For 30 years the Canadian constitutional right to privacy was based on the assumption the state can’t restrain itself when it comes to protecting privacy. Judges interposed themselves to protect Canadians, demanding search warrants before searches. Yesterday, four Supreme Court of Canada judges erased that protection. In R. v. Fearon the Court put the privacy expectations of mobile-carrying Canadians in the hands of police officers.
The Court’s primary job is protecting constitutional rights not helping the police. The three judges who dissented get it. Academics get it. The public gets it. Heck, even the perennially disappointing U.S. Supreme Court gets it. The Fearon rule for cell phone searches shows the court losing its gumption to say no to the state. Chasing crime is a competitive business. It’s natural for law enforcement agents to want the widest possible powers to do their work. As protector of Canadians’ civil liberties the Court’s job is to manage those expectations.
Not only does Fearon undercut privacy rights, it also creates confusion. The Supreme Court previously said computers and smartphones have such intensely private information that a separate warrant is required to search them even when police have a warrant to search the home where they are found. Fearon says that police can rummage through your phone without a warrant just because they arrested you. There are now six different search powers with different rules for the police after an arrest: one for vehicles, one for people fleeing into homes, one for bodily samples, one for strip searches, one for mobile devices, and one for inventories of the arrestee’s possessions.
More complicated, less privacy.