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Digest of the Week — R. v. Fearon


R. v. Fearon |
2014 CarswellOnt 17202 |
Supreme Court of Canada

Criminal law | Pre-trial procedure | Search without warrant | Incidental to arrest

Police arrested accused for robbery with firearm and seized his cell phone during search incidental to arrest — Police opened cell phone, which was not password protected, and found photographs of gun and cash as well as incriminating text message — Accused brought application to exclude evidence obtained from search of cell phone, alleging breaches of s. 8 of Canadian Charter of Rights and Freedoms — Judge found that search of cell phone incident to arrest was not in breach of accused's s. 8 rights — Accused was convicted — Accused appealed — Appeal was dismissed — Police were within limits of leading case to examine contents of cell phone in cursory fashion to ascertain if it contained evidence relevant to alleged crime — If cursory examination did not reveal such evidence, then at that point search incident to arrest should have ceased — Accused appealed — Appeal dismissed — Cell phone searches have potential to be more significant invasions of privacy so common law test needs to be changed so that police power to search incident to arrest is defined and applied in way that gives effect to right to be free from unreasonable searches and seizures — Searches of cell phones or similar devices incidental to arrest will be justified where arrest was lawful; search is truly incidental to arrest and there is objectively reasonable purpose to conducting search as well as police take detailed notes of what they have examined on device and how it was searched.

Criminal law | Charter of Rights and Freedoms | Unreasonable search and seizure [s. 8] | Authorized by law

Police arrested accused for robbery with firearm and seized his cell phone during search incidental to arrest — Police opened cell phone, which was not password protected, and found photographs of gun and cash as well as incriminating text message — Accused brought application to exclude evidence obtained from search of cell phone, alleging breaches of s. 8 of Canadian Charter of Rights and Freedoms — Trial judge found that search of cell phone incident to arrest was not in breach of accused's s. 8 rights — Accused was convicted — Accused appealed — Appeal was dismissed — Police were within limits of leading case to examine contents of cell phone in cursory fashion to ascertain if it contained evidence relevant to alleged crime — If cursory examination did not reveal such evidence, then at that point search incident to arrest should have ceased — Accused appealed — Appeal dismissed — Cell phone searches have potential to be more significant invasions of privacy so common law test needs to be changed so that police power to search incident to arrest is defined and applied in way that gives effect to right to be free from unreasonable searches and seizures — Searches of cell phones or similar devices incidental to arrest will be justified where arrest was lawful; search is truly incidental to arrest and there is objectively reasonable purpose to conducting search as well as police take detailed notes of what they have examined on device and how it was searched — Accused's rights under s. 8 were violated by search as officers could not give sufficient details as to what and how they searched device — Evidence was admissible under s. 24(2).

Criminal law | Charter of Rights and Freedoms | Charter remedies [s. 24] | Exclusion of evidence

Police arrested accused for robbery with firearm and seized his cell phone during search incidental to arrest — Police opened cell phone, which was not password protected, and found photographs of gun and cash as well as incriminating text message — Accused brought application to exclude evidence alleging breaches of s. 8 of Canadian Charter of Rights and Freedoms — Judge found that search of cell phone incident to arrest was not in breach of accused's s. 8 rights — Accused was convicted — Accused appealed — Appeal was dismissed — Police were within limits of leading case to examine contents of cell phone in cursory fashion to ascertain if it contained evidence relevant to alleged crime — If cursory examination did not reveal such evidence, then at that point search incident to arrest should have ceased — Accused appealed — Appeal dismissed — Cell phone searches have potential to be more significant invasions of privacy so common law test needs to be changed so that police power to search incident to arrest is defined and applied in way that gives effect to right to be free from unreasonable searches and seizures — Searches of cell phones or similar devices incidental to arrest will be justified where arrest was lawful; search is truly incidental to arrest and there is objectively reasonable purpose to conducting search as well as police take detailed notes of what they have examined on device and how it was searched — Accused's rights under s. 8 were violated by search as officers could not give sufficient details as to what and how they searched device — Evidence was admissible under s. 24(2) — Charter-infringing state conduct was not serious as police acted in good faith and believed they were acting within scope of their authority which favoured admission — Impact of breach on accused's Charter-protected interests was not great as warrant was later obtained and cell phone was again searched, which weakly favoured exclusion — Society's interest in adjudication of case on its merits favoured admission as evidence was cogent and reliable and its exclusion would undermine truth-seeking function of justice system.

The police arrested the accused for robbery with a firearm and seized his cell phone during a search incidental to his arrest. When the officers opened the cellphone, which was not password protected, they found photographs of a gun and cash as well as an incriminating text message. After being left alone in an interview room for five hours the accused gave a full confession. The accused brought an application to exclude the evidence obtained from the search of the cell phone, alleging breaches of ss. 10(b) and 8 of the Canadian Charter of Rights and Freedoms. The trial judge found that denial of accused's s. 10(b) rights was unintentional, and concluded that the admission of the evidence would not bring the administration of justice into disrepute under a s. 24(2) Charter analysis. The trial judge found that the search of the cell phone incident to arrest was not in breach of the accused's s. 8 rights. The accused was convicted. The accused appealed and the appeal was dismissed. The Court of Appeal found that in deciding to admit the evidence in spite of the s. 10(b) breach, the trial judge undertook appropriate s. 24(2) analysis and concluded that evidence would not bring administration of justice into disrepute. The Court also ruled that if the cell phone had been password protected or otherwise "locked" to users other than the accused, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant. The police were within the limits of the leading case to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal such evidence, then at that point search incident to arrest should have ceased. The accused appealed.

