Kevin Fearon Appellant v. Her Majesty The Queen, 2014 SCC 77

SUPREME COURT OF CANADA Citation: R. v.

Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 Date: 20141211 Docket: 35298 Between: Kevin Fearon Appellant and Her Majesty The Queen Respondent - and - Director of Public Prosecutions of Canada, Attorney General of Quebec, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, British Columbia Civil Liberties Association, Criminal Trial Lawyers’ Association (Alberta), Canadian Civil Liberties Association, Canadian Association of Chiefs of Police and Criminal Lawyers’ Association Interveners Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

Reasons for Judgment: (paras. 1 to 99) Dissenting Reasons: (paras. 100 to 198) Cromwell J. (McLachlin C.J. and Moldaver and Wagner JJ. concurring) Karakatsanis J. (LeBel and Abella JJ. concurring) r. v. fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 Kevin Fearon Appellant v. Her Majesty The Queen Respondent and Director of Public Prosecutions of Canada, Attorney General of Quebec,

Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, British Columbia Civil Liberties Association, Criminal Trial Lawyers’ Association (Alberta), Canadian Civil Liberties Association, Canadian Association of Chiefs of Police and Criminal Lawyers’ Association Interveners Indexed as: R. v. Fearon 2014 SCC 77 File No.: 35298. 2014: May 23; 2014: December 11.

Present: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Search and seizure — Search incident to arrest — Cell phone found on accused and searched without warrant — Text message and photos on cell phone introduced as evidence at trial — Whether general common law framework for searches incident to arrest needs to be modified in case of cell phone searches incident to arrest — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — If so, whether evidence discovered in search should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .

Police — Powers — Search incident to arrest — Warrantless search of cell phone — Text message and photos on cell phone introduced as evidence at trial of accused — Whether common law police power to search incident to arrest permits cell phone searches — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — Canadian Charter of Rights and Freedoms, s. 8 . 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 jewlery 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 (LeBel, Abella and Karakatsanis JJ. dissenting): The appeal should be dismissed.

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 reasonableexpectations of privacy in personal digital devices. The majority’s proposed modifications generate problems of impracticality, policeuncertainty, and increased after-the-fact litigation. And while detailed note-taking may be desirable, it may prove to be an impracticalrequirement, and it is not an adequate remedy to what would be an extraordinary search power.

Fundamentally, the police are not in thebest position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in thesearch 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 the Charter.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 particularlyobjectionable, given that the police acted in good faith, and the evidence is reliable; however, the high privacy interest individuals havein their electronic devices tips the balance in favour of exclusion. Unwarranted searches undermine the public’s confidence that personalcommunications, ideas and beliefs will be protected on their digital devices. This is particularly important given the increasing use andubiquity 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 strongprivacy interest would tend to bring the administration of justice into disrepute. Cases Cited By Cromwell J. Distinguished: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Stillman, (SCC), [1997] 1 S.C.R.607; referred to: R. v. Giles, 2007 BCSC 1147 ; R. v. Otchere-Badu, 2010 ONSC 1059 ; Young v. Canada, ; R. v. Howell, 2011 NSSC 284, 313 N.S.R. (2d) 4; R. v.

Franko, 2012 ABQB 282, 541 A.R. 23; R. v. Cater, 2014 NSCA74 ; R. v. D’Annunzio (2010), 224 C.R.R. (2d) 221; R. v. Polius (2009), 196 C.R.R. (2d) 288; R. v. Hiscoe, 2013 NSCA 48, 328N.S.R. (2d) 381; R. v. Mann, 2014 BCCA 231, 310 C.C.C. (3d) 143; R. v. Liew, 2012 ONSC 1826 ; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Beare, (SCC),[1988] 2 S.C.R. 387; R. v. Debot, (SCC), [1989] 2 S.C.R. 1140; R. v. Dyment, (SCC), [1988] 2 S.C.R.417; R. v.

