R. v. Gelowitz Date:, 2017 BCPC 325

Citation: R. v. Gelowitz Date: 20171025 2017 BCPC 325 File No: 32144 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DOMINIC DAVID JOSEPH GELOWITZ REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE K. L. WHONNOCK Counsel for the Crown: A. Murray Counsel for the Defendant: A. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: April 10, August 10 & October 5, 2017 Date of Judgment: October 25, 2017

BACKGROUND [ 1 ] Mr. Gelowitz comes before the court accused of one count of possession of cannabis for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] The allegations arose after Mr. Gelowitz was stopped at a road check while driving a Green Ford Explorer by Constable Blanche on June 5, 2014 at 21:10 hours. [ 3 ] Constable Blanche was conducting a road check in Williams Lake, BC with Constable Champagne on that date. [ 4 ] After stopping Mr.

Gelowitz who was the sole occupant of the vehicle, Constable Blanche noticed a fresh odour of green marijuana, that is marijuana that has not been smoked, while speaking to Mr. Gelowitz. [ 5 ] When questioned about the smell, Mr. Gelowitz voluntarily produced a small sandwich plastic bag of marijuana from the driver’s side door and gave it to Constable Blanche. It is not disputed that the bag did in fact contain marijuana as I understand the submissions from counsel. [ 6 ] Constable Blanche then arrested Mr. Gelowitz for possession of marijuana about 21:12 hours and advised Mr.

Gelowitz to stay in his vehicle while she went to run police checks from her police vehicle. She also advised Mr. Gelowitz that he would receive a fine for not displaying an “N” on his vehicle. [ 7 ] Constable Blanche advised her partner Constable Champagne that she had arrested Mr. Gelowitz for possession of marijuana. [ 8 ] The grounds for the arrest for the possession of marijuana are not being challenged by Mr. Gelowitz. [ 9 ] Constable Champagne then approached the driver’s side door where Mr.

Gelowitz was waiting to talk to him and tell him he was still under arrest. [ 10 ] Constable Champagne noted that the odour of green marijuana was still in the air. [ 11 ] Constable Champagne then escorted Mr. Gelowitz back to the police vehicle of Constable Blanche. [ 12 ] Constable Champagne then walked back to the Green Ford Explorer and conducted a warrantless search of the vehicle. Both parties are in agreement that this was a warrantless search.

It is not disputed that the officer had reasonable and probable grounds to search the vehicle for marijuana. [ 13 ] During the search of the vehicle for marijuana, Constable Champagne said text messages came up on a cell phone on the console which he read. [ 14 ] During the search of the vehicle, Constable Champagne testified that he was not under the impression that there was drug trafficking involved initially.

However, during the vehicle search, when he considered the marijuana, the fact that in his experience people will voluntarily hand over a bag of drugs in order to hide other stashes of drugs, and the way that the money was folded in the wallet combined with the text messages that appeared, he then formed the opinion that drug trafficking was involved. The text messages in Constable Champagne’s mind were related to trafficking of marijuana not initially but as he read the text messages. [ 15 ] No further drugs were found in the vehicle. [ 16 ] It is admitted that the cell phone in the vehicle belonged to Mr.

Gelowitz. [ 17 ] After Constable Champagne conducted the search of the vehicle, both officers met at the back trunk area of Constable Blanche’s police vehicle where the police exhibit bags were located. [ 18 ] Constable Champagne had a wallet with $1,956.00 worth of cash in it and a cell phone seized from the vehicle. [ 19 ] There both officers observed the cell phone which had messages lighting up on the edge of the trunk at the back of the police vehicle. [ 20 ] Constable Blanche’s testimony was that she did not touch the cell phone during this time frame. [ 21 ] Constable Champagne took photos of the cell phone messages that were popping up on the cell phone.

He stated that he took no notes of the cell phone messages but he took photos of the text messages to document exactly what he was reading. [ 22 ] Constable Champagne testified that he pushed a button at the bottom of the cell phone to take photos of the cell phone messages. [ 23 ] There were four photographs that were taken by Constable Champagne of the text messages on pages 14 and 15 of Exhibit One: (

i) Jordyn Johnson texts “Give ya an extra 20 tomorrow” and Nick Garysfriend “Where are ya” (ii) Nick Garysfriend “where are ya” and a text from Jordyn Johnson “hey dom it’s jorydn, do you mind dropping another half off… Pay you tomorrow?? Not in the state of mind to drive to bank…if not …” (iii) Jordyn Johnson “missed call” Brendan Powell “you get lost? lol” Jordyn Johnson “Give ya an extra 20 tomorrow” Nick

Garysfriend “Where are ya” (iv) Cavan+ “Hey you busy?” Jordyn Johnson “Extra 30?? Just too drunk and stuff to leave house to get cash. I’m sorry…” JordynJohnson “Missed call” [24] Constable Champagne testified that he believed but was not sure that photos (

i) and (ii) were taken inside the vehicle of Mr.Gelowitz and two photos, that is (iii) and (iv), were taken at the trunk of the police vehicle of Constable Blanche. [25] Mr. Gelowitz was placed in the back of Constable Blanche’s vehicle and she arrested Mr.

