February 26th, 2013
As a general rule, individuals should be free from interference by the state unless the law specifically authorizes such interference (see e.g., R v Wong  3 SCR 36, para 28). In the context of investigating crimes, this means that the police, again, as a general rule, may only search a person or place likely to contain evidence relating to a crime if they have obtained a search warrant authorized by a member of the judiciary.
The principal exception to this rule, however, is the common law doctrine of “search incident to arrest,” which permits officers who have made a lawful arrest to conduct a limited search for specific purposes. Since 1990, when the Supreme Court of Canada confirmed that this common law rule is consistent with the Charter of Rights and Freedoms, lower courts have grappled with the task of defining the limits of the doctrine. Does the power to search incident to arrest include the power to conduct a strip search? What about a search of the home? Or, how about the contents of an accused’s cell phone? The latter question was squarely at issue in R v Fearon 2013 ONCA 106, a decision rendered by the Ontario Court of Appeal last week.
In this post, I will take readers through the key aspects of the decision, provide a summary of what I understand to be the state of the law on this point, and attempt to address some of the scorn that has since been heaped on Ontario’s highest court.
The Factual Background
As the July 26, 2009 workday came to a close, a merchant operating a jewellery stand at a flea market in North York was confronted by two large men. One of the individuals forced her, at gunpoint, to open the trunk of her car, while the other stood by. The men stole somewhere between $10,000 and $40,000 worth of jewellery, and then sped off.
An eyewitness was able to recall the license plate number of the getaway vehicle, which led police to Kevin Fearon’s co-accused, Junior Chapman. The police suspected that Fearon and Chapman, who were both known to police, might have fled for Fearon’s nearby apartment building. On arrival, the two men were seen leaving through the lobby of the building, and were arrested by the police.
An arresting officer then conducted a pat down search of Fearon, which revealed his cell phone. The phone was found to contain photographs of a gun and cash, as well as a text message confessing to the crime. The arresting officer noted that the cell phone was “on” and that it was not “locked” to users other than the appellant.
Following this, the police conducted additional warrantless searches of the appellant’s cell phone at the police station; nothing of value to the investigation was uncovered. The police used the fruits of the initial search to apply for a search warrant to download the contents of the cell phone. That search warrant was granted, the photographs and the text message were entered into evidence, and Kevin Fearon was convicted of robbery and sentenced to six years in prison.
The Common Law Power to Search Incident to Arrest
As alluded to above, the leading Supreme Court decision on search incident to arrest is Langlois v Cloutier  1 SCR 158. There, a unanimous court held that a frisk search incident to a lawful arrest is a “minimal intrusion … necessary to ensure that criminal justice is properly administered” and will be compliant with the Charter when it is made incident to a lawful arrest, and where three conditions are met:
1) The power does not impose a duty: The police have some discretion in conducting the search and they may be satisfied that the law can be effectively and safely applied without a search. This requirement brings general police directives to search everyone who is arrested under scrutiny.
2) The search must be for a valid objective in pursuit of the ends of criminal justice: Traditionally, these involve preventing harm or threat of harm to the police, protecting and preserving evidence that may be otherwise destroyed, and discovering new evidence relevant to the crime under investigation, though this is not a closed list.
3) The search must not be conducted in an abusive fashion: The level of physical or psychological constraint should be proportionate to the objectives sought and the circumstances of the situation.
Years later, in R v Caslake  1 SCR 51, Lamer CJ provided what has become the classic articulation of the limits of the power to search incident to arrest, when he stated:
The police must be able to explain, within the purposes articulated in Cloutier [#2, above], or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance to not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation (emphasis added, para 25).
Put another way, a search incident to arrest will not violate s. 8 of the Charter where (1) a lawful arrest has been made, (2) the arresting officer believes a search of the arrested individual and the surrounding space is necessary for effectively and safely applying the law, (3) the officer has a valid law enforcement related purpose, which itself is objectively reasonable, and (4) the search itself was not conducted in an abusive fashion. These considerable doctrinal restrictions on the common law power to search incident to arrest are indeed necessary to strike a balance between society’s interest in the effective administration of justice and its interest in being free from unreasonable state intrusion.