Pohoretsky, (SCC), [1987] 1 S.C.R. 945; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; United States v.Santillan, 571 F.Supp.2d 1093 (2008); R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Khan, 2013 ONSC 4587, 287 C.R.R. (2d) 192;R. v. Rochwell, 2012 ONSC 5594, 268 C.R.R. (2d) 283; Riley v. California, 134 S. Ct. 2473 (2014); R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Finnikin, ; R. v. Côté, 2011 SCC 46,[2011] 3 S.C.R. 215. By Karakatsanis J. (dissenting) R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Duarte, (SCC),[1990] 1 S.C.R. 30; United States v. White, 401 U.S. 745 (1971); Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R.v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Clayton, 2007 SCC 32,[2007] 2 S.C.R. 725; Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Feeney, (SCC), [1997] 2S.C.R. 13; R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743; R. v. Stillman, (SCC), [1997] 1 S.C.R.607; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v.

White, 2007 ONCA 318, 85 O.R. (3d) 407; R. v. TELUS Communications Co.,2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Polius (2009), 196 C.R.R. (2d) 288; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Kelsy,2011 ONCA 605, 283 O.A.C. 201; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Grant, (SCC), [1993] 3 S.C.R.223; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 8, 24(2). Criminal Code, R.S.C. 1985, c. C-46, ss. 487(1)(b), 487.11, 529.3.

Authors Cited Austin, Lisa. “Privacy and the Question of Technology” (2003), 22 Law & Phil. 119. Austin, Lisa M. “Control Yourself, or at Least Your Core Self” (2010), 30 Bull. Sci. Tech. & Soc. 26. Brown, Patrick. “Searches of Cell Phones Incident to Arrest: Overview of the Law as It Stands and a New Path Forward” (2014), 27Harv. J.L. & Tech. 563. Fontana, James A. The Law of Search and Seizure in Canada, 3rd ed. Toronto: Butterworths, 1992. Fontana, James A., and David Keeshan. The Law of Search and Seizure in Canada, 8th ed. Markham, Ont.: LexisNexis, 2010.

Nagel, Thomas. “Concealment and Exposure” (1998), 27 Phil. & Publ. Aff. 3. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Armstrong and Watt JJ.A.), 2013 ONCA 106, 114O.R. (3d) 81, 302 O.A.C. 284, 296 C.C.C. (3d) 331, 100 C.R. (6th) 296, 277 C.R.R. (2d) 126, [2013] O.J. No. 704 (QL), 2013CarswellOnt 1703, affirming the accused’s conviction for armed robbery and related offences. Appeal dismissed, LeBel, Abella andKarakatsanis JJ. dissenting.

Sam Goldstein and Shelley Flam, for the appellant. Randy Schwartz, for the respondent. Kevin Wilson and W. Paul Riley, for the intervener the Director of Public Prosecutions of Canada. Dominique A. Jobin, for the intervener the Attorney General of Quebec. Jolaine Antonio, for the intervener the Attorney General of Alberta. Written submissions only by Tamir Israel, for the intervener the Samuelson-Glushko Canadian Internet Policy and PublicInterest Clinic. Gerald Chan and Nader R. Hasan, for the intervener the British Columbia Civil Liberties Association. Dane F. Bullerwell and Jeffrey W.

Beedell, for the intervener the Criminal Trial Lawyers’ Association (Alberta). Matthew Milne-Smith, for the intervener the Canadian Civil Liberties Association. Leonard T. Doust, Q.C., and Bronson Toy, for the intervener the Canadian Association of Chiefs of Police. Written submissions only by Susan M. Chapman, Jennifer Micallef and Kristen Allen, for the intervener the CriminalLawyers’ Association. The judgment of McLachlin C.J. and Cromwell, Moldaver and Wagner JJ. was delivered by Cromwell J. — I. Introduction [1] The police have a common law power to search incident to a lawful arrest.

Does this power permit the search ofcell phones and similar devices found on the suspect? That is the main question raised by this appeal. [2] Canadian courts have so far not provided a consistent answer. At least four approaches have emerged. The first is tohold that the power to search incident to arrest generally includes the power to search cell phones, provided that the search is trulyincidental to the arrest: R. v. Giles, 2007 BCSC 1147 ; R. v. Otchere-Badu, 2010 ONSC 1059 ; Young v. Canada, (Nfld. Prov. Ct.); R. v. Howell, 2011 NSSC 284, 313 N.S.R. (2d) 4; R. v.

Franko, 2012 ABQB 282, 541 A.R. 23; R. v.Cater, 2014 NSCA 74 ; R. v. D’Annunzio (2010), 224 C.R.R. (2d) 221 (Ont. S.C.J.). The second view is that “cursory” searchesare permitted: R. v. Polius (2009), 196 C.R.R. (2d) 288 (Ont. S.C.J.). A third is that thorough “data-dump” searches are not permittedincident to arrest: R. v. Hiscoe, 2013 NSCA 48, 328 N.S.R. (2d) 381; R. v. Mann, 2014 BCCA 231, 310 C.C.C. (3d) 143. Finally, it hasalso been held that searches of cell phones incident to arrest are not permitted except in exigent circumstances, in which a “cursory”search is permissible: R. v. Liew, 2012 ONSC 1826 .

These divergent results underline both the difficulty of the question and theneed for a more consistent approach. [3] In order to resolve the issue, we must strike a balance between the demands of effective law enforcement andeveryone’s right to be free of unreasonable searches and seizures. In short, we must identify the point at which the “public’s interest inbeing left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advanceits goals, notably those of law enforcement”: Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60. [4] In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, providedthat the search — both what is searched and how it is searched— is strictly incidental to the arrest and that the police keep detailed notesof what has been searched and why. II. Overview of the Facts, Proceedings and Issues [5] The issue on appeal concerns the admissibility at Mr. Fearon’s armed robbery trial of a draft text message and twophotos found by police on his cell phone.

The issue arises out of the investigation of a crime that has become depressingly routine. [6] Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery. The robbers grabbedsome bags, one of which was filled with jewellery, and fled in a black vehicle. The police became involved very shortly afterward and atthat point, they reasonably believed that there was a handgun on the streets and that the robbers had taken a large quantity of readily-disposable jewellery.

It was obviously important to locate the gun before it could be used again and the jewellery before it could bedisposed of or hidden. [7] The investigation quickly centred on the appellant, Kevin Fearon, and Junior Chapman. Later that same evening,police arrested both men, but had not at that point located any jewellery or the handgun. Police also quickly located the getaway vehicleand secured it, but they did not search it until a day and a half later when they had a warrant to do so. [8] When Mr. Fearon was arrested, Sgt. Hicks conducted a pat-down search incident to the arrest. He found a cellphone in Mr.

Fearon’s right front pants pocket. Police searched the phone at that time and again within less than two hours of the arrest.They found a draft text message referring to jewellery and opening with the words “We did it”. They also found a photo of a handgun andphotos of males. Police later recovered a handgun during their search of the getaway vehicle and, at trial, the judge found that it was thehandgun used in the robbery and depicted in the photo found on Mr. Fearon’s cell phone: trial judge’s oral reasons. Months later, policeapplied for and were granted a warrant to search the contents of the phone.

No new evidence was discovered.

[9] At his trial for robbery, Mr. Fearon argued that the search of his cell phone had violated s. 8 of the CanadianCharter of Rights and Freedoms and that admitting the photographs and text message into evidence would bring the administration ofjustice into disrepute. On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8 of theCharter and that the photos and text message were admissible. She convicted Mr. Fearon of robbery with a firearm and related offences. [10] The Court of Appeal unanimously dismissed Mr. Fearon’s appeal.

The court affirmed the trial judge’s conclusionthat the search incident to arrest had not violated Mr. Fearon’s s. 8 rights. [11] The appeal to this Court raises two main questions: 1. Was the search incident to arrest unreasonable and therefore contrary to s. 8 of the Charter? 2. If so, should the evidence be excluded under s. 24(2) of the Charter? III. Analysis A. First Issue: The Search Incident to Arrest

(1) The Analytical Framework [12] A search is reasonable within the meaning of s. 8 of the Charter if it is authorized by a reasonable law and isconducted reasonably: R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Caslake, (SCC),[1998] 1 S.C.R. 51, at para. 10. The main question on appeal therefore concerns the proper scope of the common law power to searchincident to arrest: is a cell phone search incident to arrest authorized by a reasonable law? [13] This question about the scope of the power to search incident to arrest cannot be answered in too categorical afashion.

As Lamer C.J. explained in Caslake, the permissible scope of a search incident to arrest turns on several different aspects of thesearch including the nature of items seized, the place of search and the time of search in relation to the time of arrest: paras. 15-16. Eachof these aspects may engage distinct considerations that cannot be addressed in very general terms. Moreover, arrests relate to manydifferent crimes and are made in many different circumstances. It follows that the permissible scope of searches incident to arrest will beaffected by the particular circumstances of the particular arrest.

The courts will rarely be able to establish any categorical limitapplicable to all arrests and all purposes incidental to them. [14] There is no question that there is a common law police power to search incident to arrest. The question here — and itis a novel one for this Court — relates to whether this power permits the particular cell phone searches in issue here.

To determine theprecise scope of this common law power, the Court must weigh the competing interests involved, particularly whether the search “isreasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for theliberty and fundamental dignity of individuals”: Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158, at pp. 181-82;Caslake, at para. 17. The Court’s task is “to delineate the scope of the common law power . . . in a way that is consistent with theCharter right to be protected against unreasonable search and seizure”: R. v.

Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 87. [15] This task may be approached in more than one way. I approach it by considering first whether the search falls withinthe existing general framework of the common law power to search incident to arrest. Having decided that it does, I go on to ask whetherthat framework must be modified so that the common law search power complies with s. 8 of the Charter in light of the particular lawenforcement and privacy interests at stake in this context. The Court followed this analytical approach in R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, and Golden, two important cases which considered whether searches incident to arrest were Chartercompliant, and it serves equally well in this case. My conclusion is that some modification of the existing common law framework isnecessary.

(2) The Common Law Police Power to Search Incident to Arrest [16] Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary powerin two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances inwhich the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed powergiven to the police so that they can pursue their investigations promptly upon making an arrest.

The power must be exercised in thepursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as thecase law puts it, truly incidental to the arrest. [17] The Court affirmed the common law power of the police to search incident to arrest in R. v. Beare, (SCC), [1988] 2 S.C.R. 387.

La Forest J., for the Court, noted that the search incident to arrest power exists because of the need “to armthe police with adequate and reasonable powers for the investigation of crime” and that “[p]romptitude and facility in the identificationand the discovery 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 uponmaking a lawful arrest is an important consideration underlying the power to search incident to arrest. [18] The power was further affirmed and explained in Cloutier, at pp. 180-81, where L’Heureux-Dubé J. summed upCanadian common law to that point: . . . it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power tosearch a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of thepolice and the accused, prevent the prisoner’s escape or provide evidence against him. [19] The Court held, in Cloutier, that a “‘frisk’ search incidental to a lawful arrest reconciles the public’s interest in theeffective and safe enforcement of the law . . . and . . . its interest in ensuring the freedom and dignity of individuals”: p. 185.

The search

“must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to thesafety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused”, and it “must not beconducted in an abusive fashion”: p. 186. [20] The Court next considered search incident to arrest in Stillman, at paras. 27-50, a case that considered whethertaking teeth impressions, hair samples and buccal swabs from a suspect after his lawful arrest for murder fell within the scope of thepower to search incident to arrest.

The Court affirmed that, in order for a search incident to arrest to be lawful, the arrest itself must belawful, the search must be an incident of that arrest, and the manner in which it is conducted must be reasonable: para. 27. Turning to thespecific issue of whether the common law power of search incident to arrest extends to the seizure of bodily substances, the Court ruledthat it did not.

Seizure of bodily substances “invades an area of personal privacy essential to the maintenance of . . . human dignity” andis “much more serious” than an intrusion into the suspect’s office or home: at para. 42, quoting with approval R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 432; see also R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945, at p. 949. Seizingbodily samples gives rise to “completely different concerns” because of the impact on a person’s bodily integrity, which may be “theultimate affront to human dignity”: para. 39.

Moreover, there is no need for prompt access to the information: there is no danger of thebodily samples disappearing, or that the suspect’s teeth impressions or DNA will change with the passage of time: para. 49. [21] That brings me to the leading case from this Court, Caslake. The case concerned an inventory search of a suspect’svehicle six hours after he was arrested for possession of narcotics. The Court concluded that the search did not fall within the scope oflawful search incident to arrest.

Lamer C.J. articulated the justification of the common law power as being the need for law enforcementauthorities to gain control of things or information, a need which outweighs the individual’s interest in privacy: para. 17. Whether thesearch is justified depends on whether the search is truly incidental to the arrest: para. 17. This means that the police must be attemptingto achieve some valid purpose connected to the arrest. That turns on what they were looking for and why.

The police must have one ofthe purposes for a valid search incident to arrest in mind when the search is conducted, and the officer conducting the search mustreasonably believe that this purpose may be served by the search. [22] This is not a standard of reasonable and probable grounds, but simply a requirement that there be some reasonablebasis for doing what the police did. For example, if the purpose of the search is to find evidence, there must be some reasonable prospectof finding evidence of the offence for which the accused is being arrested: Caslake, at paras. 19-24.

Lamer C.J. summarized the law asfollows: If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of thisdoctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that thepolice must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence,discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probablegrounds.

However, they must have had 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 do 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. [Emphasisadded; para. 25.] [23] The Court next considered search incident to arrest in Golden.

The question before the Court was whether thecommon law power to search incident to arrest includes the power to strip search (i.e. a search involving “the removal or rearrangementof some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts(in the case of a female), or undergarments”: para. 47). The Court concluded that, because of the intrusive nature of a strip search, ascompared with the frisk search in issue in Cloutier, a higher degree of justification was required.

A serious infringement of privacy andpersonal dignity was “an inevitable consequence of a strip search”: para. 99 (emphasis added).

In addition, the Court noted that stripsearches are rarely required to be done promptly given the low risk of disposal or loss of the evidence: para. 93. [24] For these reasons, strip searches will only be reasonable when they are conducted in a reasonable manner “as anincident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for thearrest” and the police “have reasonable and probable grounds for concluding that a strip search is necessary in the particularcircumstances of the arrest”: Golden, at paras. 98-99. [25] 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 vehiclesome two hours after the driver’s arrest for possession of the proceeds of crime was lawful. The Court unanimously upheld the legalityof the search as being incidental to the accused’s lawful arrest.

Binnie J. reiterated the important point made in Caslake and Golden thata search 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. [26] In light of this review, I turn to the two analytical steps. The first is whether the search here falls within the generalcommon law parameters for searches incident to arrest.

If it does, the second issue is whether, having regard to the appropriate balancebetween the need for effective law enforcement and the suspect’s privacy interests, some further restrictions must be imposed and if so,what they should be.

(3) Were the Searches Truly Incidental to a Lawful Arrest? [27] The common law framework requires that a search incident to arrest must be founded on a lawful arrest, be trulyincidental to that arrest and be conducted reasonably. In my view, the initial searches of the cell phone in this case satisfied theserequirements.

[28] Mr. Fearon was lawfully arrested for robbery, and that satisfies the first requirement. [29] There is no serious suggestion in this Court that the cell phone searches that led police to the text message and thephoto of the handgun were other than truly incidental to the arrest, or, in other words that they were not conducted in pursuit of a “validpurpose connected to the arrest”, as required by Caslake, at para. 19. To understand why, we need at this point to review the facts inmore detail. [30] Recall that, upon his arrest, Mr.

Fearon was subjected to a pat-down search that led the police to seize a cell phonefound in his pants pocket. Mr. Fearon does not complain about this search or the seizure of the phone resulting from it. Sgt. Hicks, theofficer conducting the pat-down search, had “a look through the phone”: trial judge’s ruling on cell phone search, 2010 ONCJ 645 (the “Ruling”), at para. 20. Sergeant Hicks “explained that he manipulated the keypad to the extent that he entered into differentmodes to access text messages and photographs on the phone”: para. 22.

He did not remember specifics, but believed that he saw photosof males and a photo of a gun. This occurred between the time of arrest at 9:15 p.m. and the time Mr. Fearon was placed in the police vanat 9:24 p.m. Sergeant Hicks kept custody of the phone. Shortly before 10:50 p.m., Sgt. Hicks showed the phone to the investigatingdetectives, Det. Const. Abdel-Malik and Det. Nicol at the police station. He testified that he pointed them to the photos as well as a textmessage. The message, apparently unsent, read: “We did it were the jewlery at nigga burrrrrrrrrrr”: Ruling, at para. 24.

DetectiveConstable Abdel-Malik understood this to mean “We did it” and to ask where the jewellery was.

Detective Constable Abel-Maliktestified that he looked at the phone “a little bit more” for about two minutes to see if the text message had been sent. [31] Sergeant Hicks and the two detectives inspected the contents of the phone “a few times” throughout the earlymorning following the arrest as the unfolding investigation led them to think that there could be more relevant information on it.Detective Constable Abdel-Malik “looked into the phone . . . after learning that there was a third suspect who went by the name of‘Swipes’ and that his contact number should be in the cell phone”: Ruling, at para. 25.

