The short answer: it depends. Police may sometimes wish to locate a person in a criminal investigation by tracking or “pinging” their cell phone. The police typically require a warrant to do this. The grounds upon which the police may obtain a warrant to track a cell phone are found in section 492.1(2) of the Criminal Code of Canada. This section states:

“A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.”

Therefore, if a justice or judge is satisfied there are reasonable grounds to believe a person has committed an offence or will commit an offence, the justice or judge may issue a warrant to track the person using their cellphone. In some cases, tracking your cell phone without a warrant could constitute a violation of your right to be secure against unreasonable search or seizure as guaranteed by Section 8 of the Canadian Charter of Rights and Freedoms.

However, a recent Ontario Court of Appeal decision confirmed that the police may be able to track your cell phone without a warrant where exigent circumstances exist. In R v Bakal, 2021 ONCA 584, the accused had allegedly assaulted his domestic partner in circumstances where a firearm was present. The accused then left the apartment with the firearm in the waistband of his pants. The police were attempting to locate him so they “pinged” his cellphone in an effort to track him. The trial judge concluded that exigent circumstances existed due to “a strong inference that the appellant was prepared to use the firearm on short notice” and that these exigent circumstances justified the warrantless tracking of his phone. The Court of Appeal upheld this decision. Exigent circumstances are defined as circumstances in which there is an imminent threat to police safety or public safety or in circumstances where there exists a risk of imminent loss or destruction of evidence (R v Paterson, 2017 SCC 15).

Have you been charged with a criminal offence in circumstances where your cell phone was tracked? Call DeMelo Law to explore your options.