Fearon, Marakah, Spencer and Bykovets: Your Phone and Your Privacy

Searching a phone on arrest (Fearon)

1. The arrest must be lawful.
2. The search must be truly incidental to the arrest, for a valid purpose such as protecting the public or preserving or discovering evidence where the investigation would otherwise be stymied.
3. The search must be tailored: usually only recent texts, emails, photos and the call log.
4. Police must take detailed notes of what they searched and why.

Texts on someone else's phone (Marakah)

Police found Mr. Marakah's text messages on an accomplice's phone. The Supreme Court held that he could still challenge the search, because a sender can reasonably expect that their text conversation will remain private. The evidence was excluded and he was acquitted.

Online anonymity (Spencer and Bykovets)

In Spencer, police asked an internet provider for the subscriber information linked to an IP address, without a warrant. The Court held that this was a search, because internet users can have a privacy interest in their anonymity. In Bykovets, the Court went further and held that police need judicial authorization to obtain an IP address itself from a private company.

What it means for you

• You don't have to unlock your phone for police or give your passcode, though you shouldn't obstruct or lie.
• If police searched your phone, ask in disclosure for their notes and any warrant.
• Evidence from an unlawful search may still be admitted under the Grant test, so the details matter.

Photos from Pexels: A screen showing digital security · A laptop showing a cybersecurity message.

This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.