R. v. Fearon  (Charter of Rights — Search and seizure — Search incident to arrest — Cell phone searches)

On appeal from the judgment of the Ontario Court of Appeal, 2013 ONCA 106, affirming the accused’s conviction for armed robbery and related offences.  Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery.  The robbers grabbed some bags, one of which was filled with jewellery, and fled in a black vehicle.  The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun.  Later that evening, they located and secured the getaway vehicle, and arrested F and C.  During the pat-down search of F conducted incident to arrest, police found a cell phone in F’s pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun.  A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo.  Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

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.

HELD (4:3):  that the appeal should be dismissed. LeBel, Abella and Karakatsanis JJ. dissenting.

Per McLachlin C.J. and Cromwell, Moldaver and Wagner JJ.: 

The common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, although some modification of the existing common law framework is necessary because 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.

The power to search incident to arrest is extraordinary in that it permits reasonable searches when the police have neither a warrant nor reasonable and probable grounds.  That the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested.  This power must be exercised in the pursuit of a valid purpose related to the proper administration of justice and the search must be truly incidental to the arrest.

Like other searches incident to arrest, prompt cell phone searches incident to arrest may serve important law enforcement objectives:  they can assist police to identify and mitigate risks to public safety; locate firearms or stolen goods; identify accomplices; locate and preserve evidence; prevent suspects from evading or resisting law enforcement; locate the other perpetrators; warn officers of possible impending danger; and follow leads promptly.  Cell phone searches also have an element of urgency, which supports the extension of the power to search incident to arrest.

Safeguards must be added to the law of search of cell phones incident to arrest in order to make that power compliant with s. 8 of the Charter. Ultimately, the purpose of the exercise is to strike a balance that gives due weight to the important law enforcement objectives served by searches incidental to arrest and to the very significant privacy interests at stake in cell phone searches. Consequently, four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8. First, the arrest must be lawful. Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes.  In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.  Third, the nature and the extent of the search must be tailored to its purpose.  In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.  Finally, the police must take detailed notes of what they have examined on the device and how they examined it.  The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration.  The record-keeping requirement is important to the effectiveness of after-the-fact judicial review.  It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

None of the three main modifications to the common law power to search cell phones incident to arrest previously suggested in the case law strike the balance required by s. 8.  First the considerations that prompted the Court to take a categorical approach with respect to the non-consensual seizure of bodily samples are entirely absent in this case.  Second, police will rarely have reasonable and probable grounds to search for safety purposes or to believe that evidence of the offence will be found on the phone at the time of arrest.  Third, allowing cell phone searches only in exigent circumstances would share the pitfalls of imposing a standard of reasonable and probable grounds, and would give almost no weight to the law enforcement objectives served by prompt searches.  Moreover, the search incident to arrest exception to the warrant requirement is not a subset of the exigency exception.

In this case, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, breached F’s s. 8 rights.  Although they were truly incidental to F’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which F had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking.

Despite that breach, the evidence should not be excluded.  The impact of the breach on F’s Charter-protected interests favours exclusion of the evidence, but it does so weakly.  Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F’s privacy was not particularly grave.  Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact.  However, other factors favour inclusion.  As to the seriousness of the Charter-infringing state conduct, the dominant view at the time of the search approved cell phone searches incident to arrest.  In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone.  While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused’s potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence.  Society’s interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth-seeking function of the justice system.

Per LeBel, Abella and Karakatsanis JJ. (dissenting):

Searches of personal digital devices — including personal computers — risk serious encroachments on privacy and are therefore not authorized under the common law power to search incident to arrest. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the intensely personal and uniquely pervasive privacy interests in our digital devices. Section 8 of the Charter provides constitutional protection for privacy, which includes the right to be free of the threat of unreasonable intrusions on privacy and the right to determine when, how, and to what extent we release personal information.

