Can’t Take It

Can the police seize a computer (without searching it) if only one of its co-owners consents?

In R v Reeves, 2018 SCC 56, delivered last week, the Supreme Court held that section 8 of the Canadian Charter of Rights and Freedoms, which protects the right not to be subject to unreasonable search and seizure, prevents the police from seizing (even without searching) a computer located in the common area of a home with the consent of only one, but not the other of the home’s occupiers. As in a number of other search-and-seizure cases, it is Justice Karakatsanis who takes the lead in articulating a narrow view the police powers. Unlike in R v Fearon, 2014 SCC 77, [2014] SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518 she carries a strong majority of her colleagues ― all but one, in fact, on this issue ― with her. And unlike in those two cases, I suspect that Justice Karakatsanis’ pro-privacy disposition has not served her well.

The facts of the case are somewhat quirky. Mr. Reeves had shared a home ― and a computer ― with his common-law spouse, Ms. Gravelle. So far, so ordinary. However, following a family violence incident, Mr. Reeves was barred from being at the home without Ms. Gravelle’s consent, which she eventually withdrew. Still, as a matter of property rights, both the home and the computer were still shared between Mr. Reeves and Ms. Gravelle. Ms. Gravelle also informed the authorities that she had previously found child pornography on the computer. A police officer came, and, with Ms. Gravelle’s consent, he took the computer back to the police station ― where it sat, seemingly of no interest to anyone, for four months, despite the Criminal Code requiring such seizures to be reported to a justice of the peace. Eventually, the police finally concocted a warrant application ― which the trial judge later found to be tendentious and deficient to the point of invalidating the warrant ― and searched the computer, duly finding the child pornography, leading to charges against Mr. Reeves, who argued that the evidence was obtained in violation of his Charter rights and should be excluded.

 There were two possible violations of Mr. Reeves’ rights for the Supreme Court to look into. First, the police officer’s entry into and search of the shared home; second, the seizure of the shared computer. (There was no dispute that the lengthy detention of the computer in violation of the Criminal Code and its search pursuant to a warrant that was subsequently invalidated were constitutionally problematic.) However, for the majority, Justice Karakatsanis does not pronounce on the requirements of the Charter with respect to police entry into a shared home with the consent of only one of its occupiers. She finds that the matter is best left for another time, when it will be more fully argued. Justice Moldaver, in a concurring opinion, agrees that now is not the time to dispose of the question ― and proceeds to lay out a detailed case for why the police have a common law power to enter to speak with one co-occupier of a shared home, while insisting that this argument is only tentative.

For the majority, the case turns on the question of the seizure of the computer. This, in turn, divides into two sub-issues: first, whether Mr. Reeves had a “reasonable expectation of privacy” in the machine; and second, whether Ms. Gravelle could obviate or waive his rights by consenting to the seizure anyway.

As Justice Karakatsanis explains, “[t]he reasonable expectation of privacy standard is normative, rather than descriptive” [28] ― it is not really about what the person concerned expected his or her privacy rights to be in the circumstances, but about where the balance between privacy and societal interests (in particular, in the investigation and punishment of offences) ought to be struck. In deciding this question, Justice Karakatsanis insists that “the subject matter of the seizure was the computer, and ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted”. [30] Even though, as the Supreme Court previously held, a separate warrant would be required to actually search the data contained in the computer, “Reeves’ informational privacy interests in the computer data were still implicated” [30] because he lost control of it, including the ability to destroy it. The data computers contain can be “highly private” [34], and thus not only the search, but also the mere seizure of “a personal computer from a home” “presumptively require[s]” “specific, prior judicial authorization”. [35] This is so even when the computer is shared and no one individual can expect absolute privacy when using it.

As for a co-occupier of a home consenting to the police seizing a shared computer, it “cannot nullify” [41] an existing reasonable expectation of privacy: “[t]he decision to share with others does not come at such a high price in a free and democratic society”. [44] Those others can report suspicions to the police, but it does not follow that the police can do anything they (the others, that is) consent to. It is not their (the others’) rights that are at stake, after all, and the fact that they too may have rights or privacy expectations over the same object or space is beside the point. As for what the police can do if a person actually brings an object in which another has a reasonable expectation of privacy to them, that “remains for another day”. [46] 

In the event, the majority, as well as Justice Moldaver, conclude that the Charter breaches in this case are serious enough to warrant excluding the evidence found Mr. Reeves’ computer. Justice Côté, in a concurring opinion, agrees with this outcome ― even though, as I am about to explain, she does not think that the seizure of the computer amounted to a Charter breach at all. (The Supreme Court, which only considers outcomes in its statistics, will triumphantly count Reeves as yet another unanimous decision ― yet as Peter McCormick recently explained here, it is a mistake to do so.)