Does the Power to Search Incident to Arrest Include the Right to Search a Cell Phone?
At trial and on appeal, the appellant did not challenge the legality of his arrest, nor did he challenge the legal authority of the police to conduct a pat down search incident to that arrest. Rather, the appellant put forward two arguments:
- First, the police did not have an objectively reasonable belief that the search of the phone would yield evidence of the robbery (or, if that belief did exist, the search of the contents went well beyond the limits of the power to search incident to arrest and that a warrant should have been properly obtained).
- Second, the Court of Appeal should carve out a cell phone exception to the doctrine of search incident to arrest.
In the first place, Armstrong JA, writing for a unanimous Court of Appeal, held that there was no proof of a palpable and overriding error to disturb the trial judge’s finding that the police reasonably believed that an examination of the contents of the cell phone would yield relevant evidence. On this point, the court stated:
The police had information that the appellant had acted with a second person and that a third person was involved in the stashing of the stolen jewellery. There was therefore a potential for communication among the three suspected participants. In addition, the police had a legitimate concern about the location of the gun and the stolen jewellery. Any communication among the three suspects could lead to the discovery of one or both (para 47).
With respect to the appellant’s “alternative” first submission—namely, that the search went beyond the permissible limits of a search incident to arrest, and that a warrant should have been obtained—the Court of Appeal was more nuanced. On the initial, cursory search, the court held:
I cannot conclude, in the circumstances of this case, that the original examinations of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest… the cell phone was turned “on” and it was not password protected or otherwise “locked” to users other than the appellant (para 57).
However, on the subsequent warrantless searches of the cell phone at the police station, Armstrong JA stated: “In my view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and then proceed to obtain a search warrant” (para 58). Unfortunately for the appellant, this finding was of no consequence since “[n]o additional evidence appears to have been discovered by the police and none was tendered in evidence from that search” (para 59).
Finally, Armstrong JA was abruptly dismissive of the submission that the court should carve out a cell phone exception from the doctrine of search incident to arrest. On this point, the court held:
The facts of this case, with the correct application of the existing law, suggest that the search and seizure of the cell phone at the scene of the arrest were carried out appropriately and within the limits of the law. … 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 Caslake. This is not that case. To put it in the modern vernacular: “if it ain’t broke, don’t fix it” (at paras 72, 77).
What the Court of Appeal Did Not Say in R v Fearon
While there is a legitimate argument to be made the Court of Appeal grossly understated the expectation of privacy that Canadians have in their cell phones (I made that argument here in relation to internet browsing activity), there are certain aspects of the decision that beg for clarification.
First, the Fearon case is not novel, and it does not “grant” police the power to do anything the law hasn’t already empowered them to do. In fact, in 2011, the Ontario Court of Appeal held that the power to search incident to arrest did, in the correct circumstances, include the right to conduct a cursory search of the arrestee’s cell phone.
Second, the search in Fearon was not permitted because the cell phone wasn’t locked and, as should now be clear, the police cannot indiscriminately search one’s “unlocked” cell phone on arrest. While Armstrong JA did note that it would not have been appropriate for police to take steps to search a “locked” phone (because, presumably, that would signify a greater expectation of privacy than would an “unlocked” phone), this quote has been erroneously read to suggest that all “unlocked” phones are fair game for police to search on arrest. The doctrinal requirements for a search incident to arrest must, in every case, be met.
Finally, the court also explicitly indicated that not all cell phones are alike. There was no evidence that the appellant’s cell phone “functioned as a mini-computer” or that the contents of the cell phone were “not immediately visible to the eye” (para 74). Hence, this particular accused’s cell phone was especially exposed to inspection by third parties. The Fearon decision leaves open the possibility that, on similar facts, a police search of a different cell phone (even an unlocked one) may be beyond the scope of the power to search incident to arrest.
In sum, the Court of Appeal’s decision in Fearon is probably not as much of a victory for law enforcement as some would herald, nor is it as offensive to individual privacy as others are led to believe. It is, in my view, an appropriate example of judicial deference and a restrained application of existing law. As is often the case in the law, when it comes to the police’s power to search an arrestee’s cell phone, context matters.[filed: Constitutional Law Criminal Law Criminal Procedure]