R. v. Fearon (K.), (2014) 326 O.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 23, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 326 O.A.C. 1 (SCC);2014 SCC 77

R. v. Fearon (K.) (2014), 326 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] O.A.C. TBEd. DE.047

Kevin Fearon (appellant) v. Her Majesty the Queen (respondent) and Director of Public Prosecutions of Canada, Attorney General of Quebec, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, British Columbia Civil Liberties Association, Criminal Trial Lawyers' Association (Alberta), Canadian Civil Liberties Association, Canadian Association of Chiefs of Police and Criminal Lawyers' Association (interveners)

(35298; 2014 SCC 77; 2014 CSC 77)

Indexed As: R. v. Fearon (K.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

December 11, 2014.

Summary:

The accused was arrested for robbery while armed with a firearm. Upon his arrest, a police officer conducted a pat down search and located a cell phone on his person. The officer examined the contents of the phone and found a photograph of a gun as well as a relevant draft text message. At the police station the officers further examined the phone, but no further evidence was tendered by the Crown, other than that found in the initial search. At trial, the accused sought to exclude the evidence that had been obtained from his cell phone upon his arrest, claiming that the search of the cell phone constituted an unreasonable search and seizure (Charter, s. 8).

The Ontario Court of Justice, per Oleskiw, J., in a decision with neutral citation 2010 ONCJ 645, found that the search of the cell phone incident to arrest did not breach s. 8 of the Charter and that the photograph and text message were admissible. The accused was convicted of robbery with a firearm and related offences. The accused appealed.

The Ontario Court of Appeal, in a decision reported (2013), 302 O.A.C. 284, dismissed the appeal, affirming the trial judge's conclusion that the search incident to arrest had not violated the accused's s. 8 rights. The accused appealed.

The Supreme Court of Canada (Karakatsanis, LeBel and Abella, JJ., dissenting) dismissed the appeal. The court held that the Crown did not meet the burden of establishing that the search incident to arrest was lawful. Therefore, the initial search was not reasonable and breached the accused's s. 8 Charter rights. However, this was not a case where the evidence should be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first, second, fifth, sixth and seventh Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - [See all Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See all Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada discussed generally the common law police power to search incident to arrest - After reviewing the case law, the court adopted a two-step analytical process in determining whether a cell phone search fell within the common law power: "The first [step] is whether the search here falls within the general common law parameters for searches incident to arrest. If it does, the second issue is whether, having regard to the appropriate balance between the need for effective law enforcement and the suspect's privacy interests, some further restrictions must be imposed and if so, what they should be" - See paragraphs 16 to 26 - In light of the Charter, the court modified the test as it applied to cell phone searches incidental to arrest - See paragraphs 44 to 99.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada stated that a search of a cell phone or similar device by police would comply with s. 8 of the Charter where: "(1) The arrest was lawful; (2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (a) Protecting the police, the accused, or the public; (b) Preserving evidence; or (c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest; (3) The nature and the extent of the search are tailored to the purpose of the search; and (4) The police take detailed notes of what they have examined on the device and how it was searched" - See paragraph 83.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - Upon arresting the accused for robbery, a police officer discovered a cell phone during a pat down search - The phone was neither locked, nor password protected - The officer examined the phone and found a photograph of a gun and a relevant draft text message - At the police station the officers further examined the phone, but no further evidence was tendered by the Crown aside from what was discovered initially - The accused alleged that his s. 8 Charter rights were violated - The Supreme Court of Canada held that the Crown did not meet the burden of establishing the search incident to arrest was lawful - There was an absence of detailed evidence about precisely what was searched, how and why - Therefore, the initial search was not reasonable and breached the accused's Charter rights - However, the evidence should not be excluded under s. 24(2) of the Charter - See paragraphs 85 to 99.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada discussed generally the common law police power to search incident to arrest and the relevant Charter considerations - The court stated, inter alia, that "We should not differentiate among different cellular devices based on their particular capacities when setting the general framework for the search power. So, for example, the same general framework for determining the legality of the search incident to arrest should apply to the relatively unsophisticated cellular telephone in issue in this case as it would to other devices that are the equivalent of computers" - See paragraph 52.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada, per Cromwell, J., discussed generally the common law police power to search incident to arrest and the relevant Charter considerations - Cromwell, J., inter alia, noted "that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual's phone is password-protected ... I would not give this factor very much weight in assessing either an individual's subjective expectation of privacy or whether that expectation is reasonable. An individual's decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone ... Cell phones - locked or unlocked - engage significant privacy interests. But we must also keep this point in perspective ..." - See paragraph 53.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada discussed generally the common law police power to search incident to arrest and the relevant Charter considerations - The court stated, inter alia, that "... while cell phone searches - especially searches of 'smart phones', which are the functional equivalent of computers - may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion ... So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will , result from law enforcement searches of cell phones. In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden. Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity. That cannot be said of cell phone searches incident to arrest" - See paragraphs 54 and 55.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada, per Cromwell, J., discussed generally the common law police power to search incident to arrest and the relevant Charter considerations - Cromwell, J., stated, inter alia, that "... the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest. As a result, my view is that the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted ..." - Cromwell, J., thereafter discussed how the general rules should be modified - He rejected the idea that s. 8 of the Charter categorically precluded any search of a cell phone seized incidental to a lawful arrest, that a reasonable and probable grounds requirement should be imposed or that such searches should be allowed only in exigent circumstances - He thereafter set out how the general rules should be modified - See paragraphs 44 to 84.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada held that the test for the exercise of the common law police power to search incident to arrest as it applied to searches of cell phones had to be modified in light of the Charter - The court stated that "The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence. Three modifications to the general rules would give effect to this approach" - Those modifications were: (1) the scope of the search had to be tailored to the purpose for which it might lawfully be conducted; (2) the third purpose for which searches incident to arrest were permitted, i.e., the discovery of evidence, had to be treated restrictively in this context; and (3) officers had to make detailed notes of what they had examined on the cell phone - See paragraphs 16 to 84.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada held that the test for the exercise of the common law police power to search incident to arrest as it applied to searches of cell phones had to be modified in light of the Charter - "First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why ..." - See paragraph 76.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada held that the test for the exercise of the common law police power to search incident to arrest as it applied to searches of cell phones had to be modified in light of the Charter - The first modification was that the scope of the search had to be tailored to the purpose for which it may lawfully be conducted - In elaborating on this modification, the court stated that "The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences." - See paragraph 79.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The Supreme Court of Canada held that the test for the exercise of the common law police power to search incident to arrest as it applied to searches of cell phones had to be modified in light of the Charter - The second modification was that searches incident to arrest for the purposes of discovery of evidence had to be treated restrictively in this context - "The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy ..." - See paragraph 80.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See third Civil Rights - Topic 1655.3 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest - [See all Civil Rights - Topic 1655.3 ].