On the key issue of the case ― the application of section 8 of the Charter to shared spaces and objects ― Justice Côté takes an approach that is the opposite of the majority’s. Unlike Justice Karakatsanis, Justice Côté directly addresses the question of whether police can enter shared spaces with the consent of a single occupier ― and answers in the affirmative, albeit with a possible qualification. Justice Côté writes that “it is not objectively reasonable for a cohabitant … to expect to be able to veto another cohabitant’s decision to allow the police to enter any areas of that home that they share equally”. [112] Such a veto would amount to a negation of “consenting cohabitant’s liberty and autonomy interests with respect to those spaces”. [112] It would also “require the police to identify, locate and obtain the consent of every person who lives in the home, or has any expectation of privacy with respect to common areas of the home”, [114] which is likely to be unduly burdensome at best, if not quite impossible. And applying this approach to shared virtual spaces or objects ― say, a text messaging chain ― would produce similarly perverse consequences. Meanwhile, the search of common areas of a shared home is unlikely to produce intrusions into a person’s deepest secrets.

Justice Côté takes a similar approach to the seizure of a shared computer. While acknowledging that searching such a computer would require prior authorization, she argues that the mere seizure consented by one of the computer’s co-users is not a violation of the other co-users’ rights ― and thus disagrees with the majority on this key point. Again, it is not reasonable to expect that a co-user will not allow the authorities to seize a shared computer, and concluding otherwise would deny the co-user’s  autonomy. The context of co-ownership and joint control influences the scope of one’s reasonable expectation of privacy. Furthermore, Justice Côté stresses the fact that only the seizure of the physical object, not the information it contains, is at issue, and reproaches the majority for conflating the two. She also points out that the majority’s approach may well amount to recognizing an expectation of privacy not just in favour of a co-owner of a computer, but also of, say, a guest who used it at some point in the past. Justice Côté adds that of course a co-owner should be able to take a shared computer to the police ― and letting the police take it is no different.

As noted at the outset, I am inclined to think that Justice Karakatsanis has indeed gone too far in protecting privacy here. Justice Côté is right that the majority conflate interests in maintaining control of a physical object and those in ensuring the privacy of the data that this object contains. And it is true that, by effectively granting a veto to each co-user (and perhaps even a past user ― perhaps the majority would distinguish that case, but it is indeed unclear how, and it’s unfortunate that Justice Karakatsanis doesn’t address the point), the majority compromise the autonomy ― and interfere with legitimate interests ― of other co-users. It would, as Justice Côté says, be odd if such people couldn’t take things of which they have legitimate control to the police ― and no less odd if they could not invite the police to take such things.

At the same time, a couple of points bother me about Justice Côté’s reasons. First, she might be too sanguine about the prospect of police not gaining access to particularly private information in common areas of shared dwellings. This may indeed be a reasonable assumption if the people living together are what in North America are misleadingly called) room-mates, and elsewhere, more accurately, flat-mates, who each have a private room. But if they are spouses, or otherwise family members, the distinction between common and private spaces within the shared home may not be drawn with any clarity. Perhaps this does not matter after all, but Justice Côté would have done well to address this issue.

I also am somewhat puzzled by Justice Côté’s references to the odd circumstance that Mr. Reeves had lost access to the theoretically-shared home and computer that were the objects of the police’s interest here. It’s not quite clear how much this fact matters to Justice Côté’s conclusions. I think it’s not particularly significant in her reasoning regarding police entry into a shared dwelling, but on the seizure issue, Justice Côté explicitly says that it is “relevant” that Mr. Reeves “lacked control [of the computer] as a result of his own actions”. [130] Yet not only was this “result” an indirect and unintended, albeit foreseeable one, but, more importantly, one is left in some doubt about how Justice Côté thinks more ordinary cases, where this “relevant” factor will not be present, ought to be decided.