Generally, the law enforcement interests will outweigh the privacy interest that an arrested person has in the physical items in his immediate vicinity. However, because the privacy interest in a digital device is quantitatively and qualitatively different from that in other physical items traditionally subject to such searches, the constitutional balance between privacy and the needs of law enforcement with respect to the search of cell phones and similar digital devices incident to arrest must be reassessed, using first principles.

A cell phone cannot be treated like any other piece of physical evidence that may be found on an arrestee and searched incident to arrest. Individuals have a high expectation of privacy in their digital devices because they store immense amounts of information, are fastidious record keepers, retain files and data even after users think they have been destroyed, make the temporal and territorial limitations on a search incident to arrest meaningless, and can continue to generate evidence even after they have been seized.

The law enforcement interests relate to the three purposes justifying searches incident to arrest:  safety, the preservation of evidence, and the discovery of evidence. Digital devices are not physically dangerous weapons and they cannot conceal such a weapon. The mere possibility that a phone could have been used to summon backup or that evidence on the cell phone could be remotely deleted should not justify a search incident to arrest.  Although the delay of obtaining a warrant may come at a cost to the prompt pursuit of the investigation, this cost must be weighed against the privacy interest in a personal digital device.

The most pressing state interests can be accommodated by the existing doctrine that permits warrantless searches under exigent circumstances. Exigent circumstances exist when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent destruction of evidence can be prevented by a warrantless search. Where exigent circumstances do not exist, a telewarrant can usually be obtained relatively quickly and with little harm to the investigation.

Thus, the weighty privacy interest that an arrested person has in a personal digital device will outweigh the state interest in performing a warrantless search incident to arrest, except in exigent circumstances.

Searches that treat a cell phone merely as a physical object continue to be permissible incident to arrest since it is the information that attracts a heightened expectation of privacy. As such, the police may usually seize a phone incident to arrest in order to preserve the evidence, but will require a warrant before they can search its contents.

In performing a search of a cell phone, whether under exigent circumstances or pursuant to a warrant, the police officers must not extend that search beyond the scope of the grounds permitting the search.

Tailoring the scope of the common law power to search incident to arrest does not adequately protect the reasonable expectations of privacy in personal digital devices. The majority’s proposed modifications generate problems of impracticality, police uncertainty, and increased after-the-fact litigation. And while detailed note-taking may be desirable, it may prove to be an impractical requirement, and it is not an adequate remedy to what would be an extraordinary search power. Fundamentally, the police are not in the best position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a digital device, and, if they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation.

Here, the searches of F’s phone were not justified and unreasonably infringed his privacy, in violation of s. 8 of theCharter. The facts of this case fall far below either standard for exigency.

The evidence which was unconstitutionally obtained should be excluded.  The state conduct was not particularly objectionable, given that the police acted in good faith, and the evidence is reliable; however, the high privacy interest individuals have in their electronic devices tips the balance in favour of exclusion. Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices.  This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal ― or indeed more pervasive ― than that found in an individual’s personal digital device or computer.  To admit evidence obtained in breach of this particularly strong privacy interest would tend to bring the administration of justice into disrepute. 

Reasons for judgment by Cromwell J., dissenting reasons by Karakatsanis J.  Neutral citation:  2014 SCC 77.  No. 35298

