The Year in Review: Robichaud’s Canada’s Top Criminal Law Cases for 2014

#1: R. v. Fearon, 2014 SCC 77

One sentence explanation:

Upon a person’s arrest, police may search the informational contents of a cell phone, without a warrant, for evidence, provided that certain conditions are met.

Why it’s (the most) important (case of 2014):

Amidst global concerns relating to ubiquitous state surveillance and the so-called “end of privacy,” the Supreme Court of Canada added to this controversy with their decision in R. v. Fearon, permitting warrantless searches of a person’s cell phone without warrant.

Interestingly, this case is squarely at odds with the Supreme Court of the United States in Riley v. California that found police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

In Canada, the opposite is now law:

Mr. Fearon was charged with participating in a robbery. Upon arrest, he was searched and his phone was seized. The police then searched the contents of the phone both at the scene of arrest and at the police station, finding an incriminating text message and photographs.

There was no evidence the phone had been locked or password protected, or that it had computer-like abilities. Months later, the police obtained a warrant and re-examined the phone. The trial judge held the search incident to arrest was not expansive or abusive and admitted the evidence seized from it.

Cromwell J., writing for the four-member majority, held that the common law power to search incident to arrest applied, but had to be modified due to the much more significant invasion of privacy that could be represented by a search of a cellphone. The fact that the search was conducted incident to the arrest was established by police testimony that others might have been helping to hide or move stolen property, a firearm was known to have been used, and there was an unidentified suspect. However, the Crown had failed to demonstrate that the search was lawful due to an absence of detailed evidence about precisely what was searched, how, and why. Despite the breach, Cromwell J. admitted the evidence under s.24(2) of the Charter: the police had made an honest mistake and acted in a manner they reasonably believed was lawful.

Although the search must be done in accordance with certain rules prescribed by the Court, those rules are riddled with impracticalities and a blind trust in the restraint of state agents acting on higher principles of privacy rather than the immediacy of the moment in searching phones and investigating crimes.

The police may search a person’s cellphone incident to that person’s arrest if the following conditions are met:

The arrest must be lawful.

The search must be truly incidental to the arrest and for a law enforcement purpose. Such purposes are protecting the police, the accused, or the public; preserving evidence; or, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence. The objectives served by searches incident to arrest will generally be most compelling in the investigation of crimes involving, for example, violence or threats, public safety, serious property offences involving readily disposable property, or drug trafficking.

The nature and extent of the search are tailored to its purpose. Generally, only recently sent or drafted emails, texts, photos, and calls will be available, although other searches may be justified by the circumstances.

The police take detailed notes about the search.

Whether a cellphone was “locked” or password-protected has little weight when assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable (para. 53), Where there is a “grey area” in the law, the police “should err on the side of caution by choosing a course of action that is more respectful of the accused’s potential privacy rights.” (para 94)

Karakatsanis J., for the three-member dissent, would have held that the police require either a warrant or exigent circumstances to search a cellphone seized incident to arrest. In her poignant and perhaps prophetic dissent, she writes:

[112]                      Our Charter  jurisprudence recognizes the concept of a “sphere of privacy” to define the proper limits of state authority in a free and democratic society. It recognizes that privacy – a sphere of protection for private life – is essential to personal freedom and dignity (see R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 16). Privacy gives us a safe zone in which to explore and develop our identities and our potential both as individuals and as participants in our society.
[113]                      On our digital devices, we may choose to investigate an idea on the Internet without wishing to attach ourselves to it. We may take pictures in the context of an intimate relationship, but not wish that these pictures be seen by others and redefine our public image. We may debate controversial ideas through text message or email, but not intend to commit to the opinions expressed.
[114]                      Individuals should be free to choose the audiences with whom they share their ideas, habits, experiments and movements. We should be free to act, think, feel, and ponder outside the public gaze.[1] We should feel free to take actions that may elicit negative reactions, or which may be inherently “incompatible with . . . putting on a public face”: […] But individuals would fear to do these things if there were no private arena; no place for connections shared only between intimately connected people; no controversial discussion and debate. As Professor Austin argues, at pp. 146-47, we need this private space in order to grow as distinct individuals, and in order to have an “authentic inner life and intimate relationships”.

For further commentary, please read: “Supreme Court’s Privacy Streak Comes To End: Split Court Affirms Legality of Warrantless Phone Searches Incident to Arrest” by Michael Geist or my interview with the Canadian Bar Association magazine The National here.