Ultimately, Reeves might not be a very important case. The one issue it actually decides, whether police can seize shared computers with the consent of one but not all of their users, may not recur all that often, insofar as people increasingly use personal laptops, tablets, or smartphones. I don’t actually know if they do, but I suspect that they might. Perhaps its chief interest is in the trends that it confirms: Justice Karakatsanis’ role as the Supreme Court’s leading pro-privacy voice, and Justice Côté’s as its leading independent thinker. On the whole, the Court needs both, even when they disagree, and even in cases where neither is quite right. 

Ceci est-il une conversation?

The Supreme Court holds we can expect our text messages to remain private, even on other people`s phones

Last week, the Supreme Court released its eagerly-awaited judgment in R v Marakah, 2017 SCC 59, holding that a person had standing to challenge the admissibility of text messages to which he was a party but which the police had seized from another’s cell phone. The Chief Justice wrote the majority opinion, in which Justices Abella, Karakatsanis, and Gascon concurred. Justice Rowe wrote a brief concurrence, raising some concerns about the future implications of the majority opinion, with which he nevertheless agreed. Justice Moldaver, with the agreement of Justice Côté, wrote a fierce, strongly-worded dissent.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.  This right applies when a person has an objectively reasonable “expectation of privacy” in the thing or information that is the object of the search or seizure. There is no question that Mr Marakah wanted and expected his exchange of text messages with an accomplice in a weapons-trafficking venture to remain private. But was he entitled to expect that the police would not read these messages on that accomplice’s phone?

The majority and Justice Rowe think that he was. As the Chief Justice put it, the

interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. [28]

The information exchanged in these nooks and crannies of cyberspace is, potentially, highly private, and indeed “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications”. [33] Crucially,

this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private. [37]

The fact that we might not control all the devices through which this information is accessible is not especially important. It is the information exchanged, the conversation, that is the subject of the expectation of privacy, not whatever device might allow one it view it. And even the fact the person with whom one is texting could disclose the fact or the content of the conversation does not allow the state to read it.

Justice Moldaver disagrees. For him, control is a key factor in the analysis. Justice Moldaver writes that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search”, and “[w]here an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable”. [98] Justice Moldaver gives a number of examples: DNA in one’s body is private, but DNA traces left on, say, the body of a victim of a crime are not; thoughts recorded in a private diary are private, but not those publicly shared online. [116] While control does not require ownership or exclusivity of access, a lack of control means that information is not in a meaningful sense private.

When it comes to conversations, including conversations conducted by text messaging, Justice Moldaver is of the view that one loses control over what one has said once one has said it. What one’s interlocutor’s phone records is “an independent record”, [128] similar to the notes one might make after a spoken conversation, and within the interlocutor’s exclusive control. Evesdropping on an ongoing conversation, or intercepting text messages as they are being sent, violates a reasonable expectation of privacy. By contrast, just as each party to a conservation is free to share a record or recollection of it, and his or her interlocutor can (subject to any applicable privacy legislation) have no reasonable expectation of privacy in that record, so it is also with a “record” of a conversation conducted via text messaging.

Here, as I see it, is one important point of disagreement between the majority and the dissent. Both are ostensibly agreed that what Mr. Marakah had, or lacked, a reasonable expectation of privacy — or, in other words, “the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with” his accomplice. [17; 111] But it seems to me that while the majority does indeed approach the case as one about the privacy of a conversation, the dissent sees it as being not about a conversation as such, but rather about a record of a conversation. To repeat, Justice Moldaver accepts that “an electronic conversation” would be private; it could not be intercepted without due authorization. But the messages stored in the cell phone of one of the parties to the conversation are not the same thing. They are like the notes one of the interlocutors took. (Hence the title of this, in reference to René Magritte’s notorious The Treachery of Images, a.k.a. Ceci n’est pas une pipe.) As Justice Moldaver suggests, we can expect not to be eavesdropped on, when having a private conversation, but not necessarily that the contents of that conversation will never be revealed to third parties. So the majority decision makes sense in light of how it understood the issue, and the dissent makes sense in light of its author’s different understanding of the case.

