In a 4:3 split decision, the majority of the Supreme Court of Canada in R v Fearon, 2014 SCC 77, upheld the police power to search a cell phone incidental to arrest [see prior post by Brian Holowka on ONCA ruling].

Justice Cromwell, writing for the majority, summarized the new rule as follows:

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched. [@ para 83]

Justice Cromwell noted that cell phones attract a high privacy interest. He referred back to the three features identified in R. v. Vu, 2013 SCC 60 (CanLII), that make a computer different from other “places”—immense storage capacity; the ability to generate and store information about the intimate details of the user’s interests, habits, and identity without the user’s knowledge; and the ability to provide access to information in different locations—and found that these features apply to cell phones. [@ para 51]

The new rule dealing with search of a cell phone incidental to arrest applies to all cell phones, whether or not the phone is password protected, and whether the phone is “relatively unsophisticated” or a “smart phone.” [@ paras 52-53]

Justice Cromwell elaborated on the circumstances in which a cell phone search will be found to be incidental to arrest and therefore lawful. He noted:

Generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. [@ para 76]
Search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest. [@ para 78]
Not all crimes justify the search of a cell phone incidental to arrest. The law enforcement objectives of the search will be most compelling in cases of 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. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences. [@ para 79]
When the purpose of the search is discovery of evidence, this will only be justified when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. For example, where there is reason to believe 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. On the other hand, where all suspects are in custody and any firearms or 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. [@ para 80]
Put another way, the police must be able to explain why it was not practical (which, Justice Cromwell emphasized, does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [@ para 80]
The police are required to take detailed notes of the applications searched, the extent of the search, the time of the search, its purpose and its duration. [@ para 82]

Applying the new rule to the case at bar, Justice Cromwell found that the police officers gave unsatisfactory evidence about the extent of the cell phone searches. One officer testified that he “had a look through the cell phone” but could not recall specifics. Another officer testified that he did “some quick checks” for about two minutes, but his evidence also lacked specifics. The burden is on the Crown to establish that a search incidental to arrest was lawful, and this burden cannot be met absent detailed evidence about precisely what was searched, how, and why. [@ para 86]

Consequently, Justice Cromwell held that the search of Mr. Fearon’s cell phone was not reasonable and it therefore breached his s. 8 Charter rights.

Finally, Justice Cromwell considered whether the evidence obtained from Mr. Fearon’s cell phone should be admitted or excluded under s. 24(2) of the Charter. In apply the three factors set out in R v Grant, 2009 SCC 32 (CanLII), Justice Cromwell noted:

The first factor favours admission of the evidence. The police had good reason to believe, as they did, that what they were doing was perfectly legal. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence. [@ paras 94-95]
The second factor favours exclusion, but weakly. The invasion of privacy was not particularly grave. In particular, it was important that Mr. Fearon did not challenge the subsequent search of his phone pursuant to a search warrant. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. In other words, the evidence was discoverable because the it could have been discovered legally pursuant to a search warrant.[@ para 96]
The third factor favours admission of the evidence because it was cogent and reliable, and exclusion would undermine the truth seeking function of the justice system. [@ para 97]
In the result, Justice Cromwell held that the cell phone evidence was admissible and dismissed Mr. Fearon’s appeal.

MGM