Anyone who takes pictures, writes emails, keeps notes or does Internet searches on a cellphone should pay attention to the recent decision of the Supreme Court of Canada in the case of Her Majesty the Queen v. Fearon.
The judges ruled 4-3 that the contents of a cellphone can be searched incident to an arrest if (1) the arrest is lawful, (2) the search is actually incidental to the arrest and not for some other hidden purpose, (3) the nature and extent of the search are particular to the purpose of the arrest, and (4) the police take careful notes so that the search can be reviewed by a judge at trial.
The extent of the police search was of particular concern to the dissenting justices who recognized the unique nature of cellphones and the information they carry. However, the majority were content to
set the law broadly and trust the police to exercise self-restraint. It remains to be seen how many clicks on the photo icon or the Safari search history menu is too many.