R. v. Fearon (K.),

• Jurisdiction: Ontario
• Judge: MacPherson, Armstrong and Watt, JJ.A.
• Neutral Citation: 2013 ONCA 106
• Citation: (2013), 302 O.A.C. 284 (CA),2013 ONCA 106,114 OR (3d) 81,100 CR (6th) 296,296 CCC (3d) 331,[2013] CarswellOnt 1703,[2013] OJ No 704 (QL),302 OAC 284,114 O.R. (3d) 81,302 O.A.C. 284,(2013), 302 OAC 284 (CA),[2013] O.J. No 704 (QL)
• Date: 07 September 2012
• Court: Court of Appeal (Ontario)

R. v. Fearon (K.) (2013), 302 O.A.C. 284 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MR.002

Her Majesty the Queen (respondent) v. Kevin Fearon (appellant)

(C54387; 2013 ONCA 106)

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

Ontario Court of Appeal

MacPherson, Armstrong and Watt, JJ.A.

February 20, 2013.

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 photographs of a gun as well as an incriminating text message. The accused was taken to the police station and placed in an interview room. When the police returned after unintentionally leaving him alone for five hours, he gave a full videotaped confession but maintained that the firearm used in the robbery was an imitation handgun. At trial, the accused sought to exclude the evidence (i.e., photographs and text messages) that had been obtained from his cell phone upon his arrest, claiming that the search of the cell phone incident to arrest constituted an unreasonable search and seizure (Charter, s. 8). He also sought to exclude his confession, arguing that it was obtained in breach of his s. 10(b) Charter right to counsel and that it was involuntary.

The Ontario Court of Justice, per Oleskiw, J., in a decision with neutral citation 2010 ONCJ 645, found that there was no breach of s. 8 and admitted the evidence obtained from the cell phone. The judge opined that even if there was a breach of s. 8 she would have admitted the evidence (Charter, s. 24(2)). The trial judge also found that the accused's confession was voluntary. Although there had been a technical breach of the accused's s. 10(b) rights, the judge held that the accused's statements should be admitted pursuant to s. 24(2) of the Charter. In the result, the accused was convicted of robbery. The accused appealed, arguing that the trial judge erred in holding that the search of the cell phone was a lawful search incident to arrest and that the search did not infringe his s. 8 rights. The accused contended that the court should carve out a cell phone exception to the doctrine of search incident to arrest. He also argued that the trial judge erred by concluding that the accused's statements to the police were voluntary and did not infringe his Charter-protected s. 10(b) right to counsel. Additionally he argued that the trial judge erred by admitting both the incriminating text and pictures produced from the cell phone search and the accused's statements to the police.

The Ontario Court of Appeal dismissed the appeal.

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 - 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 photographs of a gun and an incriminating text message - At the police station the officers further examined the phone - The trial judge held that the accused's s. 8 Charter rights were not violated - The accused appealed - The Ontario Court of Appeal dismissed the appeal - The trial judge did not err in finding that the examination of the cell phone contents at the time and place of arrest and later at the police station were within the ambit of the common law doctrine of search incident to arrest - The court opined that the proper course would have been to obtain a search warrant prior to the examinations of the phone at the station; however, the trial judge made no palpable and overriding error in finding that the examination of the contents of the phone at the police station was connected to the search at the scene of the arrest - See paragraphs 25 to 60.

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 photographs of a gun and an incriminating text message - At the police station the officers further examined the phone - The trial judge held that the accused's s. 8 Charter rights were not violated - The accused appealed - The Ontario Court of Appeal dismissed the appeal - The court stated, inter alia, that "There was no suggestion in this case that this particular cell phone functioned as a 'mini-computer' nor that its contents were not 'immediately visible to the eye'. Rather, because the phone was not password protected, the photos and the text message were readily available to other users. If the cell phone had been password protected or otherwise 'locked' to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant" - See paragraphs 74 and 75.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - An accused on trial for robbery argued that the court should carve out a cell phone exception to the doctrine of search incident to arrest - The Ontario Court of Appeal, quoting from the reasons in R. v. Manley (ONCA 2011) stated that it was "'neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest'" - The court stated further that "It may be that some future case will produce a factual matrix that will lead the court to carve out a cell phone exception to the law as articulated in [R. v.] Caslake [SCC 1998]. This is not that case. To put it in the modern vernacular: 'If it ain't broke, don't fix it.'" - See paragraphs 61 to 77.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for robbery while armed with a firearm - He was taken to the police station and placed in an interview room - When the police returned after unintentionally leaving him alone for five hours, he gave a full videotaped confession but maintained that the firearm used in the robbery was an imitation handgun - At trial, the accused sought to exclude his confession, arguing that it was obtained in breach of his s. 10(b) Charter right to counsel and that it was involuntary - The trial judge found that the statements to police were voluntary and although there had been a technical breach of the accused's s. 10(b) rights, the accused's statements should be admitted pursuant to s. 24(2) of the Charter - The accused appealed - The Ontario Court of Appeal dismissed the appeal, agreeing with the trial judge's analysis of these issues - See paragraphs 79 to 81.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - 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 photographs of a gun and an incriminating text message - At the police station the officers further examined the phone - The trial judge held that the accused's s. 8 Charter rights were not violated - The accused appealed - The Ontario Court of Appeal dismissed the appeal - The trial judge did not err in finding that the examination of the cell phone contents at the time and place of arrest and later at the police station were within the ambit of the common law doctrine of search incident to arrest - In any event, the court agreed with the trial judge that, even if there was a breach of s. 8, the admission of the evidence from the cell phone would not bring the administration of justice into disrepute (Charter, s. 24(2)) - See paragraph 78.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

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 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Civil Rights - Topic 4604 ].

Police - Topic 3185

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

Cases Noticed:

R. v. Manley (M.) (2011), 275 O.A.C. 81; 269 C.C.C.(3d) 40; 2011 ONCA 128, refd to. [para. 31, footnote 1].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 34].

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; 155 D.L.R.(4th) 19, appld. [para. 44].

R. v. Polius (K.), [2009] O.T.C. Uned. H39 (Sup. Ct.), dist. [para. 48].

R. v. Mohamad (H.) (2004), 181 O.A.C. 201; 69 O.R.(3d) 481 (C.A.), refd to. [para. 62, footnote 2].

R. v. Little, [2009] O.J. No. 3278, refd to. [para. 63].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63 (S.C.), refd to. [para. 67].

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. [para. 68].

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. [para. 68].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), refd to. [para. 68].

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. [para. 68].

Counsel:

Sam Goldstein, for the appellant;

Randy Schwartz, for the respondent;

Susan M. Chapman and Jennifer Micallef, for the intervener, Criminal Lawyers' Association;

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

Kevin Wilson, for the intervener, Public Prosecution Service of Canada.

This appeal was heard on September 7, 2012, before MacPherson, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Armstrong, J.A., on February 20, 2013.