Leaving Dumb Phones Behind: A Commentary on the Warrantless Searches of Smartphone Data Granted in R. v. Fearon

Given the incredible rate of smartphone technological evolution, is it about time the Supreme Court of Canada devised a special test to give law enforcement agents significantly more power to search through phone data without a warrant upon arrest of a suspect? In R. v. Fearon, the majority did just that. But this article argues the opposite is true: the increasing potential for immense privacy infringements when police search powerful and constantly evolving technological devices demands a greater limitation to police powers. In recent cases, the Supreme Court has agreed with the position that limitations are needed concerning computers. Additionally, the weaknesses in law enforcement procedure described by the majority are already served sufficiently by existing principles which do not infringe Canadians’ Charter rights. Future cases should distinguish the majority decision for these reasons and recognize the thoughtful and practical dissent. Otherwise, there is a danger that this unreasonable expansion of police power to search citizens, combined with anticipated technological evolution in both smartphones and government surveillance initiatives, will have a corrosive effect on the freedom guaranteed to Canadians by section 8 of the Charter