Ontario Court of Appeal Permits Warrantless Search of Cellphone Without Password Protection

Friday February 22, 2013
In a surprising and troubling decision, the Ontario Court of Appeal has permitted a police search of a cellphone that was not password protected or locked during the course of an arrest.  The court found that the police had a reasonable belief that the phone might contain relevant evidence and it was acceptable to undertake a "cursory" examination of the contents of the phone. The court noted that "if the cell phone had been password protected or otherwise 'locked' to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant." 

The decision raises serious concerns given the increasingly blurry line between smartphones and personal computers (the court found that this particular phone was not a "mini-computer") and the suggestion that the contents on a phone without password protection is "readily available to others." Canadians are surely entitled to expect that the contents on a private cellphone - whether locked or unlocked - are private and that police access to the content should require a warrant.