Held: The appeal was dismissed.

Per Cromwell J. (McLachlin C.J.C., Moldaver and Wagner JJ. concurring): The appeal is dismissed. Cell phone searches may constitute very significant intrusions of privacy but not every search is inevitably a significant intrusion such as a bodily search is. People who have been lawfully arrested have lower reasonable expectations of privacy. Some limits are imposed by the common law requirement that the search be truly incidental to a lawful arrest including the requirement the search must be linked to a valid law enforcement objective related to the offence for which the accused has been arrested. Cell phone searches do have the potential to be more significant invasions of privacy and that requires new safeguards. So the common law test needs to be changed so that the power to search incident to arrest is defined and applied in a way that gives effect to the right to be free from unreasonable searches and seizures. A balance has to be found between the demands of effective law enforcement and everyone's right to be free of unreasonable searches and seizures. That balance can be achieved through a new approach. Searches of cell phones or similar devices incidental to arrest will be justified where the arrest was lawful; the search is truly incidental to the arrest and there is a reason, with an objectively reasonable purpose to conduct the search, including the protection of the police, the accused or public, preserving evidence or discovering evidence; the nature and the extent of the search are tailored to the purpose of the search; and the police take detailed notes of what they have examined on the device and how it was searched.

The prior common law requirements for searches incident to arrest were satisfied by the circumstances of the accused's arrest. The accused was lawfully arrested for robbery, the search was incidental to arrest and was conducted reasonably. The search was directed at public safety as it was focused on locating the hand gun, avoiding the loss of evidence in relation to locating the stolen jewelry, and obtaining evidence of the crime including information linking the accused to the robbery and locating potential accomplices. The trial judge was not in error in her rulings which were amply supported by the evidence.

But the search was not reasonable under the new rule, and it breached the accused's s. 8 rights under the Canadian Charter of Rights and Freedoms. The officers' evidence about the extent of the cell phone search was not satisfactory and the Crown failed to prove that the search was lawful in the absence of detailed evidence as to what was searched, how and why. However, the evidence should not be excluded under s. 24(2). The Charter-infringing state conduct was not serious as the police acted in good faith and believed they were acting within the scope of their authority which favoured admission. The impact of the breach on the Charter-protected interests of the accused was not great as a warrant was later obtained and the cell phone was again searched which weakly favoured exclusion. Society's interest in the adjudication of the case on its merits favoured admission as the evidence was cogent and reliable and its exclusion would undermine the truth-seeking function of the justice system.

Per Karakatsanis J. (dissenting) (LeBel and Abella JJ. concurring): The appeal should be allowed and the evidence should be excluded. Private digital devices used for modern purposes contain an enormous amount of data about our lives including not just our core biographical information but also our conversations, photos, browsing interests, purchase records, and leisure pursuits as well as movements and locations and this data allows for reconstruction of the events in our lives as well as thoughts, opinions and ideas. Digital devices are windows to a person's inner private life. An individual's right to a private sphere is a hallmark of our free and democratic society. Privacy is essential to human dignity, to democracy, and to self-determination. Section 8 of the Canadian Charter of Rights and Freedoms protects the right to be free from unreasonable search and seizure. The search of a cell phone without a warrant cannot be justified under the common law power of search incident to arrest. Our changing technology requires the law to change in order to protect privacy rights. The heightened privacy interests in digital devices are too great to be protected by existing limitations of search incidental to arrest given the differences in the device compared to other tangible items. The majority's approach puts the balancing in the hands of the police who are not in the best position to make the decision whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a personal cell phone or computer. This method raises issues of impracticality, police uncertainty, and increased after-the-fact litigation.

In the accused's situation 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. The search was unreasonable and unconstitutional. The police were required to obtain a warrant before searching the phone and their failure to do so meant the evidence should be excluded. The searches of the accused's phone were not justified and unreasonably infringed his privacy, in violation of s. 8 of the Charter. The evidence should be excluded. While the seriousness of the Charter-infringing state conduct was not extreme and the trial judge was correct in finding that the officers acted in good faith, the impact on the Charter-protected interests of the accused was severe. The accused had an extremely high expectation of privacy in his cell phone given how much personal and private information it contains. A warrant was required to search it and was not obtained. This factor favoured exclusion. The Crown had other evidence so its case would not have been destroyed by exclusion of the evidence from the phone so this factor was of limited assistance in determining admissibility. The balance was tipped in favour of exclusion by the extremely high privacy interest an accused had in his cell phone particularly in light of the ubiquity of digital devices in modern life. The admission of the evidence would bring the administration of justice into disrepute.
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