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Hanging Up on Fearon: Cellphone Privacy and the Supreme Court

Joanne Prince, PhD candidate, Faculty of Law, Osgoode Hall Law School

Published April 22, 2018 by Technologies of Justice.

On January 26, 2018, at the Technologies of Justice Conference session on surveillance, privacy and security in the digital era, Joanne Prince spoke on cellphone privacy and the Supreme Court. The conference took place at the University of Ontario Institute of Technology.



Prince explained the characterization of privacy in the Supreme Court, starting with the Fearon Case. She posed the question: "Should the Supreme Court recognize the technological implications of, or the information contained in the cellphone?"
She spoke on the way technology has started playing a larger role in our day-to-day lives, and how the lack of updated law and creation of new protocol on new digital hardware and software can cause confusion and sometimes misplaced justice in modern court cases. She highlighted the different standard between computers and cellphones in legal cases, how cellphone and computer privacy can be seen as different, and how there are different expectations of privacy depending on the device.
She provided an overview of the Fearon case, in which exclusion of evidence was requested in a cellphone search, and how this became a keystone case in cellphone search law. Questions asked as part of the Fearon case included:

  • “Is phone search territorial/trespassing, informational, biographical, biological...what is the personal interest of the privacy?”
  • “Does the claimant have a reasonable expectation of privacy, dignity and integrity?”
  • “Even if a cellphone may be biographical evidence, do we think a search warrant needed?”

Prince dug deeper into cellphone technology, emphasizing the changing nature of types of data stored on a cellphone, and the personal content, which is becoming more and more common on phones and smarter devices. She asked, "Should the police be able to search a phone without a warrant even in a search incident to arrest?" She explaining how conducting what could be called a 'cursory' search can mean anything from a quick scan-over of messages and pictures, to a full data dump of a device. She spoke about the importance of defining this in terms of personal technology and future technology, because of the lack of guidelines and protocols, as the system currently works on a case-to-case basis in Canada.