But which of them is correct? I personally find this a very difficult question. A number of legal issues arising out of new technologies, broadly speaking, has to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles. One of my very early posts, for instance, was about a case that concerned an attempt by a university to punish students who ranted about their professor on Facebook. Student rants about a professor are nothing new, but the fact that they were made online rather than over beers left a record for the authorities to look into and to try (unsuccessfully in the event) suppressing. In a different way, the disagreement about the way to characterize text messaging “conversations” — often created in a spontaneous way, as if the parties were together in the same room, but a permanent record for the police to look at later — exemplifies the same set of difficulties. (This might come out most clearly in Justice Rowe’s brief concurrence.) On balance, though, I am inclined to think that Justice Moldaver’s view makes more sense. The idea of a never-finished conversation, to which one is always an ongoing party, and in which one is permanently entitled to expected privacy, which seems implicit in the majority’s approach, doesn’t quite make sense to me. This is a very tentative thought, however, and a minority view, I gather.

Beyond the characterization of “electronic conversations”, the Chief Justice and Justice Moldaver also disagree about the policy implications of the Supreme Court’s decision. In particular, Justice Moldaver worries that police will not be able to access, without a warrant, “electronic conversations” that are voluntarily tendered to them by one of the parties, even when the conversations are themselves crimes, and the parties disclosing them to the police are victims. A person may, for example, receive a threatening text message, and want to show it to police officers, but it is not clear that the police will be entitled to look without judicial authorization. At best, this will complicate the work of the police; at worst, serious crimes will go unpunished. The Chief Justice responds that these difficulties can be dealt with if and when they arise. For his part, Justice Rowe is not so sure, and I take that it is because he ” share[s] the concerns raised by Justice Moldaver as to the consequences of this decision” [89] that he goes to the trouble of writing separately.

A lot, then, remains to be decided. Privacy issues have been consistently difficult for the Supreme Court, or at any rate more consistently divisive than most others. I find these issues difficult too, so I have sympathy for judges on both sides. That the majority wants to be protective of privacy in a way the majority in R v Fearon, 2014 SCC 77, [2014] SCR 621 (which I criticized here) was not is heartening. (Some people on Twitter were wondering how many of the judges had got smartphones in the meantime. A cynical question, perhaps, but I’m not well placed to critcize those who are cynical about judges, am I?) The question now is whether the pendulum has swung too far in the direction of privacy. It might have, but we will have to wait to find out.

Not Such a Simple Thing

A divided Supreme Court expands the powers of search incident to arrest

A couple of weeks ago, the Supreme Court issued a decision, R. v. Saeed, 2016 SCC 24, that was further evidence of its majority’s expansive views of the police’s powers of search incident to arrest ― and trust in judicially developed checklists to prevent the abuse of these powers. Meanwhile, by writing an opinion which, although concurring with the majority in the result, rejected its approach, Justice Karakatsanis confirmed her role as the Court’s leading ― if only in dissent ― privacy-protecting voice. To that extent, the case was a reprise of the Court’s earlier decision in  R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where it considered the powers of the police to search an unlocked cell phone incident to arrest. (I commented on that case here.)

The issue in Saeed, was whether the police could conduct a penile swab on a man arrested on suspicion of sexual assault (or effectively force him to do it for them) in order to obtain the victim’s DNA ― without a warrant. In an opinion by Justice Moldaver, a seven-judge majority answered that question in the affirmative. Justice Karakatsanis disagreed, but would have admitted the evidence under section 24(2) of the Charter. Justice Abella dissented, endorsing Justice Karakatsanis’ approach to the main issue, but being of the view that the evidence was not admissible.

The friend of a victim of a brutal sexual assault having pointed to Mr. Saeed as the perpetrator, the police arrested him. Some time later, having concluded that a penile swab would potentially uncover useful evidence, the police placed Mr. Saeed, fully clothed, “in a dry cell, with no toilet or running water, to preserve the evidence. Mr. Saeed was handcuffed to the wall to prevent him from licking his hands or otherwise washing away evidence,” [18] for 30 or 40 minutes. Eventually, Mr. Saeed took the swab, under the direction of two male police officers, who were the only persons present. “The procedure took at most two minutes.” [25]

* * *

Justice Moldaver begins his reasons by asserting ― without much of an explanation ―  that “perhaps more than any other search power,” the “ancient and venerable power” of search incident to arrest “is used by the police on a daily basis to detect, prevent, and solve crimes.” [1] This power extends, he concludes, to the taking of a penile swab, although he “agree[s] that the common law power of search incident to arrest must be tailored to protect the enhanced privacy interests involved.” [42]

Despite the privacy implications, the taking of a penile swab is not, in Justice Moldaver’s view, analogous to that of a bodily sample ― which cannot be carried out as a search incident to arrest. The swab does not reveal information about the arrested person’s body ― it aim is to find the DNA of the complainant. It is also not particularly invasive ― or at any rate less invasive than the taking of dental impressions. Finally, the material it serves to collect can be removed quite quickly, whether deliberately or accidentally.