Officers checked “some of the phone numberscalled by Mr. Fearon to see if they led to possible associates including the then unidentified ‘Swipes’”: ibid. Sometime after 3:51 a.m.,Det. Const. Abdel-Malik got information that “Swipes’” telephone number would be in Mr. Fearon’s phone. He confirmed, however,that the main key components of what they required were the picture of the handgun and the words of the text message. [32] The police eventually obtained a warrant to search the black vehicle that they had seized and secured shortly afterthe robbery.

That search took place in the early morning hours of the second day following the robbery. The search revealed a loadedSmith & Wesson silver semi-automatic handgun which the trial judge found was the same gun shown in the cell phone picture. Thepolice also obtained a warrant some months later to search and download the contents of the cell phone. The trial judge noted that therewas no dispute that the photographs and text message originally viewed by Sgt.

Hicks were the same items obtained as a result of thesearch warrants and sought to be admitted. [33] In my view, the searches of the cell phone that lead to the discovery of the text message and the photos that theCrown introduced as evidence at trial were truly incidental to the arrest. It is clear from the record and the trial judge’s findings that thesearch was directed at public safety (locating the handgun), avoiding the loss of evidence (the stolen jewellery) and obtaining evidence ofthe crime (information linking Mr. Fearon to the robbery and locating potential accomplices). [34] At trial, Mr.

Fearon submitted that Sgt. Hicks did not have grounds to believe subjectively or reasonably that the cellphone could afford evidence prior to looking into its contents. However, the trial judge rejected this contention and found that Sgt. Hicksreasonably believed that the cell phone might contain evidence of the robbery for which Mr. Fearon had been arrested. She found: . . . Sgt. Hicks was justified in his belief that the cell phone may contain evidence relevant to the armed robbery for which Mr. Fearonwas being arrested. . . . By the time he received direction to arrest Mr.

Fearon for armed robbery at 9:15 p.m. he also knew: (1) that morethan one perpetrator committed the robbery; (2) approximately three hours had elapsed since the robbery; and (3) there was a gun orimitation gun involved in the robbery. In these circumstances, I find that there was a reasonable prospect of securing evidence of the offence for which the accused wasbeing arrested in searching the contents of the cell phone. In particular, it was reasonable for Sgt.

Hicks to believe that the arrestee, Mr.Fearon, may have had communication through the cell phone before, during or after the robbery with other perpetrators or with thirdparties. [Ruling, at paras. 43-44] [35] The trial judge’s conclusion on this point is not challenged and it is amply supported by the evidence. [36] Detective Constable Abdel-Malik testified that it was important to the investigation to know if the text message hadbeen sent to someone. The message suggested that the intended recipient knew where the jewellery was.

It was an important goal of theinvestigation to recover the stolen property, which was easy to dispose of or to hide. Thus, finding someone who knew where it waswould be important and needed to be done promptly. Detective Constable Abdel-Malik also testified that information likely to be on thecell phone such as telephone numbers related to names, calendar dates, text messages and photographs would be helpful to theinvestigation. [37] Defence counsel at trial put to Det. Const. Abdel-Malik that he could have obtained a search warrant for the cellphone as soon as Sgt.

Hicks told him about the information he had seen on the phone in his initial look at it. Detective Constable Abdel-Malik rejected this contention. He emphasized that they faced a situation in which they believed there was a handgun on the street andstolen property unaccounted for and the information on the cell phone could help them locate both promptly: I mean, we’ve got an outstanding gun, an outstanding property and now we know that this cell phone could have information that’sgoing to lead us to this property and to this gun.

So since it was definitely relevant to the investigation and as it unfolded, it--it wasrelevant, I think at that time the--right thing to do was to look through the phone and see if it would assist us with the investigation . . . . [38] Detective Nicol’s evidence was also clear and detailed about the link between the arrest and the search of the cell

phone. He referred to the need to look through the cell phone to see if there was any contact information that could lead the police to the identity of the as-yet-unidentified suspect, the jewellery, or the firearm. He was asked to explain how looking through the cell phone could help expedite finding the gun and the jewellery. His answer is instructive: Well, based on any text messages sent between them and a party assisting them in hiding or moving stolen property, that would be something I’d want to know right away so I could attempt to recover that evidence .

