As you have no doubt read by now, the Supreme Court of Canada has issued its widely
anticipated ruling in R. v. Fearon. As we have
previously reported the issue on the appeal was whether the
police could search a person's phone as an incident of their
arrest or whether a warrant is needed. More details of the
circumstances giving rise to the appeal can be found in this
earlier post. In a four to three decision the Court ruled that such
searches were ok, subject to some very strict guidelines and
restrictions. The court recognized that the power to search without
a warrant, incidental to a lawful arrest, is an extraordinary power
that needs to be particularly constrained when a cell phone is
involved, because of the amount of personal information to be found
on such devices.
According to the majority, four criteria must be met to permit
such searches to comply with s. 8 of the Charter.
"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."
These criteria or conditions, particularly the second and third,
are likely to cause considerable confusion and be the subject of
considerable discussion among law enforcement agencies trying to
put them into every day use.
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