December 10, 2014

R. v. MacLeod  (Criminal Law – charge to jury)

As of right, notice of appeal filed June 20, 2014, on appeal from the judgment of the Court of Appeal for Nova Scotia pronounced June 20, 2014.  The accused was found alone with his deceased girlfriend in an apartment.  He told the police different stories surrounding her death.  In both, he denied any involvement.  The opinion of the medical examiner was that she had died by strangulation.  The accused called an expert pathologist who testified that the cause of death was undetermined, but the most likely cause was heart failure, not strangulation.  Counsel for the accused at trial urged the trial judge not to leave manslaughter with the jury.  The Crown said he should do so.  Initially, the trial judge agreed, but after the defence and Crown had completed their submissions, he changed his mind.  The jury was instructed that they had only two verdicts they could return: guilty of murder or not guilty.  The jury convicted the accused of murder.  On appeal, the accused argued the trial judge erred in law in failing to leave manslaughter with the jury.  The Crown argued the trial judge was right not to charge on manslaughter, and committed no reversible error in declining to do so.  The majority of the Court of Appeal concluded that a verdict of manslaughter was one that was reasonably open for the jury, either on the basis that the accused had caused the death of the deceased by an unlawful act, apart from an act of strangulation, or from such an act.  Furthermore, the jury were not left with a true picture of their options.  Culpable homicide, in these circumstances, is either murder or manslaughter.  Here they were told it was not.  Absent unusual circumstances, an accused is entitled to have the issue of manslaughter left with the jury.  If there is an air of reality to such a verdict, the duty of the trial judge to properly charge the jury is not abated by the positions of counsel.  A charge on manslaughter was not incompatible with the accused’s main argument that the death was caused by a heart attack.  The Crown burden to demonstrate that the error was harmless was not met.  The Court of Appeal quashed the conviction and ordered a new trial.  The dissenting judge would have dismissed the appeal because the evidence did not lend an air of reality to a lesser verdict of unlawful act manslaughter, and even if it had, the trial judge was still obliged to consider whether such an instruction to the jury would be completely inconsistent and incompatible with the only defence ever asserted by the accused, before deciding to charge the jury on such an optional verdict.  At issue is (1) whether the trial judge erred in refusing to charge the jury on the lesser verdict of unlawful act manslaughter, because there was no evidential foundation to lend an air of reality to such a verdict, and (2) even if there was an air of reality to such a lesser verdict, whether the trial judge was still obliged to consider whether such an instruction was completely inconsistent and incompatible with the only defence ever asserted by the accused before deciding to charge the jury on such a verdict.  HELD:  that the appeal be dismissed, brief oral reasons by the Court to follow.  Neutral citation 2014 SCC 76.  No. 35957.

December 8, 2014

R. v. Day  (Criminal law – Search and seizure - Admissibility)

As of right, Notice of Appeal filed April 10, 2014, on appeal from the judgment of the Court of Appeal for Newfoundland and Labrador pronounced March 11, 2014.  The appellant was charged with possession of cannabis marihuana for the purpose of trafficking in relation to the marihuana found in the trunk of his car.  At trial, a voir dire was held respecting the admissibility into evidence of marihuana, cell phones, and drug paraphernalia, all of which came from the car.  The trial judge found that the arrest of the appellant was unlawful and that his Charter rights to be free from arbitrary detention (s. 9) and secure from unreasonable search and seizure (s. 8) had been violated.  She excluded the marihuana, cell phones and drug paraphernalia from the evidence under subsection 24(2) of the Charter.  As a consequence, the appellant was acquitted.  The Crown appealed, arguing that the arrest of the appellant was lawful and that he was not arbitrarily detained.  The Crown further argued that the appellant’s right to be secure from unreasonable search and seizure was not breached, and that even if it was, the trial judge erred by excluding the evidence under subsection 24(2) of the Charterbecause the breach was minimal, the police acted in good faith, the searches of him and his car did not severely impact his privacy interests or affront his dignity, and society’s interest in an adjudication of the merits of the serious charge of trafficking called for admission of the evidence.  The majority of the Court of Appeal held that the Trial Judge erred in her assessment of the arresting officer’s subjective belief.  In addition, the majority held that the Trial Judge erred in law by failing to apply the correct legal principles set out inStorreyDebot and Garofoli to the evidence.  Had she applied the law as set out in the jurisprudence, she would have concluded that, in the totality of the circumstances the belief in grounds for arresting the appellant was objectively justifiable.  The majority also concluded that the searches of the appellant and his car were lawfully conducted incident to his arrest.  At issue is whether (1) the majority of the Court of Appeal erred in law by reversing the Trial Judge’s determination that sufficient objective grounds for lawful arrest did not exist, (2) the majority of the Court of Appeal erred in law by mischaracterizing the Trial Judge’s conclusion on the issue of the subjective belief of the Arresting Officer as a “question of law”, incorrectly subjecting it to appellate review on a standard of correctness and ultimately reversing the Trial Judge’s factual determination that the Arresting Officer did not possess the requisite subjective belief, (3) the majority of the Court of Appeal erred in law by reversing the Trial Judge’s conclusion that the search of the Appellant’s vehicle was not a valid search incidental to arrest, and (4) the majority of the Court of Appeal erred in law by reversing the Trial Judge’s decision to exclude the evidence of the vehicle search and acquit the Appellant.  HELD:  that the appeal be dismissed.  In brief oral reasons, the Court stated:  “In spite of the able argument of Mr. Mahoney, we are all of the view to dismiss the appeal for the reasons of Hoegg J.A.”  Reasons for judgment by the Chief Justice.  Neutral citation:  2014 SCC 74.  No. 35822.

