R. v. Fearon 2014 SCC 77 – in a 4-3 decision, the Supreme Court of Canada has held that the common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, although some modification of the existing common law framework is necessary because the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest.
A female merchant was operating a jewellery stall at a flea market in the Downsview area of Toronto. At the end of the day (about 6:15 p.m.) as she was packing her merchandise into her car, she was robbed by two men (Kevin Fearon and Junior Chapman). One of the men pointed a handgun at her and ordered her to open the trunk of her car. The other man stood by. The two men then grabbed the jewellery and other objects and fled to a waiting car. The estimated value of the stolen jewellery was between $10,000 and $40,000. The merchant described the gun as an inch and a half in diameter, mostly silver, but dark grey toward the handle. She said that the two men drove off in a black two-door automobile, which was located within 25 minutes of the robbery by virtue of a licence plate number given to the police by an eyewitness. The car was left less than a kilometre from the flea market. The car was registered to the co-accused, Chapman. Eyewitnesses at the scene gave descriptions of the robbers, which included that the robber with the gun was wearing an oversized red “hoodie”. When the car was located, the police observed a red sweater on the front passenger seat. The car was sealed in anticipation of obtaining a search warrant. Based on the description provided by the merchant to police, an officer suspected that Fearon, who lived in the area, may have been involved in the robbery. The officer was also advised that the owner of the getaway car had previously been arrested with Fearon.
The officer drove to the apartment building where Fearon lived. When he entered the lobby of the building, he saw Fearon and Chapman leave; the officer then detained Fearon and Chapman. Fearon initially lied about his identity. He was arrested for obstructing justice. When two officers from the holdup squad arrived, both men were arrested for robbery with a firearm, cautioned and advised of their rights to counsel. A pat down search of Fearon followed. This resulted in the discovery of the cell phone containing the photographs of a gun and cash as well as the incriminating text message. The text message read: “We did it were the jewlery at nigga burrrrrrrrr”.
In order to access the photographs and the text message in the cell phone, an officer had to operate the keyboard on the phone. The cell phone was turned “on” and there is no evidence that it was password protected or otherwise “locked” to users other than Fearon. The photographs and the text message were not in plain view and it was necessary to manipulate the key pad in order to move the phone into its different modes. When an officer returned to the police station, he gave the phone to another officer who attempted to determine whether the incriminating text message had been sent to anyone. The officer determined that the message was a draft and therefore had not yet been sent to anyone. He hit the “save” button in order not to lose the text message. After about two minutes, the phone was returned to the original officer who was told to look through it for recent calls or contacts. In the course of the night and next morning, as the investigation progressed, officers made additional checks of the phone. At trial, however, the only data from the phone relied upon by the Crown were the photos and the text message. A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo. Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.
On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8 of the Charter. She admitted the photos and text message and convicted Fearon of robbery with a firearm and related offences. The Ontario Court of Appeal unanimously dismissed Fearon’s appeal. The court affirmed the trial judge’s conclusion that the search incident to arrest had not violated Fearon’s s. 8 Charter rights. The appeal to the SCC raised two main questions: was the search incident to arrest unreasonable and therefore contrary to s. 8 of the Charter, and if so, should the evidence be excluded under s. 24(2) of the Charter?
The analytical framework cited by the SCC included the familiar cases of R. v. Collins,  1 S.C.R. 265, R. v. Caslake,  1 S.C.R. 51, Cloutier v. Langlois,  1 S.C.R. 158, R. v. Debot,  2 S.C.R. 1140, R. v. Golden, 2001 SCC 83,  3 S.C.R. 679, R. v. Beare,  2 S.C.R. 387, R. v. Dyment,  2 S.C.R. 417, R. v. Pohorestsky,  1 S.C.R. 945, R. v. Nolet, 2010 SCC 24,  1 S.C.R. 851, R. v. Morelli,  1 S.C.R. 253, R. v. Cole, 2012 SCC 53,  3 S.C.R. 34, R. v. Vu, 2013 SCC 60,  3 S.C.R. 657, and a couple of others that every officer in the field should be familiar with by now (if not, I suggest that you do so).
Justice Cromwell, speaking for the majority at para 58, said:
…the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted. The case law suggests that there are three main approaches to making this sort of modification: a categorical prohibition, the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances…
Consequently, Justice Cromwell said four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8 of the Charter:
- First, the arrest must be lawful;
- Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence (to paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why);
- Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified;
- Finally, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.
Justice Cromwell, at para 84, said:
In setting out these requirements for the common law police power, I do not suggest that these measures represent the only way to make searches of cell phones incident to arrest constitutionally compliant. This may be an area, as the Court concluded was the case in Golden, in which legislation may well be desirable. The law enforcement and privacy concerns may be balanced in many ways and my reasons are not intended to restrict the acceptable options.
With regards to the password-protection issue, at para 53 Justice Cromwell said:
I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected…I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to passwordprotect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone…Cell phones — locked or unlocked — engage significant privacy interests. But we must also keep this point in perspective.
Applying all these factors to the case at hand, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, was found to breach Fearon’s s. 8 Charter rights. Although they were truly incidental to Fearon’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which Fearon had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking (the 4th condition that now has to be met, moving forward). Despite that breach, the majority ruled the evidence should not be excluded.
The minority, dissenting reasons given by Justice Karakatsanis (concurred in by LeBel and Abella JJ.), at paras 105-106 said:
The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances ― when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.
In this case, the appellant was arrested in connection with an armed robbery. Upon arrest, the police searched his cell phone and discovered incriminating evidence. The police had no grounds to suspect there was an imminent threat to safety and no grounds to believe there was an imminent risk of the destruction of evidence. Consequently, I conclude that the search was unreasonable and unconstitutional. The police were required to obtain a warrant before searching the phone, although they were entitled to seize the phone pending an application for a warrant. I would exclude the evidence so obtained.
Luckily for us as police, the majority ruled in such a way to give us clearer guidelines to apply SITA in a time of profound technological change and innovation so as to comply with the requirements of s. 8 of the Charter in these matters.
A couple of final points to be taken from this case: at para 79, Justice Cromwell said:
The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.
And at para 80:
The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. For example, if, as in this case, there is reason to think that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to the arrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on the other hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose. This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant.