January 2015

Police authorized to conduct cell phone searches subject to certain conditions

By Annie Charron

Following the armed robbery of a merchant, the thieves fled with a bag of jewellery in a car that was later found by police. Kevin Fearon and his accomplice were arrested. During a pat down search incident to arrest, the officer found a cell phone in Fearon's pocket. Police searched the cell phone and found a text message that read: "We did it were the jewellery at [...] burrrrrr [sic]" along with photos, including one of the handgun used in the robbery.

The Court was tasked with determining whether the text message and photos found in the cell phone could be introduced legally as evidence.

The case was appealed all the way up to the Supreme Court of Canada, which rendered a highly anticipated ruling on December 11, 2014. Totalling some 200 pages (4:3 split decision), the decision stipulates that police may conduct a cell phone search incident to arrest provided that four conditions are met:

1) The arrest is lawful 2) The search is truly incidental to the arrest 3) The nature and extent of the search is tailored to its purpose 4) The police take detailed notes of what they examined on the device and how they examined it

Police officers must also have valid law enforcement purposes which are to:

a) Ensure the safety of the police, the accused or the public b) Preserve evidence c) Discover evidence when the investigation is stymied or significantly hampered because a search cannot be conducted promptly

This new technology involves privacy risks, and it is therefore crucial to find a balance between the effective application of the law and the right of all individuals to be protected against abusive searches and seizures under section 8 of the Canadian Charter of Rights and Freedoms.

In the Fearon case, the text message and photos were not excluded from the evidence, as they are convincing and reliable and their exclusion would undermine the truth seeking function of the justice system.

Such decisions must be made on a case-by-case basis but the principles that emerge from the ruling allow cell phone searches incident to arrest provided that all conditions set in the ruling are met.