In R. v. Fearon, 2014 SCC 77 , issued on Dec. 11,
2014, the Supreme Court of Canada held that the common law power to
search incident to a lawful arrest permits the search of cell
phones and similar devices found on the suspect, with some added
safeguards in order to make that power compliant with s. 8 of the
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. Fourth, 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
In this case, the initial search of the cell phone breached the
s. 8 rights of the accused. Although the search was truly
incidental to the accused's arrest for robbery, was for valid
law enforcement objectives, and was appropriately linked to the
offence for which the accused had been lawfully arrested, detailed
evidence about precisely what was searched, how and why, was
lacking. However, despite that breach, the evidence obtained from
the accused's cell phone was not excluded.
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