Gelowitz for the purpose oftrafficking marijuana and read him his rights about 21:20 hours. [26] The cell phone and wallet were subsequently placed in exhibit bags in the trunk of the police vehicle and the time stamp on theexhibit bag is 21:20 hours. [27] There were no further photos taken by the RCMP of the text messages on June 5, 2014. [28] Constable Blanche and/or Constable Champagne offered to Mr. Gelowitz that his vehicle could be moved from the road sideand he chose to move his vehicle into the church parking lot at 21:40 hours. [29] As Mr.

Gelowitz was leaving the back of the police vehicle, another bag of marijuana fell from his pant leg area. [30] At 21:50 hours, Mr. Gelowitz was then transported to Williams Lake RCMP detachment where he was fingerprinted, given anopportunity to speak to a lawyer, and provided a warned police statement and then released with a promise to appear at a future courtdate. [31] After Mr.

Gelowitz had been released, the police applied later in June of 2014 for a warrant to search the cell phone which is notthe subject of this initial voir dire but, dependant on this court’s ruling on this initial issue, may become contested at a later stage. [32] On June 23, 2014, the search warrant was granted for the following day, June 24, 2014.

More text messages were found on thecell phone during that later search and were photographed. [33] It is disputed between the parties whether in fact the RCMP conducted a search of the cell phone or not on June 5, 2014 as thetext messages were popping up on the display of the cell phone. [34] Mr. Gelowitz has brought an application that the warrantless search of the cell phone violated his rights under

Section 8 of theCanadian Charter of Rights and Freedoms. DEFENCE SUBMISSIONS [35] Defence argues that Constable Champagne conducted a warrantless search of the cell phone. [36] Defence counsel submits that the search of the cell phone did not meet the requirements as set out in R. v. Fearon, 2014 SCC 77(“Fearon”). [37] Further Mr. Gelowitz claims that the plain view doctrine does not apply to cell phones, that the expectation of privacy is verydifferent. [38] Mr.

Gelowitz claims that when the officer stops searching the vehicle for marijuana, and takes the time to read the cell phonetext messages, he has made a choice to do so and it then becomes a search of the cell phone. The arguments are that clearly there was nomarijuana “hidden” in the cell phone and thus was a step beyond what the search was for, that is further evidence of marijuana. [39] Mr. Gelowitz submits that this was not a search incidental to arrest and that was not met here as the public was not at risk, norwas officer safety an issue. [40] Mr.

Gelowitz submits that this was not a search incidental to arrest as that test that was not met here as the public was not atrisk, nor was officer safety an issue. [41] Mr. Gelowitz emphasized the lack of police notes while searching the cell phone as per the mandatory requirements in Fearon. [42] Finally in closing Mr. Gelowitz stressed the seriousness of this Charter breach.

CROWN SUBMISSIONS [43] Crown counsel argued that Fearon did not apply as there was no search of the cell phone and therefore that case is notapplicable. [44] If the court finds that Fearon does apply, Crown counsel concedes the requirements are not met. [45] As per R. v. Jones, 2011 ONCA 632 (“Jones”) the applicant must show that a breach of his Charter rights has occurred. [46] Crown submits that the four criteria in Jones have been met for the plain view doctrine: (

a) Constable Champagne was there lawfully and it was a lawful arrest; (

b) the search of the vehicle was related to the charge of marijuana which then became a marijuana trafficking charge which is

evidence is immediately apparent as a criminal offence; (

c) the plain view doctrine applies despite the high privacy interests at stake and officers are not required to turn a blind eye toevidence which meets the test that it must be discovered inadvertently. Constable Champagne was searching the vehicle when the textmessages were brought to his attention by the sound of the text messages; (

d) a seizure power was used here and not a search power as the officers seized the phone and then applied for a warrant to searchthe phone. [47] Crown further argues that even if I do find that there was a breach of Mr. Gelowitz’s charter rights that the three criteria havenot been met as per the SCC decision in Grant, and accordingly the evidence should not be excluded. Was there a search of the cell phone or not? [48] I conclude that yes there was a search of the cell phone. In coming to my determination, I find the case law of R. v.Childerhose, 2014 BCPC 323 (“Childerhose”) to be instructive.

