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Mann's Information & Technology Law Newsletter | Privacy Rights

The decision of the Supreme Court of Canada in R. v. Fearon balances privacy rights and the needs of law enforcement to provide limited guidance on the warrantless search of a mobile phone.



Mann’s Information & Technology Law Newsletter



By: Elisabeth Symons



II.1 — Arrests, Cell Phones and Privacy — R. v. Fearon

The Supreme Court of Canada’s decision in R. v. Fearon28 provides limited guidance on when and to what extent it is reasonable for a police officer to search the mobile phone of an individual who has been arrested without first obtaining a warrant to do so.

Background:

A jeweller was robbed at gun point by a small group of robbers who escaped by car. Shortly afterward, Kevin Fearon was arrested and charged with the armed robbery. In the course of the arrest, Fearon’s mobile phone was found on his person and seized by the police.

At the time of the arrest: (i) the gun used in the armed robbery had not been found; (ii) the stolen jewelry had not been recovered; and (iii) at least one armed robber remained at large (assuming that Fearon and the person with whom he was arrested were two of the armed robbers).

Moments after the arrest, Fearon’s mobile phone was searched. That search revealed: (i) a draft text message about a robbery; and (ii) a photo of a gun that matched the description of the gun used in the robbery. The officers did not thoroughly document the nature and the extent of that search and the draft text and the photo were viewed several times after that.

After the initial searches of Fearon’s phone and the passage of some time, the police obtained a warrant allowing them to search the phone, and a more thorough search of Fearon’s phone was conducted.

At trial and on subsequent appeals, Fearon argued that the search of his mobile phone violated his right not to be subject of an unreasonable search (i.e., section 8 of the Canadian Charter of Rights and Freedoms).29 The Crown argued that the search was not a violation of section 8 of the Charter and even if it was, the evidence should still be admitted in accordance with section 24(2) of the Charter (i.e., having regard to all of the circumstances, admitting it would not bring the administration of justice into disrepute).

Decision and Dissent on the Facts:

The decision of the S.C.C. was split: balancing privacy rights and law enforcement rights is difficult.

All of the justices concluded that the search of Fearon’s mobile phone was a breach of section 8 of the Charter, but they did so for different reasons.30 They split on whether or not section 24(2) of the Charter might nevertheless allow the evidence from the initial search to be admitted. The Justices in the majority favoured admission because the police officers were operating in a grey zone and in their actions there was “not a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to disassociate itself from that conduct”.31 The Justices in the minority favoured exclusion. The extent of the incursion into Fearon’s privacy was severe, and the case would not have been “gutted” by the exclusion of the draft text message and the photo.32

Decision and Dissent on the Broader Issue:

The Justices forming the minority concluded that search of an arrestee’s mobile without a warrant would be appropriate only in exigent circumstances33 because the search of a person’s mobile phone is a “very severe” incursion into their privacy.34 In doing so they considered and dismissed several alternative approaches including the balancing approach adopted by the majority. They dismissed the balancing approach because: (i) a police officer in the middle of an investigation might lack the circumspection necessary to balance privacy and law enforcement objectives and give undue weight to law enforcement objectives; and (ii) simply excluding the evidence found is not sufficient to make up for an unlawful search.35

The Justices forming the majority disagreed, finding that a warrantless search of an arrestee’s cell phone at the time of arrest could be lawful if some limits were prescribed in addition to the limits already in effect for searches incident to arrest. As with any other search incident to arrest, the search must: (i) serve one or more lawful objectives;36 and (ii) be truly incidental to the arrest.37 Further, the search of an arrestee’s mobile phone incidental to that arrest should be tailored to the purpose(s) for which the search is being conducted — its scope should be focused on only what is necessary for the purpose(s).38 The Justices noted that a warrantless search of recent logs and recent items on an arrestee’s mobile phone would be easier to justify than a more extensive search (especially ones primarily intended to uncover evidence).39 In taking this approach, the Justices forming the majority put the onus on the police to demonstrate reasonableness in relation to any warrantless search of an arrestee’s mobile phone, and directed the police to be meticulous and detailed when documenting the purpose(s) and scope of any such search.40

Conclusion:

With a balancing approach, error on the side of caution when deciding the extent to search an arrestee’s mobile phone and: (i) the investigation may be slowed or stopped; and (ii) harms (such as loss of evidence) that might have been avoided may occur. Overstep and: (i) the search violates section 8 of the Charter; and (ii) the information found may not be available as evidence at the arrestee’s trial. Searching cell phones without a warrant is still a grey area. Still, the Court’s direction to law enforcement officers to take detailed and meticulous notes when conducting any warrantless search should encourage circumspection.

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