Fearon: Police Searches & Mobile Phones

Today, the Supreme Court of Canada (“SCC”) issued a significant decision with respect to another piece of technology that we commonly carry on our person – mobile phones. The court in R. v. Fearon addressed whether the police can search such phones under the common law power to “search incident to a lawful arrest”. In doing so, the SCC has changed the common law with respect to such searches.

The facts of the case are straightforward. Two men, one armed with a handgun, robbed a jewellery merchant. The police found the getaway vehicle that evening and arrested two men. During a pat down search of one of the men, Mr. Fearon, the police found a mobile phone. The police went through the phone and found a draft text message, which read in part “We did it”, as well as some photos, one of which was of a handgun.

The trial judge found that the search of the cell phone incident to arrest had not breached s. 8 of the Charter of Rights and Freedoms; admitted the photos and text message as evidence; and convicted Mr. Fearon. The Court of Appeal dismissed an appeal; the Supreme Court, in today’s narrow decision (4-3) dismissed a further appeal, leaving the trial decision to stand.

From a privacy perspective, the key aspect of the case is the fact that the search was “incident to arrest”. As a starting point, the SCC in Cloutier v. Langlois succinctly described the common law power in this area:

 “ . . . it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him.”

The “incident to arrest” power is different because the police do not have a warrant or reasonable and probable grounds to conduct a search. It exists because there are legitimate law enforcement reasons to permit such searches. However, it is qualified by the fact that any such search must have a valid purpose related to the proper administration of justice and must be truly incidental to the arrest.

However, in writing for the majority, Mr. Justice Cromwell recognizes that the existing legal framework has to take into account – in some respects, as was the case in Spencer earlier this year – that these devices (mobile phones) are also gateways to our personal world and such searches have the potential to be significant invasions of privacy.

To balance this search power with s. 8 of the Charter, this decision changes the law so as to require four conditions to be met:                 

 1. The search must be truly incidental to the arrest.

2. The arrest must be lawful.

3. The nature and the extent of the search must be tailored to its purpose.  “Purposes” here are defined as (a) protecting the police, the accused or the public; (b) preserving evidence; and, (c) discovering evidence, if the investigation will be stymied or significantly hampered without the ability to promptly conduct the search.  In practical terms, this means only recently sent or drafted emails, texts, photos and the call log, although other searches may, in some circumstances, be justified.  The search or download of the entire contents of a phone could not be justified.

4. The police must take detailed notes of what they have examined on the device and how they examined it. This includes noting the applications searched, the extent of the search, the time of the search, its purpose and its duration.

The court felt that in Mr. Fearon’s case the first three of these criteria were met but exclusion of the evidence was not warranted because the police had not kept records as to what was searched or how or why.

In dissent, the minority, through the opinion of Madame Justice Karakatsanis, was of the view that searches of personal digital devices risked serious encroachments on privacy because individuals have a high expectation of privacy in their digital devices. As a result, the “incident to arrest” search power did not permit access to mobile devices and judicial pre-authorization was required to satisfy the Charter, although this would not be necessary in “exigent circumstances”. This might delay the prompt pursuit of the investigation but one has to respect the privacy interest in the information held by a personal digital device. Whatever evidence that exists on a mobile phone can be held until a warrant is obtained.

The minority also thought that the majority’s four conditions would create practical problems, raise police uncertainty, and increase after-the-fact litigation.

I agree with the after-the-fact litigation point. The key arguments will likely revolve around whether or not an “investigation will be stymied or significantly hampered absent the ability to promptly conduct the search”. A sort of “they-could-have-waited-for-a-warrant” argument, if you will. I also suspect that the lesson learned from this story by future criminals is this: don’t incriminate yourself using your own mobile phone.