The facts of Childerhose are different; however, they relate to cell phonesearches at paragraphs 14 - 17: [14] Before examining that issue more broadly, I should determine whether the search of the cell phone was a cursory search or amore in-depth search. [15] Defence counsel argues that the search conducted by Cst. Nugent of the cell phone was more than cursory. The periodsearched covers July 6th to July 25th, 2012 and a search was done not only at the Pineview house, but also at the police station. The textreviewed also contained some personal information. [16] In my view, Cst.

Nugent's search of the cell phone is cursory in nature. There is no forensic analysis or "data dump" of the cellphone. Indeed, Cst. Nugent's viewing of the cell phone all occurs in one day, albeit the search is conducted in two locations. Furthermore, Cst. Nugent is primarily viewing only two text streams between the cell phone user and two other persons. The texts arenot intensely personal and the subject matter is often drug-related. [17] I also agree with Federal Crown that the search of the cell phone here involved just a few swipes of the finger.

The officerwould have clicked on the message icon, he picked out two text streams and he scrolled back for, at most, a three-week period. Theremay have been some photographs and/or videos, but this cell phone was not password protected. [49] In the Childerhose decision, the court found that the “search of the cell phone here involved just a few swipes of the finger.” Likewise from what I have heard, Constable Champagne only used a few swipes of the finger and pressing the button at the bottom ofthe cell phone. Yet in that Childerhose decision, that constituted a search.

The court there was careful to distinguish between a cursorysearch and a more in depth search which might involve a so called “data dump.” Like Constable Nugent in the Childerhose decision,here Constable Champagne viewed text messages in one day, and like the court in the Childerhose decision, I find that the texts are notintensely personal and the subject matter could be said to be drug related.

Therefore I find that the use of the cell phone by ConstableChampagne does fall into what is called a cell phone search. [50] I reject the Crown submission that the four criteria in Jones have been met with respect to the plain view doctrine at paragraph56. First, it has been conceded that there was a lawful arrest for the possession of marijuana here. But with respect to the secondprinciple in Jones, the nature of the evidence must be immediately apparent as constituting a criminal offence - I am not persuaded thatthe presence of a cell phone constituted a criminal offence.

Additionally, it was only after the cell phone of Mr. Gelowitz was searchedthat the offence of possession of marijuana changed according to the testimony of Constable Champagne to an offence of trafficking inmarijuana - that is the text messages on the cell phone was one of the factors that led to the formulation of the opinion in ConstableChampagne’s mind that trafficking was in fact occurring.

With respect to the inadvertent discovery, I am convinced that this third factorin Jones was present as Constable Champagne discovered the cell phone while searching the vehicle not with the intention of searchingand seizing the cell phone. With respect to the last criteria in Jones, that the plain view doctrine confers a seizure power not a searchpower - I am not convinced by crown counsel’s arguments. Here Constable Champagne could have chosen to seize the cell phone at thescene but instead he made a decision to look at the cell phone messages thereby searching the cell phone.

Did the police violate the accuseds’ s. 8 Charter rights when they seized and went through the cell phone? [51]

Section 8 of the Charter provides: 8 Everyone has the right to be secure against unreasonable search and seizure. [52] The police search of Mr. Gelowitz’s cell phone was a warrantless search. Warrantless searches are prima facie unreasonableand a violation of s. 8 of the Charter unless the Crown can establish the reasonableness of the search on a balance of probabilities see R.v. Caslake, (SCC), [1998] 1 SCR 51 at para 11 [Caslake]. [53] Crown counsel argued that R. v.

Grunwald, 2010 BCCA 288 (“Grunwald”) applies here specifically at para 48: A police officer is not required to avert his eyes when he comes across something suspicious that is unrelated to the investigation he ispursuing.

In the circumstances of this case, where the smell of marihuana was obvious and the back of the truck was open topublic view, Constable Mulrooney was entitled to look through the canopy window into the back of the truck. [54] I am not persuaded by the Grunwald case as the privacy interests in a cell phone as opposed to the back of a truck are verydifferent as the Supreme Court of Canada makes clear in Fearon. Further, in R. v. Millett, 2017 ABQB 9, Madam Justice Veit finds atparagraph 16:

With respect, I do not accept the Crown’s contention that applying the Fearon test in the circumstances here would require the police to‘avert their eyes.’ On the contrary, in order to access the information tendered, the police had to depress the ‘open’ button and scroll upthe screen. [55] Likewise here Constable Champagne gave evidence that he had to depress a button on the cell phone and scroll up or down thescreen in order to take photographs of the text messages. [56] Defence counsel argued that R. v. Pelucco, 2015 BCCA 370 (“Pelucco”) applies here.

