Digital insurance cards come with risk - lawyers
Electronic "pink cards" could give police an opportunity to peruse people's phones, and experts say sticking to the paper copy is the best way to avoid such searches
When providing proof of insurance to police on their smartphones, as recently approved by the New Brunswick government, people runs the risk of snitching on themselves, say legal experts.
In a social-media campaign Monday, New Brunswick’s registrar of motor vehicles announced that as of last week, people can present an electronic version of their vehicle’s liability insurance card on their smartphone or other mobile device as proof of insurance when requested by a police officer or other peace officer.
An information sheet on the province’s website indicates the digital card can’t just be a photo of the insurance card, also known as a “pink card.”
“Consistent with the Electronic Transactions Act, the customer must consent to receive the electronic insurance card,” the document states, adding that it might not be available from all insurers.
“Offering electronic insurance cards is optional for insurers. Insurers are not required to make an electronic insurance card available to their customers.”
Government warned the public there can be issues with digital insurance cards. The motor-vehicle registrar notes access to a digital insurance card can be compromised if a motorist doesn’t have sufficient power to their device or if cell service isn’t readily available, and when handing over a smartphone to an officer, the motorist assumes any risk of loss or damage in the process.
Furthermore, the information sheet said, other jurisdictions in Canada or beyond might not accept digital cards as proof of insurance.
Searching through smartphones
But Fredericton criminal defence lawyer T.J. Burke said Monday it’s foreseeable that a police officer who’s handed a smartphone for the purpose of seeing proof of insurance could look for something more.
For example, he agreed one possible scenario might be if a police officer pulls over a known drug offender, asks for proof of insurance and then argues other evidence was in "plain sight" on the phone.
“If I were arguing the case for my client and the facts demonstrated the officer was perusing through their phone, I would argue that R v. Fearon applies,” he told the Fredericton Independent.
That’s a Supreme Court of Canada decision on the issue of cellphone searches incident to arrest in an Ontario case involving a robbery of a jewelry merchant.
While that search was ultimately upheld as legal in the case, the precedent notes conditions had to be fulfilled to ensure such smartphone examinations comply with the Charter right against unreasonable search and seizure.
“Ultimately, the purpose of the exercise is to strike a balance that gives due weight to the important law enforcement objectives served by searches incidental to arrest and to the very significant privacy interests at stake in cell phone searches,” the 2014 Supreme Court of Canada decision states.
Among the conditions to be met are that the arrest is lawful; that the search must be truly incidental to the arrest and must be to protect police and the public, or to preserve evidence; and that the search must be focused on a specific purpose, meaning it would apply only recently created or sent digital evidence on the device.
Burke said it was unlikely a judge would allow other evidence found on a smartphone when an officer views a digital insurance card.
“I also think a judge would need to really stretch the facts to allow an officer to say something was in ‘plain view’ when the accused’s intended purpose was only to show the officer his proof of insurance,” he said.
Despite his sense that a court wouldn’t accept the fruits of such a sketchy search, Burke said people are better off being careful about what they provide to police.
“I can say this: if you have something to hide, or simply don’t want some overzealous police officer searching through your phone, I’d keep a hard copy [of the insurance card] on you,” he said.
The Fredericton Independent asked officials at the Department of Justice and Public Safety, under which the registrar of motor vehicles falls, if any thought was given to police searches of smartphones displaying the electronic pink cards.
We were directed to the information sheet, which notes, “The technology produces a secure electronic version of the insurance card that cannot be altered or edited and must include delivery and access methods that minimize the potential for fraud and unauthorized access.”
However, it’s silent on the potential for law enforcement to peruse a mobile device once it’s handed over to an officer.
Warnings don’t go far enough
The registrar’s information sheet notes that insurers and agents providing such digital cards must follow federal and provincial privacy, anti-spam and e-transaction legislation, but it makes no reference to the privacy of people’s information when providing their mobile devices to peace officers.
Ottawa-based constitutional lawyer and legal researcher Lyle Skinner, in a Twitter thread Monday, pointed out the wording of the New Brunswick Motor Vehicle Act notes a motorist must physically deliver an insurance card - paper or electronic - to a police officer or other such law-enforcement figure.
He said the wording could mean that by law, the motorist would lose control over their phone.
The legal scholar applauded the provincial government for advising people about the risks they run when it comes to damage or loss of their phones, but he added the publicity campaign doesn’t go far enough.
“... The messaging really should also contain a warning about potential legal risks of handing your cellphone to a peace officer,” he wrote.
Skinner, who holds a doctorate law degree from the University of New Brunswick, said softening that language in the act might protect the public and peace officers.
“To avoid Charter issues and other situations of peace officers obtaining more information than necessary from a person's cellphone who use an electronic insurance card, the legislature may wish to make it optional to deliver an electronic card into a peace officer's hands,” he wrote.
The registrar’s information sheet advises a motorist can use a mobile device’s lock-screen function when presenting the digital card so as to avoid any further examination of the device.
“The registrar should consider changing ‘can’ be viewed using lock-screen capability to ‘must,’” Skinner wrote.
“I hope Public Safety has provided training to peace officers to reduce privacy impacts.”
Skinner told the Fredericton Independent that since the digital pink card is purely voluntary at this point, the safest option is for one to carry a physical card.
While digital insurance cards are now acceptable as of Feb. 1, the motor-vehicle registrar advises insurers who offer such digital cards must continue to provide customers with a hard copy for the next year, while government, the public and stakeholders assess the efficacy of the digital versions.
Ultimately, the province advised, it’s up to customers if they choose a paper insurance card, a digital one or both.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Good information. I will be printing my insurance card.
Excellent article