Supreme Court of Canada Rules Police Can Search Cellphones Upon Arrest







On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8 of the Charter . She admitted the photos and text message and convicted F of robbery with a firearm and related offences. The Court of Appeal dismissed an appeal."

The S.C.C. (4:3) dismissed the appeal.

Justice Cromwell wrote as follows (at paras. 3-4, 90-97):

"…we must strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures. In short, we must identify the point at which the “public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60.

In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched— is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.

The trial judge found no breach, but conducted a s. 24(2) analysis in the event she erred in that respect. Her findings of fact in this regard, like her other findings of fact, are entitled to deference on appeal.

The first factor is the seriousness of the Charter -infringing state conduct. An important consideration is whether admission of the evidence may send a message that the court condones serious state misconduct.

The trial judge made strong findings relevant to this factor. She concluded that, “if there was a breach, it was not conduct on the serious end of the scale”: Ruling, at para. 54. She also found that the police acted in good faith:

Sgt. Hicks and later Abdel-Malik and Nicol believed that they were acting within their powers of search incident to arrest at the time they looked into the contents. To date, there is no clear binding jurisprudence that would have directed the police to treat the cell phone in any way other than they did upon arrest. Detective Nicol applied for and obtained a warrant to do a comprehensive search and download of the phone six months after the initial searches with those searches fully disclosed in the information to obtain. He did this after learning about a case, subsequent to the searches on July 26 and 27, 2009, that ruled that he should get a warrant to have the Technological Crime Lab search and download the information stored in the cell phone. [ibid.]

The trial judge’s summary of the state of the law at the time of the search is a fair one, in my view. At the time, the decision most favourable to the appellant’s position was that of the Ontario Superior Court of Justice in Polius, but it was issued only slightly more than a month before the search and it contemplated “cursory” searches of cell phones incident to arrest: paras. 39 ff. (I note that R. v. Finnikin, 2009 CanLII 82187 (Ont. S.C.J.), to which the trial judge referred was decided several months after the search in this case.) As the trial judge pointed out, there were cases at the time approving cell phone searches incident to arrest. In fact, it is fair to say that this was the dominant view at the time of the arrest. The Court of Appeal’s unanimous decision upholding the legality of the search in this case supports the conclusion that the officer’s view of the law was reasonable. The officer’s subsequent conduct in obtaining the warrant which fully disclosed the earlier searches supports the trial judge’s conclusion that the police acted in good faith.

Of course, the police cannot choose the least onerous path whenever there is a gray area in the law. In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused’s potential privacy rights. But here, if the police faced a gray area, it was a very light shade of gray, and they had good reason to believe, as they did, that what they were doing was perfectly legal.

In my view, the first factor favours admission of the evidence. There is not here even a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to disassociate itself from that conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.

The second factor concerns the impact of the breach on the Charter ‑protected interests of the accused. Any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests. But, in the particular circumstances of this case, the trial judge found, in effect, that Mr. Fearon had not established that the invasion of his privacy had been particularly grave. This conclusion is supported by the fact that Mr. Fearon did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. As the trial judge noted, “[t]he unchallenged warrant mitigates against both the seriousness of the assumed earlier breach and the impact on [Mr. Fearon’s] Charter protected interests”: Ruling, at para. 54. So we are not here concerned with a search that could not have been legally conducted at all. Mr. Fearon’s privacy interests were going to be impacted one way or the other, and the particular breach of his s. 8 rights in this case did not significantly change the nature of that impact: see, e.g., R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 84. While this factor favours exclusion, it does so weakly.

The final factor is society’s interest in the adjudication of the case on its merits. The evidence here is cogent and reliable. As the trial judge found, its exclusion “would undermine the truth seeking function of the justice system”: Ruling, at para. 55. This factor favours admission."

Karakatsanis in dissent (concurred in by LeBel and Abella JJ. at paras. 100-106):







In this case, the appellant was arrested in connection with an armed robbery. Upon arrest, the police searched his cell phone and discovered incriminating evidence. The police had no grounds to suspect there was an imminent threat to safety and no grounds to believe there was an imminent risk of the destruction of evidence. Consequently, I conclude that the search was unreasonable and unconstitutional. The police were required to obtain a warrant before searching the phone, although they were entitled to seize the phone pending an application for a warrant. I would exclude the evidence so obtained."

Note: The summary is a reprint of an article by Istvan Fekete in iPhone in Canada. The body is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.