I have distinguished Pelucco as thecourts held that the cell phone was found after an unlawful search of a vehicle and that there was no lawful basis for the arrest of Mr.Guray (paragraph 4 of Pelucco), which is not the case before us as it was not contested that there was a lawful arrest and a lawful searchof the vehicle for possession of marijuana. As well, Mr. Pelucco was the originator of the text messages and not the recipient and thiscan change the privacy interests in cell phone text messages [see Pelucco at para 66] and in this case, Mr. Gelowitz is the recipient of thetext messages.

Finally in Pelucco, the police obtained the cell phone and used the cell phone to send text messages, and proposed ameeting with Mr. Pelucco for the purposes of a drug transaction [see paragraph 10 of Pelucco] which is clearly not the case involvingMr. Gelowitz where the police officer viewed the text messages in a cursory fashion. [57] A well-recognized principle is that the police may conduct warrantless searches incidental to arrest see Cloutier. v.

Langlois, (SCC), [1990] 1 SCR 158. [58] The Supreme Court of Canada in Fearon, indicated that police can search a cell phone incidental to an arrest provided fourconditions are met, at paragraph 83:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct thesearch, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (

a) Protecting the police, the accused, or the public; (

b) Preserving evidence; or (

c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantlyhampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched. [59] I will now apply this legal framework to the facts of the present case. Fearon Analysis [60] First, with respect to the criteria that the arrest was lawful. The accused did not dispute that the arrest was lawful for thepossession of marijuana. [61] Second, I examine whether the search is truly incidental to the arrest and if the police have a reason based on a valid lawenforcement purpose to conduct the search, and if that reason is objectively reasonable.

The SCC ruled at paragraph 25 of the Fearoncase that: I turn finally to R. v. Nolet, 2010 SCC 24 , [2010] 1 S.C.R. 851. One of the issues was whether the search of a vehicle sometwo hours after the driver’s arrest for possession of the proceeds of crime was lawful. The Court unanimously upheld the legality of thesearch as being incidental to the accused’s lawful arrest.

Binnie J. reiterated the important point made in Caslake and Golden that asearch is properly incidental to arrest when “the police attempt to ‘achieve some valid purpose connected to the arrest’ including‘ensuring the safety of the police and the public, the protection of evidence from destruction at the hands of the arrestee or others, andthe discovery of evidence . . .’”: para. 49 (emphasis deleted), quoting Caslake, at para. 19. As Binnie J. put it, “[t]he importantconsideration is the link between the location and purpose of the search and the grounds for the arrest”: para. 49.

He repeated thepropositions, settled in other cases, that, first, reasonable and probable grounds are not required, and second, the basis of the warrantlesssearch is not exigent circumstances, but connection or relatedness to the crime for which the suspect has been arrested: paras. 51-52. [62] Of particular importance to this case is paragraph 48 of the Fearon case where the Supreme Court of Canada explicitly statedthat with respect to the drug trade, cell phones play an important law enforcement objective: Beyond the facts of this case, there are other types of situations in which cell phone searches conducted incidental to a lawful arrest willserve important law enforcement objectives, including public safety.

Cell phones are used to facilitate criminal activity. For example,cell phones “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street”: Howell, atpara. 39. Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locatingand preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement.

Anindividual may be a “scout” for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for “backup” to help resist law enforcement officers: see, e.g., United States v. Santillan, 571 F.Supp.2d 1093 (D. Ariz. 2008), at pp. 1097-98.

Insuch situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape ordispose of the drugs and reveal the need to warn officers of possible impending danger. (emphasis added) [63] I find that the search of the cell phone by Constable Champagne was for a valid purpose connected to the arrest of Mr.Gelowitz. That is due to the law enforcement objectives by the police and public safety where the drug trade is involved. I note that in

Fearon, at paragraph 80, that “cell phone searches are not routinely permitted simply for the purpose of discovering additionalevidence.” Here as noted, there is an important law enforcement objective when the drug trade is involved and there is a lawful arrest ofan accused person. [64] With respect to the third factor, the nature and the extent of the search are tailored to the purpose of the search. I find paragraph76 in Fearon to be of importance here: First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted.

In other words, it is not enoughthat a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on thecell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, evenwhen a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and thecall log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which promptexamination of the device is permitted.

But these are not rules, and other searches may in some circumstances be justified. The test iswhether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphraseCaslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25. [65] Here I find that this step was met as Constable Champagne only viewed recently sent text messages. Constable Champagne wasable to explain what he searched on the day in question. His explanation for why he was reading the text messages did fall shorthowever.

