As you have no doubt read by now, the Supreme Court of Canada has issued its widely anticipated ruling in R. v. Fearon. As we have previously reported the issue on the appeal was whether the police could search a person’s phone as an incident of their arrest or whether a warrant is needed. More details of the circumstances giving rise to the appeal can be found in this earlier post. In a four to three decision the Court ruled that such searches were ok, subject to some very strict guidelines and restrictions. The court recognized that the power to search without a warrant, incidental to a lawful arrest, is an extraordinary power that needs to be particularly constrained when a cell phone is involved, because of the amount of personal information to be found on such devices.
According to the majority, four criteria must be met to permit such searches to comply with s. 8 of the Charter.
“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.”
These criteria or conditions, particularly the second and third, are likely to cause considerable confusion and be the subject of considerable discussion among law enforcement agencies trying to put them into every day use.