Justice Moldaver emphasizes the usefulness of collecting this material for prosecuting sexual assaults ― or indeed for exonerating an innocent suspect.  “This type of evidence,” he points out, “is highly reliable. It can be crucial in the case of complainants who are unable to testify, such as children, adults with disabilities, or those who have died or suffered serious injuries as a result of the offence or otherwise.” [59] For this reason, to require consent for a penile swab ― as the United Kingdom does ―  “effectively disregards the interests of victims of sexual assault … and all but ignores the public interest in bringing sexual offenders to justice.” [61] As for requiring a warrant, obtaining one takes time ― hours perhaps ― and thus involves “leaving accused persons to wait for an indefinite period in an uncomfortable and potentially degrading position,” “handcuffed without access to water or toilet facilities … in order to preserve the evidence.” [65]

Justice Moldaver cautions that a penile “swab must be truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest, and it must be performed for a valid purpose” [74]; that there must be reasonable grounds for conducting one; and that it must be conducted in a reasonable manner, to which end he supplies a list of 10 “factors” or guidelines, admonishing the police to proceed expeditiously, to explain the procedure to the arrested person, to respect his privacy to the extent possible, and to keep records. In Mr. Saeed’s case, the police acted consistently with these guidelines, and the evidence they collected is, accordingly, admissible.

* * *

As she had done in Fearon, Justice Karakatsanis takes a much narrower view of the power of search incident to arrest. She is much more concerned about the privacy interests of the accused, and more skeptical of the ability of courts to prevent abuses by supplying guidelines for the police.

For Justice Karakatsanis, a genital swab (notice, by the way, the gender-neutral terminology she uses, in contrast to Justice Moldaver) are no different from “mouth swabs, dental impressions and hair samples [which] cannot be taken as part of searches incident to arrest because they represent too great an infringement of bodily integrity and affront to privacy and dignity.” [99] Indeed,  “[a] swab of the genital area is far more damaging to personal dignity and privacy than a swab of the inside of the mouth or a pluck of hair from the head,” [101] and this is especially the case for a woman. That a genital swab doesn’t serve to collect information about the individual on whom it is conducted does not matter. The affront to the person’s dignity is the key consideration. However, whatever its purpose, “an effect of the seizure is to put the individual’s DNA in the hands of the state.” [104]

Justice Karakatsanis also notes that “if there is no lawful means by which the police could collect the evidence, ever,” ― and there may not be such means to collect the evidence yielded by a genital swab, as it is not clear that a warrant to collect it can be lawfully issued under the Criminal Code

it would not matter how long the evidence lasts.  Nothing would be lost when the evidence disappeared — no state interests would be compromised —because even if the evidence had survived, the police would have had no lawful authority to collect it. [108]

Further, Justice Karakatsanis argues that although it is not clear that it is actually necessary to handcuff a person in a dry cell in order to preserve the evidence while waiting for a genital swab, if it is,

this necessity could not be used to justify the greater affront to dignity that a genital swab would represent.  One indignity cannot justify another.  It would be ironic indeed if [section 8 of the Charter] did not protect individuals from the indignity of genital swabs precisely because it protects them from the indignity of detention in dry cells. [113]

Finally, Justice Karakatsanis is unconvinced that judicially developed safeguards can effectively protect the privacy interests of all those who may come into contact with the police ― and not only the subset of suspects who will be charged and thus have an opportunity to seek to exclude evidence against them. If Parliament wants to authorize genital swabs by statute, it can do so, but the common law power of search incident to arrest does not extend so far.