However, in considering the totality of the situation, I find that the nature and extent of the cell phone search conducted byConstable Champagne fell within the parameters of being tailored to the arrest of possession for marijuana. [66] Fourth, the requirement that the police take detailed notes of what they have examined on the device and how it was searched. [67] The Supreme Court of Canada found at paragraph 82 that note taking by police officers was critical: Finally, officers must make detailed notes of what they have examined on the cell phone.

The Court encouraged this sort of notekeeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches:Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant norreasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposedas a matter of constitutional imperative.

The record should generally include the applications searched, the extent of the search, the timeof the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incidentto arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective.

Inaddition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whethertheir conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest. [68] I find that Constable Champagne, while he testified that taking photographs of the cell phone text messages were to ensure anaccurate record of what he saw, failed the last step of this analysis.

In particular, although there are photographs as to what was searched,there were no notes on how it was searched, who did the searching or the purpose of the search or the timing and duration of thesearches. [69] In

summary, I find that after reviewing this case with respect to the Fearon analysis, I find that there was a breach of the section8 Charter rights of Mr. Gelowitz.

If there has been a Charter breach should the evidence be excluded? [70] Section 24(2) of the Charter provides: 24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed bythis Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, that the admission of it in theproceedings would bring the administration of justice into disrepute. [71] The party seeking to have evidence excluded bears the burden of proving its exclusion is required on an assessment andbalancing of the evidence in light of the following three factors set out in R. v.

Grant, 2009 SCC 32 , [2009] 2 SCR 353 atparagraph 71. (

i) The seriousness of the Charter-infringing state conduct [72] Here I find that Constable Champagne held a view that he was lawfully entitled to look at the cell phone screen. Afterreviewing not some text messages, and no other information on the screen, Constable Champagne and Constable Blanche applied for asearch warrant to search the phone. They believed their actions were in accordance with the Charter.

I find that, as did the SupremeCourt of Canada in Fearon as well as the trial court judge in Fearon that it was not conduct on the serious end of the scale and this factorweighs in favour of admission of the evidence. (ii) The impact of the breach on Charter-protected interests [73] The Supreme Court of Canada in Fearon held at paragraph 51 that: It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different inboth nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60 , [2013] 3 S.C.R. 657, at paras. 38 and 40-45.

It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined inVu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate detailsof the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinksthat it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras.41-44.

[74] Thus it follows that Mr. Gelowitz had very important privacy interests in his cell phone. [75] The Supreme Court of Canada held at paragraph 54 of Fearon that not every search is a significant intrusion. Specifically theygave an example in the middle of paragraph 54 that: Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and thephoto of the handgun. The invasion of privacy in those circumstances would, in my view, be minimal.

So we must keep in mind that thereal issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cellphones. [76] Likewise in this case, I find that the reading of some text messages by Constable Champagne constituted a minimal invasion ofMr. Gelowitz’s privacy. [77] Further, the Supreme Court of Canada found at paragraph 56 that: Second, we should bear in mind that a person who has been lawfully arrested has a lower reasonable expectation of privacy than personsnot under lawful arrest: Beare, at p. 413. [78] Here Mr.

Gelowitz was lawfully arrested at the time of the search of the cell phone and therefore had a lower reasonableexpectation of privacy than persons not under lawful arrest. (iii) Society’s interest in adjudication on the merits [79] The electronic contents of a cell phone are inherently highly reliable, cogent and central to the Crown’s case. [80] Drug trafficking is a serious crime and society’s interest would best be served by having the evidence from the cell phoneadmitted. [81] In particular, at para. 17 of the Fearon case, the Supreme Court of Canada stated: The Court affirmed the common law power of the police to search incident to arrest in R. v.

Beare, (SCC), [1988] 2S.C.R. 387. La Forest J., for the Court, noted that the search incident to arrest power exists because of the need “to arm the police withadequate and reasonable powers for the investigation of crime” and that “[p]romptitude and facility in the identification and thediscovery of indicia of guilt or innocence are of great importance in criminal investigations”: p. 404; see also R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, at p. 1146.

Thus, the need for the police to be able to promptly pursue their investigation upon makinga lawful arrest is an important consideration underlying the power to search incident to arrest. [82] In conclusion, in balancing these factors, I conclude that the exclusion of this evidence would undermine the truth seekingfunction of the justice system and I therefore order that the text messages from the cell phone search be admitted into evidence in thetrial proper. ________________________________ K. L. Whonnock Provincial Court Judge