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See all Civil Rights - Topic 1655.3 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See all Civil Rights - Topic 1655.3 ].

Cases Noticed:

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, refd to. [para. 2].

R. v. Otchere-Badu (F.), [2010] O.T.C. Uned. 1059; 2010 ONSC 1059, refd to. [para. 2].

R. v. Young, 2010 CanLII 74003 (N.L. Prov. Ct.), refd to. [para. 2].

R. v. Howell (W.F.) (2011), 313 N.S.R.(2d) 4; 990 A.P.R. 4; 2011 NSSC 284, refd to. [para. 2].

R. v. Franko (T.) (2012), 541 A.R. 23; 2012 ABQB 282, refd to. [para. 2].

R. v. Cater (K.) (2014), 349 N.S.R.(2d) 225; 1101 A.P.R. 225; 2014 NSCA 74, refd to. [para. 2].

R. v. D'Annunzio (2010), 224 C.R.R.(2d) 221 (Ont. Sup. Ct.), refd to. [para. 2].

R. v. Polius (K.), [2009] O.T.C. Uned. H39; 196 C.R.R.(2d) 288 (Sup. Ct.), refd to. [paras. 2, 162].

R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381; 1039 A.P.R. 381; 2013 NSCA 48, refd to. [para. 2].

R. v. Mann (R.S.) (2014), 357 B.C.A.C. 87; 611 W.A.C. 87; 310 C.C.C.(3d) 143; 2014 BCCA 231, refd to. [paras. 2].

R. v. Liew (S.F.) et al., [2012] O.T.C. Uned. 1826; 2012 ONSC 1826, refd to. [para. 2].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [paras. 3, 119].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 12, 120].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [paras. 12, 109].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [paras. 14, 121].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [paras. 14, 168].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [paras. 15, 123].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask. R. 1, refd to. [para. 17].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 17].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [paras. 20, 116].

R. v. Pohoretsky, [1987] 1 S.C.R. 945; 75 N.R. 1; 47 Man.R.(2d) 295, refd to. [para. 20].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 25].

United States of America v. Santillan (2008), 571 F. Supp.2d 1093 (D. Ariz.), refd to. [para. 48].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [paras. 51, 127].

