidental to arrest to be valid, it must be conducted for one of the following purposes:

• to protect the police, the public and/or the accused,
• to preserve evidence, or
• if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, to discover evidence.

This allows police to search for any information that may harm another person and for evidence that the suspect may try to destroy. It also allows police search for information that may help locate additional suspects.

The nature and the extent of the search must be tailored to its purpose

The incidental search authority does not allow police to rummage through your phone at will.

The nature and extent of the cell phone search must be limited to information which police reasonably consider to be relevant to their investigation. In practice, this means that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.

The police must take detailed notes

Police officers must take note of what device(s) they searched, the purpose of the search, how the search was conducted, the applications searched on the phone, the time and duration of the search and any evidence that was found.

In Fearon, the Supreme Court found the accused person’s rights had been violated because the police didn’t take sufficient notes about the search and couldn’t testify as to how or why the cell phone had been searched.

Am I obligated to give my password to the police?

The police cannot compel an accused person to provide his or her password to enable them to conduct a cell phone search. Police can, however, ask a person to voluntarily provide their password and consent to a search and, if the person does, police may search their cell phone.

Police are allowed to access the information in a cell phone through other means if the search itself is legal.

What if my phone doesn’t have a password?

The absence of a password on a cell phone does not automatically mean that police are entitled to search the phone. The Ontario Court of Appeal has held that the fact that a person’s cell phone was not password protected does not reduce his or her expectation of privacy nor does it indicate an abandonment of the person’s privacy rights and interests.

What do I do if police ask for permission to search my phone?

If police ask for permission to search your phone, you can simply say, “I do not consent to my cell phone been search.” If police proceed to search your cell phone after you have denied consent may mean that your rights under the Charter have been violated and you may have a remedy.

If you have been arrested or had your cell phone searched, call Hogan Law Criminal Law Firm for help

If you believe that police have improperly arrested you or improperly searched your cell phone in order to obtain evidence against you in criminal proceedings, call Hogan Law immediately. Our team of experienced criminal lawyers will examine your case and fight for your rights.

Mark Hogan defends criminal charges such as Assaults, Domestic Assault, Assault with a Weapon,  Aggravated Assault, Sexual Assault, Uttering Threats, Forcible Confinement, Criminal Harassment, Bail Hearings, Drug Production, Drug Possession, Drug Trafficking, Fraud, Impaired Driving, Over 80, Refuse to Provide a Breath Sample, Theft, Robbery, and Breaking and Entering in Southern Ontario including Toronto GTA, Mississauga, Hamilton, Burlington, Milton, Brampton, Newmarket, Ajax, Pickering and Oshawa.

If you have been charged with a criminal offence, call Mark Hogan Criminal Defence Lawyer today for a FREE CONSULTATION! Call (416) 200-7005 (24/7).