Supreme Court to rule on privacy rights for cellphone users arrested by police

OTTAWA – The Supreme Court of Canada delivers a precedent-setting ruling Thursday that’s expected to dictate how much warrantless access police can have to a person’s cellphone.

The case centres on a 2009 armed robbery at a Toronto jewelry kiosk that saw police seize and search the cellphone of Kevin Fearon.

Police were responding to a call about the robbery when they arrested Fearon. Upon perusing his unlocked cellphone, they found photos of cash and a gun, as well as a text message mentioning jewelry.

A judge convicted Fearon after rejecting his lawyer’s argument that his Charter right to unlawful search and seizure had been breached because police didn’t immediately get a search warrant to look at his phone.

The Ontario Court of Appeal agreed, ruling it was acceptable for police to take a cursory look through the phone if they thought it contained relevant evidence to a crime.

The court ruled that if the phone had been password-protected or locked, it would not have been appropriate to look at its contents without a search warrant.

It will be the first time the Supreme Court has ruled on cellphone privacy.

The high court will be attempting to bring some clarity and consistency to an issue that has been addressed by a series of previous lower court rulings dealing with what police can do without a warrant with a cellphone after an arrest.

Those rulings have found:

— The police are allowed to search your phone.

— Cursory searches are permissible.

— Police are not allowed to dump all the data from a phone to an external drive.

— Police can search the phone because of “exigent circumstances” — an imminent threat or danger that overrides privacy.