R. v. Wilcox  (Criminal law)

As of right, Notice of Appeal filed April 17, 2014, on appeal from the judgment of the Court of Appeal of Quebec pronounced February 20, 2014.  The appellant was charged with aggravated sexual assault (s. 273 Cr.C.) and aggravated assault (s. 268 Cr.C.).  At trial, the appellant was found guilty on the first charge; the second charge was stayed.  The appellant is an American citizen and resident who nevertheless spends a significant time each year in Montreal because of the more opened-minded approach to homosexuality he finds here.  He learned in September of 2003 that he was HIV positive, but continued to maintain an active sex life.  The appellant and the complainant engaged in a sexual relationship, which included unprotected sexual intercourse. The  details of this relationship – including the number and timing of the occasions where the appellant and the complainant engaged in unprotected intercourse – are in dispute.  In particular, The appellant’s evidence was that he and the complainant engaged in consensual, unprotected intercourse after he disclosed his HIV-positive status to the complainant.  The complainant denies this.  The trial judge concluded that the appellant not rely on the complainant's implicit or contextual consent because he had sought out a sexual relationship with the complainant.  The required consent would have to have been clear and unequivocal, which was not the case in the absence of disclosure of his HIV positive status.  On appeal, the appellant argued that the trial judge erred in assessing the credibility of his testimony that the complainant engaged in unprotected intercourse with him on several occasions after learning of his HIV-positive status.  The majority of the Court of Appeal rejected this argument and held that the trial judge’s finding that the complainant is credible when he affirmed that he would not have engaged in his first risky sexual practice with the appellant had he known of the latter’s HIV status is congruent with other parts of the evidence and quite reasonable in the circumstances.  The dissenting judge disagreed and held that “this is one of the rare cases where deficiencies in the trial judge's credibility analysis justify appellate intervention.”  The dissenting judge would have allowed the appeal and ordered a new trial.  At issue is whether “the learned trial judge erred in law, as his apprehension of the evidence was palpably and clearly wrong, and that his findings were unsupported by the evidence when assessed in its whole.  More particularly, the trial judge failed to properly consider the three requisite steps set out in R v. W.(D.) when assessing the evidence as a whole.”  HELD:  that the appeal be dismissed.  In brief oral reasons, the Court stated:  “This is an appeal as of right on a question of law. We agree with the majority of the Quebec Court of Appeal that it was open to the trial judge to conclude beyond a reasonable doubt that the complainant would not have engaged in sexual relations had he known about the appellant’s HIV positive status.  The fact that the trial judge also found that it was possible that the sexual relationship continued after disclosure, despite the complainant’s denial, does not necessarily render that first finding unreasonable.  While it would have been preferable for the trial judge to more fully explain his reasoning relating to the complainant’s credibility, we are not satisfied that the trial judge erred in the analytical process set out in R. v. W. (D.), [1991] 1 S.C.R. 742, or that he failed to analyze the evidence as a whole relating to an ultimate issue.”  Reasons for judgment by Karakatsanis J.  Neutral citation:  2014 SCC 75.  No. 35758.