In earlier posts in November of 2013 and February of 2013 we discussed an Ontario Court of Appeal Decision in R. v. Fearon in which the Court ruled that a warrantless search of a cell phone, incidental to arrest, must be limited to a “cursory” examination. Leave to Appeal was granted by the Supreme Court of Canada and the appeal will now be heard on May 23, 2014, a delay from an earlier hearing date of April 16, 2014.

A brief reminder of the facts. The accused, Fearon, was arrested shortly after a robbery, with a gun, of a jewelry sales lady in Toronto. Upon arrest, the police conducted a pat down search and found his cell phone. The phone was not locked or password protected and the office looked through it and checked text messages. What did he find? Incriminating messages and photographs of a gun and cash. At trial, the evidence found on the cell phone was admitted.

The Supreme Court will be called upon to determine:

  • Whether a search of the appellant’s cell-phone during his arrest breached s. 8 of the Charter;
  • Whether the legal framework governing searches incident to arrest extends to cell-phones;
  • Whether a cell phone exception should be made to the common law power of police to search incident to arrest;
  • Whether evidence found on the appellant’s cell-phone during his arrest should have been excluded pursuant to s. 24(2) of the Charter?