A controversial December 2014 Supreme Court of Canada ruling allows police to search some information on your cellphone without a warrant when making an arrest.
Basically, there are only certain circumstances where police are authorized to conduct a cellphone search without a warrant, such as during an arrest. This is so that police can ensure public safety and collect evidence related to the arrest.
However, there are limitations on warrantless searches of cellphone data:
- The police must have a legal reason for your arrest. This means you have committed a criminal act or the police reasonably believe that you committed a criminal act.
- The search must happen promptly at your arrest, and the police must have a “reasonable basis” for searching your phone relevant to your arrest. This is to help them locate additional suspects, or search for information that the police need to conduct their investigation at the time of your arrest.
- The police can only search your phone for information they are looking for.
- The police must take detailed notes of what they searched and what they found.
- What the police cannot do is routinely browse your phone. Also, if you are not under arrest and a police officer does not have a warrant, they do not have the right to search or see information on your phone. In this circumstance, you have the right to say no to any search.
Can the Police Access All of My Phone’s Data?
Police do not have the right to search your phone without limits. They may, for instance, want to look at communications that took place in a reasonable time frame related to the offense you are being arrested for. They do not have the right to access all of your phone’s history. That said, given how cell phones work and provide information to the end user, it is entirely possible that the police could accidentally access unrelated content when conducting a lawful search.
Do I Have to Give Police My Phone Password?
If your phone is password-protected, you do not have to give police that password due to your right to remain silent during your arrest. However, police have other means to unlock your phone, such as doing a forensic search or trying various passwords. It is unclear from the Supreme Court ruling if police have the right to seize your phone to conduct a thorough search. For that, police may have to obtain a warrant.
Can Police Delete Any Photos or Recordings On My Phone?
No. Given your rights, police cannot remove any information from your device.
If Police Want to Search My Home or Car, Can They Search My Phone, Too?
It depends. If you allow police to search your car or home, you may be giving them permission to search your phone, too. If you’re not under arrest, be clear to the police that the ability to search your home or car (or bag) does not give them the broader ability to search your phone.
Can My Cell Phone Provider Give Information to the Police?
According to a 2016 Ontario Superior Court ruling, telecom companies have the obligation to protect the privacy of their subscriber’s personal information, and police must make sure that requests for this information are minimally intrusive. The decision found that overly broad production orders for cell phone subscriber information were unconstitutional under the Canadian Charter of Rights and Freedoms.
If you would like more information about what the police can search on your phone during an arrest, Armoured Suits offers a complimentary 30-minute private phone consultation. Contact us by phone at 613-233-0008 or e-mail at [email protected] to book your meeting