Justice Karakatsanis ultimately agrees that the evidence against Mr. Saeed should be admitted, because its admission does not bring the administration of justice into disrepute, not least because “the law on this issue was unsettled at the time of this seizure and the police acted on their understanding of the law.” [129] Justice Abella, who agrees with her section 8 analysis, does not agree with this and dissents.

* * *

For my part, I’m inclined to agree with Justice Karakatsanis. She is right that the distinction which Justice Moldaver draws between the swab at issue here and the taking of other bodily samples ― that the penile swab does not yield, or rather is not intended to yield, the DNA of the person on whom it is performed rather misses the point of the prohibition on taking bodily samples. I also think that she is right to focus on preventing unconstitutional infringements of privacy, and right that this is best accomplished by having clear prospective rules, and not lengthy checklist to be applied, if at all, by judges after the fact. Beyond these specific points, I am concerned by the expansion of the power of search incident to arrest ― including to cases where, as here, those searches take place many hours after the arrest, in the secure confines of a police station rather than in the unpredictable environment in the field. It hardly needs to be said that Justice Moldaver’s paean to that “venerable” power does nothing to soothe my worries.

I will end with a couple of thoughts about judging. It is sometimes suggested, in the heat of controversies about the judicial system’s handling of cases of sexual assault, that male judges systematically fail to empathize with the victims, leading to perpetrators getting off the hook. There is no denying that this sometimes happens. But Saeed shows that one should be careful with generalizations. Here, the Court’s five men sign on to an opinion overtly driven, in significant measure, by concerns about the difficulty of prosecuting sexual assaults. Two of the women members of the Court, by contrast, dissent from their approach, in the name of respect for privacy rights.

No doubt, a judge is influenced in part by his or her background and personal experiences. But that influence is surely more complex than a reflex that causes women to react in one way and men in another. Nor is background the only thing that influences a judge. Adjudication, even in cases involving sexual assault, should not be seen through the lens of a zero-sum battle of the sexes ― unless, of course, a specific judge gives us cause to do so in a specific case. Unless the evidence leads us to the opposite conclusion, we should treat judges as thinking human beings ― apt err sometimes, perhaps often ― but thinking all the same, and not mere automatons.

Call Dropped

Yesterday, the Supreme Court delivered its decision on the constitutionality of warrantless searches of cell phones incident to arrest, R. v. Fearon, 2014 SCC 77. By a 4-3 majority, the Court held that such searches are constitutional provided that some limits are respected. The dissent would only have allowed such searches in very limited “exigent circumstances.” Because Justice Cromwell’s majority opinion is somewhat vague in substance and ambiguous in tone, as well as for technological reasons, the consequences of this decision are uncertain, and may well prove quite limited. We should hope that they will, because Justice Karakatsanis’s dissent has the better of the argument.

Mr. Fearon was arrested on suspicion of involvement in an armed robbery. Police officers searched at the time of the arrest, as the law has long recognized their right to do, and found his cell phone, of the “dumb phone” variety, and searched it. They found a picture of a gun, later determined to be the gun with which the robbery had been committed, as well as a draft text message proclaiming that “we did it” ― it being quite clearly the robbery. The police searched the phone again later on, and yet again some six months later, after obtaining a warrant to search it and download its contents, but found nothing more of interest. At trial, Mr. Fearon applied to have the evidence of the phone search excluded, but the judge refused, as did the Ontario Court of Appeal.

***

Having reviewed the Supreme Court’s previous decisions dealing with searches incident to arrest, Justice Cromwell turns to the search in this case, emphasizing that it was done for one of the purposes recognized as legitimate in these cases ― the gathering of evidence. The police, he stresses, believed that searching the phone could lead them to other suspects or help them find the gun used in the robbery or the property stolen. Justice Cromwell notes that as a general matter, the power of search incident to arrest “is extraordinary because it requires neither a warrant nor reasonable and probable grounds,” [45] and insisted that

[t]hat the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested. [45]

Searches of cell phones, in particular, can be very useful to law enforcement. At the same time, says Justice Cromwell, “the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “‘places’.” [51] The amount of information such devices can contain and the things they can reveal about their users are without comparison to other objects or “containers” such as briefcases. Justice Cromwell also indicates that neither the type of device (whether a “smart” phone or not) nor its being or not protected by a password matters to determining the amount of constitutional protection it receives.

