SUPREME COURT OF CANADA
Citation: R. v. Fearon, 2014 SCC 77
Her Majesty The Queen
Reasons for Judgment:
Kevin Fearon Appellant
Her Majesty The Queen Respondent
Present: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Search and seizure — Search incident to arrest — Cell phone found on accused and searched without warrant — Text message and photos on cell phone introduced as evidence at trial — Whether general common law framework for searches incident to arrest needs to be modified in case of cell phone searches incident to arrest — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — If so, whether evidence discovered in search should be excluded — Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Police — Powers — Search incident to arrest — Warrantless search of cell phone — Text message and photos on cell phone introduced as evidence at trial of accused — Whether common law police power to search incident to arrest permits cell phone searches — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — Canadian Charter of Rights and Freedoms , s. 8 .
Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery. The robbers grabbed some bags, one of which was filled with jewellery, and fled in a black vehicle. The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun. Later that evening, they located and secured the getaway vehicle, and arrested F and C. During the pat?down search of F conducted incident to arrest, police found a cell phone in F’s pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun. 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 theCharter . She admitted the photos and text message and convicted F of robbery with a firearm and related offences. The Court of Appeal dismissed an appeal.
Held (LeBel, Abella and Karakatsanis JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Cromwell, Moldaver and Wagner JJ.: 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.
The power to search incident to arrest is extraordinary in that it permits reasonable searches when the police have neither a warrant nor reasonable and probable grounds. That the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested. This power must be exercised in the pursuit of a valid purpose related to the proper administration of justice and the search must be truly incidental to the arrest.
Like other searches incident to arrest, prompt cell phone searches incident to arrest may serve important law enforcement objectives: they can assist police to identify and mitigate risks to public safety; locate firearms or stolen goods; identify accomplices; locate and preserve evidence; prevent suspects from evading or resisting law enforcement; locate the other perpetrators; warn officers of possible impending danger; and follow leads promptly. Cell phone searches also have an element of urgency, which supports the extension of the power to search incident to arrest.
Safeguards must be added to the law of search of cell phones incident to arrest in order to make that power compliant with s. 8 of the Charter . Ultimately, the purpose of the exercise is to strike a balance that gives due weight to the important law enforcement objectives served by searches incidental to arrest and to the very significant privacy interests at stake in cell phone searches. Consequently, 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 . 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. 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.
None of the three main modifications to the common law power to search cell phones incident to arrest previously suggested in the case law strike the balance required by s. 8 . First the considerations that prompted the Court to take a categorical approach with respect to the non?consensual seizure of bodily samples are entirely absent in this case. Second, police will rarely have reasonable and probable grounds to search for safety purposes or to believe that evidence of the offence will be found on the phone at the time of arrest. Third, allowing cell phone searches only in exigent circumstances would share the pitfalls of imposing a standard of reasonable and probable grounds, and would give almost no weight to the law enforcement objectives served by prompt searches. Moreover, the search incident to arrest exception to the warrant requirement is not a subset of the exigency exception.
In this case, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, breached F’s s. 8 rights. Although they were truly incidental to F’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which F had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking.
Despite that breach, the evidence should not be excluded. The impact of the breach on F’s Charter ?protected interests favours exclusion of the evidence, but it does so weakly. Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F’s privacy was not particularly grave. Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact. However, other factors favour inclusion. As to the seriousness of the Charter ?infringing state conduct, the dominant view at the time of the search approved cell phone searches incident to arrest. In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone. While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused’s potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence. Society’s interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth?seeking function of the justice system.