The Fearon Threat
- February 2, 2015
- Clayton Rice, Q.C.
On June 25, 2014, the Supreme Court of the United States released its unanimous judgment in Riley v. California, 573 U.S. 1 (2014) in which it was held that a warrantless search and seizure of digital contents of a cell phone during an arrest violated the Fourth Amendment and was unconstitutional. In my post dated July 2, 2014, titled “Fourth Amendment Protects Cell Phone Privacy” I said that the reasoning in Riley together with the Supreme Court of Canada’s analysis regarding computer searches in R. v. Vu, 2013 SCC 60,  3 S.C.R. 657 provided compelling reasons for the Supreme Court of Canada to follow the lead of the Supreme Court of the United States.
The extension of Charter s. 8 protection to smartphones based on Riley appeared to be a trite application of the recognition of the high expectation of privacy Canadians have in computers that received constitutional protection in Vu. The portable computer, often called a smartphone, is indistinguishable from a laptop computer or a desktop computer other than that the former has a telephone feature. The constitutional protection of the digital person on a smartphone was, in my mind, compelling and inevitable. I was wrong.
In R. v. Fearon, 2014 SCC 77 Justice Thomas A. Cromwell, in a narrow 4-3 majority opinion, came to the startling conclusion, at para. 83, that warrantless searches of cell phones by the police incidental to an arrest will comply with s. 8 of the Charter where:
“(1) The arrest was lawful; (2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (a) protecting the police, the accused, or the public; (b) preserving evidence; or (c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest; (3) The nature and the extent of the search are tailored to the purpose of the search; and (4) The police take detailed notes of what they have examined on the device and how it was searched.”
On December 11, 2014, the judgment was met with surprise, concern and outrage by the public. The CBC reported that, “…many readers think the ruling gives law enforcement officers too much discretionary power, and can lead to possible privacy intrusion.” Many of the CBC online responses were critical: one commentator said that “too much depends on the discretion of the police”; another suggested that the decision “does not serve the public good”; and a third wryly quipped “so now cops can just take your phone away and delete any videos you take of them breaking the law…makes sense.”
The Toronto Star online exchanges were more pointed. One contributor found the judgment to be “disgraceful, embarrassing and frightening”; another said that the ruling “chops another bit at the right to privacy we thought we had”; and another suggested: “Those 4 judges…should be deported. They do not represent the Canadian public.”
The critics would have found solace in the dissenting opinion of Madam Justice Andromache Karakatsanis who made this observation, at para. 128: “The data storage capacity of a phone can vastly exceed what an individual could carry on their person or in a briefcase: thousands of pictures, messages, or videos. When combined in sufficient quantities, even individually mundane pieces of information have the potential to reveal aspects of our most private lives.” She went on, at para. 129, to state that any intrusion into a cell phone compromises our privacy interest in an unprecedented way. And further, at para. 134, she characterized the privacy interest in digital communication devices as follows:
“The privacy interest in a cell phone or other digital communication and storage device is extremely high. The ability of these devices to generate, store, process, communicate and share truly massive quantities of deeply private information explains their usefulness and the way in which they have revolutionized modern society. At the same time, these impressive capacities underlie the necessity for rigorous protection of users’ privacy. The incredible and unique power of modern digital communications devices as portals to vast stores of information – and their ability to expose our private lives – means that they can be even more threatening to our privacy than the search of our homes.”
How, then, could the majority properly defend warrantless searches of cell phones as an incident of arrest? In my view, they could not and did not. That is the simple answer. If the rule in Fearon does anything, it is a good reminder of Justice Robert H. Jackson’s famous aphorism about the Supreme Court of the United States in Brown v. Allen, 344 U.S. 443 (1953): “We are not final because we are infallible, but we are infallible only because we are final.” I say that the majority opinion is indefensible for these reasons.
The majority is buoyed by an undercurrent of fear. The fear appears to be that evidence or investigative opportunity will be lost if the police are required to obtain a warrant to search a cell phone incidental to arrest. Justice Cromwell said this, at para. 48: “Cell phones are used to facilitate criminal activity. For example, cell phones ‘are the bread and butter of the drug trade and the means by which drugs are marketed on the street’…Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed.”
That makes no sense. Presumably the cell phone is in the possession of the police. It was lawfully seized from an arrested person. It is not going anywhere. What is wrong with getting a warrant if the police have probable cause to search it? Parliament has given the police the investigative tool of a telewarrant. Use it. The concern cannot be remote wiping as that was sufficiently debunked in Riley although Justice Cromwell does not acknowledge that analysis. And nowhere does he tell Canadians why their privacy interests are entitled to less constitutional protection than Americans.
Instead, Justice Cromwell gives us this rationale, stunning in its breadth, at para. 66: “To restrict a cell phone search to situations in which the officers have reasonable and probable cause to believe that evidence of the offence will be found on the cell phone, to my way of thinking, effectively precludes prompt access to what may be very important information which is required for the immediate purposes of the unfolding investigation.” That is a fishing expedition and is exactly what Charter s. 8 prohibits. Fishing expeditions by agents of the state undermine the security of all Canadians and expose us to the threat of police misconduct.