R. v. Khan (M.R.), [2013] O.T.C. Uned. 4587; 287 C.R.R.(2d) 192; 2013 ONSC 4587, refd to. [para. 53].

R. v. Rochwell (R.), [2012] O.T.C. Uned. 5594; 268 C.R.R.(2d) 283; 2012 ONSC 5594, refd to. [para. 53].

Riley v. California (2014), 134 S. Ct. 2473, refd to. [para. 60].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [paras. 72, 123].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [paras. 89, 184].

R. v. Finnikin (C.) et al., [2009] O.T.C. Uned. X47 (Sup. Ct.), refd to. [para. 93].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 96].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 112].

R. v. Spencer (M.D.) (2014), 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 116].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 117].

United States of America v. White (1971), 401 U.S. 745, refd to. [para. 117].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 121].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 121].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), refd to. [para. 123].

R. v. White (K.) (2007), 223 O.A.C. 229; 85 O.R.(3d) 407; 2007 ONCA 318, refd to. [para. 141].

R. v. TELUS Communications Co., [2013] 2 S.C.R. 3; 442 N.R. 1; 304 O.A.C. 1; 2013 SCC 16, refd to. [para. 161].

R. v. Kelsy (M.) (2011), 283 O.A.C. 201; 2011 ONCA 605, refd to. [para. 175].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 184].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 188].

R. v. Cole (R.), [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 189].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 11].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487(1)(b), sect. 487.11 [para. 174]; sect. 529.3 [para. 72].

Authors and Works Noticed:

Austin, Lisa, Privacy and the Question of Technology (2003), 22 Law & Phil. 119, pp. 146, 147 [para. 114].

Austin, Lisa M., Control Yourself, or at Least Your Cor Self (2010), 30 Bull. Sci. Tech. & Soc. 26, generally [para. 114, footnote 1].

Brown, Patrick, Searches of Cell Phones Incident to Arrest: Overview of the Law as It Stands and a New Path Forward (2014), 27 Harv. J.L. & Tech. 563, p. 572 [para. 71].

Fontana, James A., The Law of Search and Seizure in Canada (3rd Ed. 1992), generally [para. 175].

Fontana, James A., and Keeshan, David, The Law of Search and Seizure in Canada (8th Ed. 2010), p. 1066 [para. 175].

Nagel, Thomas, Concealment and Exposure (1998), 27 Phil. & Publ. Aff. 3, pp. 18 to 20 [para. 114].

Counsel:

Sam Goldstein and Shelley Flam, for the appellant;

Randy Schwartz, for the respondent;

Kevin Wilson and W. Paul Riley, for the intervener, the Director of Public Prosecutions of Canada;

Dominique A. Jobin, for the intervener, the Attorney General of Quebec;

Jolaine Antonio, for the intervener, the Attorney General of Alberta;

Written submissions only by Tamir Israel, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Gerald Chan and Nader R. Hasan, for the intervener, the British Columbia Civil Liberties Association;

Dane F. Bullerwell and Jeffrey W. Beedell, for the intervener, the Criminal Trial Lawyers' Association (Alberta);

Matthew Milne-Smith, for the intervener, the Canadian Civil Liberties Association;

Leonard T. Doust, Q.C., and Bronson Toy, for the intervener, the Canadian Association of Chiefs of Police;

Written submissions only by Susan M. Chapman, Jennifer Micallef and Kristen Allen, for the intervener, the Criminal Lawyers' Association.

Solicitors of Record:

Sam Goldstein, Toronto, Ontario; Shelley Flam, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Public Prosecution Service of Canada, Toronto, Ontario, for the intervener, the Director of Public Prosecutions of Canada;

Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta;

University of Ottawa, Ottawa, Ontario, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Ruby Shiller Chan Hasan, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;

Pringle, Chivers, Sparks, Teskey, Edmonton, Alberta; Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the Criminal Trial Lawyers' Association (Alberta);

Davies Ward Phillips & Vineberg, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

City of Vancouver, Vancouver, British Columbia, for the intervener, the Canadian Association of Chiefs of Police;

Ursel Phillips Fellows Hopkinson, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association.

This appeal  was  heard  on  May 23, 2014, before McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The judgment of the court was released in both official languages on December 11, 2014, including the following opinions:

Cromwell, J. (McLachlin, C.J.C., Moldaver and Wagner, JJ., concurring) - see paragraphs 1 to 99;

Karakatsanis, J., dissenting (LeBel and Abella, JJ., concurring) - see paragraphs 100 to 198.