Experts Say SCC Ruling on Cellphones Searching to Prompt Challenges

This article was last updated on April 16, 2022

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Constitutional law expert and a practicing lawyer, Nader Hasan, has suspected that Supreme Court’s recent ruling allowing police to conduct a limited search of a suspect’s cellphone will lead to further court challenges about officer’s discretion. According to the Supreme Court 4-3 ruling issued on Thursday, the police is allowed to search a suspect’s cellphone as far as it is directly related to the circumstances of the arrest.

However, Toronto firm Ruby Shiller Chan Hasan’s lawyer, Hasan, spoke on behalf of the B.C. Civil Liberties Association and said he was “surprised” by the ruling. Hasan alleged that the court should have ruled that police should require a warrant to search a suspect’s phone because of the “immense privacy protections” or that police can search a cellphone without a warrant as part of their lawful power of arrest. However, he said that the court’s less-clear ruling has left the door open for court challenges of police behaviour.

In his remarks, Hasan alleged that “I’m a constitutional lawyer, I’m supposed to understand this stuff,” adding that ” if I were a police officer trying to implement today’s ruling, I would have a lot of trouble understanding what the Supreme Court meant for cops to do on the ground.” Hasan complained that the Supreme Court’s ruling has essentially left the decision to search a suspect’s cellphone to the discretion of the officer “and then that discretion is no doubt going to be challenged.” Hasan concluded “so we’re likely to see other challenges to searches incident to arrest without a warrant of people’s cellphones.”