Imagine you were in the business of selling jewellery. One night you decide to move some of your inventory. As you are bringing it to your car you are accosted by two men, one of which is wielding a handgun. They rob you of some of your jewellery and flee in a vehicle. You immediately inform the police and give a description of those who just robbed you at gunpoint. The police investigate and later that night they detain two suspects they believe might be the individuals who robbed you. After arresting the two suspects, the police conduct a routine pat down search and discover a cell phone.
Do you think the police should be able to search the cell phone shortly after arresting the individuals without a search warrant? This could lead the police to find messages between co-accused which may help to locate the handgun or your jewellery.
Or do you believe that individuals, even those who may have just robbed you, should not be subjected to that kind of search and should be protected under our Charter of Rights and Freedoms (namely section 8 which states that “Everyone has the right to be secure against unreasonable search or seizure.”)? This would protect an individual’s privacy and would not allow the police to peruse the contents of a cell phone, most or all of which may be unrelated to the alleged crime, without a search warrant.
These questions and facts were front and center in the case of R v Fearon which was recently decided by the Supreme Court of Canada.
In Mr. Fearon’s case, the police searched his phone shortly after arresting him and found a picture of a handgun which was later found in the car that the police had secured as a result of the robbery. Also on the phone was an unsent text message which started off with the words, “We did it” and made reference to jewellery.
The main issue that the SCC addressed was if the search, incidental to the arrest of Mr. Fearon, was unreasonable and therefore contrary to section 8 of the Charter.
The majority of the Supreme Court rejected the notion that section 8 of the Charter absolutely disallowed any type of cell phone searches incidental to an arrest. The Supreme Court, however, did examine what needed to be done in order to ensure that a search of a cell phone incident to an arrest would be compliant with the Charter.
In order for a search of a cell phone to be compliant with section 8 of the Charter, the court found that the following requirements must be met:
- The arrest was lawful;
- 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.
- 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 SCC found that the search of Mr. Fearon was not reasonable and breached Mr. Fearon’s section 8 rights, since the police did not take detailed notes about what they looked at in the phone and why. Despite this, the Court still found that the evidence was admissible.
The decision in R v Fearon is indicative of a court attempting to strike a balance between protecting the public and law enforcement, and the privacy rights of individuals. It is too early to tell whether or not such a balance will be accomplished, however, one cannot deny the importance of such a decision in a country where nearly everyone has a cell phone, which often contains a significant amount of personal information.