In my post titled “Privacy and Personal Autonomy” dated January 2, 2015, I discussed the right to be secure from unreasonable search and seizure as the right to be left alone. It has been settled in Canadian constitutional law since Hunter v. Southam et al,  2 S.C.R. 145 that if the police cannot obtain evidence in a way that complies with Charter s. 8 they must leave the citizen alone and not charge ahead and obtain evidence in an unconstitutional manner. The same can be repeated in the context of the discussion here. If the police cannot obtain evidence from a cell phone in a way that complies with the warrant requirement, then they simply do not get it. They have to leave the citizen alone. As Justice Karakatsanis stated at para. 154, “…the state interest in acquiring evidence is not absolute.”
The requirement that the police must have an objectively verifiable law enforcement purpose is a standard that dismantles the warrant requirement set down in Hunter over thirty years ago. This new rule in Fearon is one of post facto review applicable on an evidence suppression motion under Charter s. 24(2). It appears that Justice Cromwell forgot what he said as a member of the Nova Scotia Court of Appeal in R. v. Morris (1998), 134 C.C.C. (3d) 539 at para. 35: “…[T]he purpose of the prior authorization requirement must be kept in mind…[T]hat purpose is to prevent unreasonable searches, not to condemn them after the fact.”
The requirement that the police keep detailed notes is a mystery. The police are required to keep notes in every investigation. That was recently affirmed in Wood v. Schaeffer, 2013 SCC 71,  3 S.C.R. 1053. Justice Cromwell said nothing new here. But, more importantly, this requirement is susceptible to abuse by rogue police officers who conduct intrusive searches of cell phone data and do not take notes. Who will know?
The twofold test of an objectively verifiable law enforcement purpose and detailed notes will foster unnecessary litigation generated by evidence exclusion motions. What is equally troubling is that the Fearon rule will saddle defendants with increased litigation costs and place more stress on an already overburdened court system. Justice Karakatsanis, at para. 105, criticized the majority for creating an “overly complicated template” that does not ensure sufficient protection. She concluded that the balancing of individual security and the state interest in law enforcement can only be achieved by judicial preauthorization. She expressed a very real concern at para. 117 that, “…the threat of unreasonable intrusions on privacy (and not only the unreasonable intrusion itself) is enough to undermine the values served by privacy.” The Fearon rule is alarming not only for what it does but for what it threatens to do.
Justice Cromwell reached a primitive result because his rudimentary reasoning is based in a flawed premise. He began his analysis, at para. 54, this way: “…[W]hile cell phone searches – especially searches of ‘smart phones’, which are the functional equivalent of computers – may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion.” I disagree. I disagree because I begin from the same premise as Justice Karakatsanis that all searches of cell phones are significant intrusions of privacy.
Professor Daniel J. Solove of the George Washington University Law School begins his book, The Digital Person: Technology and Privacy in the Information Age (2004), with this observation at p. 1: “Digital technology enables the preservation of the minutia of our everyday comings and goings, of our likes and dislikes, of who we are and what we own. It is ever more possible to create an electronic collage that covers much of a person’s life – a life captured in records, a digital person composed in the collective computer networks of the world.” In Fearon, Justice Karakatsanis was sensitive to this reality at para. 132:
“…[T]he cell phone acts like 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. It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices. 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. Indeed, personal digital devices are becoming as ubiquitous as the house key. Increasingly large numbers of people carry such devices with them everywhere they go (be they cell phones, mobile computers, smart watches, smart glasses, or tablets).”
Many Canadians use smartphones for personal and business purposes. Apart from the vast store of personal information that creates the digital person, the smartphone may contain data relating to trade secrets, intellectual property, employment records and other privileged or confidential information entrusted to the person by employers, business associates and other third parties. All of that is at risk under the threat of the Fearon rule. Living under this threat is now a reality for all Canadians.
Justice Cromwell is correct where he stated, at para. 56, that a person who has been lawfully arrested has a lower expectation of privacy. But, of course, a lower expectation of privacy does not mean none at all. And it is critical to understand the distinction between the lower expectation of privacy in the physical person and the high expectation of privacy in the digital person. The two are conflated in the majority opinion, at para. 83(2)(c), where Justice Cromwell stated that discovering evidence is a valid law enforcement purpose. That kind of search, called a fishing expedition, has always been unconstitutional. Justice Cromwell’s misunderstanding is rooted in a failure to appreciate that although a physical person under arrest may have a reduced expectation of privacy that does not result in a corresponding reduced expectation of privacy in the digital person stored on a smartphone.
This conceptual distinction is not new in Canadian constitutional law. An arrest warrant is a good example. The police, armed with an arrest warrant, may knock on the door of an individual’s residence and arrest the person when he responds. They may not, however, enter the residence without specific authorization called a Feeney warrant. The Feeney warrant borrows its name from the case of R. v. Fenney,  2 S.C.R. 13 that resulted in Parliament enacting s. 529.1 of the Criminal Code which contains the legal regime governing warrants to enter a dwelling house for the purpose of an arrest. The Feeney warrant maintains the distinction between the person and the place where the person resides that has attracted strict application by appellate and trial courts; e.g. R. v. Adams (2001), 157 C.C.C. (3d) 129 (Ont. C.A.) and R. v. Alcantara, 2012 ABQB 341, 546 A.R. 1. In the twenty-first century, Canadians inhabit their smartphones no less than they inhabit their homes. There is no privacy distinction when the knock comes on the door of a residence and when it comes on the door of a smartphone. The Fearon rule misunderstands this reality of the digital age.