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Toronto criminal lawyer Sam Goldstein tells Law Times that the Ontario Court of Appeal will have to decide where to draw the line between individual privacy and the police’s right to solve a crime when it considers the R. v. Fearon case.
In this case, the Court of Appeal will have to decide whether police can conduct a cursory inspection without a warrant, says Goldstein.
“The officers involved started rifling through my client’s phone when they had no reason to believe there would be any evidence connecting him to the crime,” Goldstein, who represented Kevin Fearon in R. v. Fearon, tells Law Times.
“Part of the issue is that courts have always said searches without a warrant are unlawful. You must have judicial authorization, not police authorization. So the court will have to figure out where the line is between individual privacy and the police’s right to solve a crime,” he adds.
The case could delve further into the idea that cellphones aren’t akin to briefcases, Goldstein tells Law Times. “Traditionally, courts have had this paradigm of viewing cellphones as briefcases when really they are more like digital portals,” he says.
“They function like time machines and could potentially allow a police officer to go back in time or into the future to retrieve personal information. Because of this, there is an expectation that personal privacy should be higher. But you can’t leave it up to the police officers to determine how deep, far back or into the future they should be allowed to go,” he adds.
Goldstein also notes that a Supreme Court of Canada action may be necessary to bring more clarity to the issue.