That said, Justice Cromwell asserts that “while cell phone searches … may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion.” [54] And any search incident to arrest

must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cell phone in an unfocussed way. [57]

He therefore rejects a rule that would categorically prohibit warrantless searches of cell phones incident to arrest, such as that which the U.S. Supreme Court set out in Riley v. California, 134 S.Ct. 2473 (2014). He also rejects the further alternatives of requiring the police to have “reasonable and probable grounds” before searching cell phone, or limiting the searches to “exigent circumstances” where they are necessary to prevent harm to persons or avoid the destruction of evidence. The ability to search phones is too important to police, and should not be taken away if it is possible to set out some safeguards that will limit the intrusions on the privacy of the suspects.

Justice Cromwell thinks that it is indeed possible to do so. First, “[b]oth the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence,” which usually will mean that “only recently sent or drafted emails, texts, photos and the call log may be examined,” though “these are not rules, and other searches may in some circumstances be justified.” [76] Furthermore, the investigation of some crimes, notably those involving “violence,” “readily disposable property,” and “drug trafficking” will more readily support searches of phones than that of “minor offences” [79] Second, cell phone searches incident to arrest are only permitted to find evidence absent the prompt discovery of which “the investigation will be stymied or significantly hampered” ― meaning

that the police will have to be prepared to explain why it was not practical … in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [80]

And third, police must take detailed notes when they search a cell phone.

These constraints were not respected during the search of Mr. Fearon’s phone, albeit for the excellent reason that the Supreme Court had not yet articulated them. Accordingly, Justice Cromwell finds that Mr. Fearon’s right not to be subject to an unreasonable search was infringed, but decides that the evidence could nonetheless be admitted under s. 24(2) of the Charter, as the infringement was not so serious as to “bring the administration of justice into disrepute.”

***

Justice Karaktsanis, for her part, argues that Justice Cromwell’s attempt to limit the intrusions on the suspects’ privacy caused by searching their cell phones will not work. Indeed, in her view, the safeguards proposed by Justice Cromwell will fail to protect privacy while still hampering the work of police and generating litigation.

She begins by observing that

[o]ur digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives. [101]

For this reason, the search of a cell phone is just as serious an “encroach[ment] on the arrested person’s most private spheres [as that] of a home, or the taking of bodily samples.” [104] For Justice Karakatsanis,

the cell phone is 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. … 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. [132]

She also points out that “[t]he threat of unreasonable intrusions on privacy (and not only the unreasonable intrusion itself) is enough to undermine the values served by privacy.” [117]

On the other side of the ledger, Justice Karakatsanis acknowledges that “searching a cell phone will often be very useful for law enforcement,” [137] but argues that absent exceptional circumstances, waiting for a warrant to do so will not be too much of a burden. While the wait might occasionally hamper an investigation, as with the prohibition on searching a home incident to arrest, this is the price to pay for protecting privacy.

The restrictions on searches proposed by Justice Cromwell, just like a rule allowing only “cursory” cell phone searches incident to arrest, are in Justice Karakatsanis’s view impracticable, uncertain, and bound to generate after-the-fact litigation. A search that is intended to be limited or cursory can still lead to highly private information. Even

a cursory inspection for recent communications will need to search a host of applications ― the privacy infringement may be far from minimal and the inspection far from quick. Similarly, a cursory inspection of photos may involve any number of private and personal photographs of the individual ― and of third parties. [164]

Letting the police carry out such inspections would be an invitation for suspects to subsequently litigate the admissibility of their fruits ― yet even if the evidence is then excluded, the harm to privacy will already have occurred.

***

It’s not clear just what the effects of the majority’s decision will be. In theory, it is even possible that police will take to heart Justice Cromwell’s warnings about the limited scope of permissible cell phone searches, though I wouldn’t count too much on that. More importantly, technology will help accomplish that which constitutional law will not. If a phone is protected by a password and locked at the time it is seized, the police will not be able to search it incident to arrest, and will need to obtain a warrant anyway. And with manufacturers deciding to relinquish their own ability to break the password protection of their phones, as Apple has already done, phones may become unsearchable, even with a warrant, in the future ― which is not necessarily a good thing.

