R v Fearon: Can police search a cellphone upon arrest?

• Position: Reprint

Posted By: Christine Chong

IMPORTANT UPDATE: Please see the article by Juliana Ho about the Supreme Court of Canada ruling in R. v Fearon. The Supreme Court of Canada decided that the police search of Mr. Fearon's cellphone did breach his Charter s. 8 right to be free of unreasonable search and seizure but decided that despite this breach, the evidence found on his cellphone could be used against him at his trial.

Introduction

On February 20, 2013, the Ontario Court of Appeal released its decision on whether the police are required to obtain a warrant before searching cellphones that are seized from persons they have arrested. [R v Fearon, 2013 ONCA 106] Based on the doctrine of 'search incident to arrest', the Court ruled that a warrant is not required if the cellphone is not password protected or locked in any other way.

Facts

On July 26, 2009, Mr. Fearon and two other men were arrested for robbing a jewelry merchant with a firearm. At the time of arrest, the police conducted a pat-down search of the suspects and discovered a cellphone on Mr. Fearon. It was turned "on" and had no password restricting access. The cellphone contained photographs of a gun, identical to the one used for the robbery, and cash. The phone also contained an incriminating text message. At the police station, other officers further searched the cellphone.

Mr. Fearon asked to speak to a lawyer, but was unintentionally left alone at the station for five hours without being able to contact a lawyer. When the officers returned, Mr. Fearon voluntarily confessed his involvement in the robbery before speaking to a lawyer.

Mr. Fearon challenged the admissibility of the cellphone's content as evidence based on his Canadian Charter of Rights and Freedoms right to be secure against unreasonable search and seizure (section 8 of the Charter). [6] He also argued that his confession should be excluded from evidence because the delay between his arrest and being able to contact a lawyer breached his Charter right to counsel (section 10(b).

Procedural History

On December 23, 2010, the Ontario Court of Justice found that the police search of Mr. Fearon's cellphone did not breach section 8 of the Charter. The Court stated that the arresting officer had a reasonable belief that the cellphone might contain evidence relevant to the robbery. This meant that the common law doctrine of 'search incident to arrest' applied. [7] Hence, the search did not require a warrant. The fact that the cellphone was not password-protected reduced the strength of Mr. Fearon's expectation of privacy and thus his argument for...