Yet to the extent that the decision does matter, it is, I think, a regrettable one. Justice Cromwell dutifully recites the his own conclusions, for the Court, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 about the potentially far-reaching effects of searching computers, and acknowledges that cell phones are equivalent to computers from a privacy perspective. But when reading his assertion that “[l]ooking at a few recent text messages or a couple of recent pictures is hardly a massive invasion of privacy, let alone an affront to human dignity,” [61] one cannot help but wonder just how seriously he takes his own words. Justice Cromwell discusses the dignitarian problems inherent in strip searches, but would allow police to look at images just as if not more intimate. He is aware of the intrusiveness of a taking of bodily samples, but would let police read emails discussing a person’s health issues. Justice Karakatsanis, whose opinion reads like that of a very technologically savvy person, has a much better appreciation of what is at stake when phones are searched, and of the likely impossibility to the searches’ effects on privacy.

Indeed, the Justice Cromwell’s opinion is striking in the extent to which it seems to favour the interests of law enforcement. It seems much more concerned with the efficacy of police investigations than with the rights of the persons these investigations target. One wonders whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is “a crime that has become depressingly routine.” [5] We can only hope that this attitude will not affect other, perhaps more significant, cases in the future.

Its Own Place

“The mind is its own place,” says Milton’s Satan. And since computers have, for all practical purposes, replaced our brains, so are those, right? The Supreme Court of Canada, at any rate, agrees. In a case decided last week, R. v. Vu, 2013 SCC 60, it held that police cannot search a computer on the basis of a warrant to search the place in which the computer is found. The search of the computer requires a separate warrant.

As Justice Cromwell, writing for the unanimous court, explains,

The traditional legal framework holds that once police obtain a warrant to search a place for certain things, they can look for those things anywhere in the place where they might reasonably be; the police do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. The question before us is whether this framework is appropriate for computer searches; in short, should our law of search and seizure treat a computer as if it were a filing cabinet or a cupboard? (Par. 1)

The answer is that it should not, because “computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach” (par. 2).

The search warrant which the police had obtained authorized a search “documentation” that would prove the ownership and occupation of the appellant’s residence. The main question for the Court was whether this was enough to authorize the police to look for such documents on the computers (or cell phones) that they might find in the residence, in addition to looking for any physical copies.

Searching a computer says Justice Cromwell, is not the same thing as searching the physical space of a residence. The amount of data to be found on a computer is huge, and that data includes things “that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search” (par. 24). From the standpoint of the privacy interests they engage, computers are unprecedented technology, unlike anything the law has had to deal with in the past. The same thing goes for cell phones: “present day phones have capacities that are, for our purposes, equivalent to those of computers” (par. 38). Not only can computers hold information that would fill up whole libraries, but they record the websites they are used to visit, the terms they are used to research, and the history of the editing of the documents they are used to create. And theirs, rather like ours in fact, is a memory that does not really forget even told to do so: a computer does not actually delete a file, but merely makes the disk space it occupied available for reuse should the need arise. Finally, a computer ― unlike, say a filing cabinet ― gives one access to information that is not physically located on it, perhaps, “in the cloud,” on servers half a world away. In short, for the police to find something in a physical place, someone needs to have put it there, and no one must have thrown it out; neither of these conditions holds on a computer.

Because computers contain information that is thus so different from information that can be found by searching a physical place, a distinct judicial authorization is required to search a computer ― an authorization to search the place where the computer is found is not enough. Nor is after-the-fact review of the reasonableness of the search of a computer. Justice Cromwell concludes that “the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place” (par. 51).

The way it will work in practice, he explains, is that

[i]f police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant (par. 49).

Such warrant need not, however, set out a detailed protocol for the search, or exclude in advance some “areas” of the computer to be searched. Not only are such protocols likely to be difficult to draw up in advance, but after-the-fact review will also allow courts to develop better rules for governing future searches of computers. A warrant can, in appropriate cases, impose conditions on how a computer is to be searched, but it need not always do so.

Sounds right to me. And it is worth pointing out, I think, that this case illustrates the development of new privacy expectations that come with new technologies. As I suggested here, the influence of technology on privacy rights is unlikely to be a one-way ratchet leading to the eventual disintegration of the idea of privacy. Some ideas of what is and what is not private will disappear in the digital world. Others will not. And others still will appear which did not exist before. Although I have regularly expressed my skepticism about courts’ ability to deal with new technologies, this case provides grounds for at least some optimism.