If there was other messages indicating locations and- -and where they went after the robbery, that would be something I’d want to know because those are places I’d want to investigate to see if there was evidence being jewellery or firearms, clothing worn by the suspects, anything left behind at those addresses would be places that we’d have to attend. You know, based on my experience, people take photographs of things they steal, places that they go, targets of their offences.

There--there’s a number of--of things that people contain on phones and I hoped that any of those items might be on that phone that we can act on and subsequently locate evidence. [Emphasis added.] [ 39 ] Detective Nicol also testified that it was important to follow up all leads immediately because they still had outstanding jewellery, a firearm and an unidentified suspect.

When he was asked in cross-examination why he thought that he did not need a warrant initially to search the cell phone, he replied: And, and [my] understanding it’s still that, um, that an investigation where I’m looking for jewellery, I’m looking for outstanding suspects, I’m looking for, um, the gun that’s outstanding, and I have concerns that that--those items might go missing, destroyed, um, and then I have a chance to recover those items, that I’m able to look through that phone and ensure that, that there’s anything there to assist my investigation at the time, I can, I can use that information. [ 40 ] He testified that his primary concerns were to recover the handgun and the jewellery.

The jewellery, he noted, was “evidence, it’s property . . . that, um, they can move very quickly, be sold very quickly, hidden, any, any number of things that can happen to it and you have to act quickly in order to recover it”. [ 41 ] There is no basis to disturb the judge’s finding that the searches of the cell phone were for valid law enforcement objectives and were appropriately linked to the offence for which Mr. Fearon had been lawfully arrested. The searches were, in short, truly incidental to Mr.

Fearon’s arrest for robbery. [ 42 ] The judge did not explicitly address the third element of the test: whether the search was conducted reasonably. However, she did find the examination of the phone at the arrest scene was “brief and cursory” and there was “no suggestion that this was an expansive or abusive search”: Ruling, at para. 44. She also noted that it was common ground that the evidence presented by the Crown from the phone — the photos and the text message — was that originally found by Sgt. Hicks in his initial search of the phone and within about an hour and a half of the arrest.

I conclude that the third element of the test was satisfied under the general framework for search incident to arrest. However, as I will explain, my view is that some revision of the general framework is necessary in relation to searches of cell phones incident to arrest. [ 43 ] I therefore conclude that the searches of the cell phone resulting in finding the photos and text message fell within the scope of the common law police power, subject to assessing whether the common law’s general framework must be modified in order to make it compliant with s. 8 of the Charter .

(4) Does the Common Law Test Need to Be Modified in Light of the Charter ? [ 44 ] As Stillman , Caslake and Golden illustrate, the common law police power to search incident to arrest must be defined and applied in a way that gives effect to the right to be free of unreasonable searches and seizures. In both Stillman and Golden , the Court modified the common law power in relation to particularly invasive types of searches in order to make that power consistent with s. 8 of the Charter .

What is required is an assessment of the importance of the legitimate law enforcement objectives served by the search and of the nature and extent of the infringement of the detainee’s reasonable expectation of privacy. [ 45 ] The Court has repeatedly affirmed that, in general, the common law power to search incident to arrest permits reasonable searches within the meaning of s. 8 of the Charter : Cloutier , at p. 182; Stillman , at para. 27 ; Caslake , at paras. 12 and 14 ; Golden , at paras. 44, 49, 75 and 104 ; Nolet , at paras. 49 and 52 . We should not pass too quickly over this fundamental point.

As I have explained, this common law power is extraordinary because it requires 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.

As was said in Caslake , in the context of arrest, the need for police “to gain control of things or information . . . outweighs the individual’s interest in privacy”: para. 17. [ 46 ] The record shows how a prompt search of a suspect’s cell phone may serve important law enforcement objectives. The police were on the scene of a violent crime — the robbery — very promptly.

They faced a situation in which there was weak identification of the perpetrators, the subject matter of the crime — the stolen jewellery — was easily hidden or otherwise disposed of, there was an indication that there may have been more people involved than the two persons observed at the scene, there were reports that a handgun had been used, and that handgun had not been located. The police were justified in their belief that the cell phone could contain evidence relevant to the armed robbery.

The record also justifies the conclusion that the search served the purposes of public safety and preventing the loss of evidence because it might lead the police to the firearm and the jewellery. [ 47 ] I conclude that the cell phone search incident to arrest in this case served important law enforcement objectives. [ 48 ] Beyond the facts of this case, there are other types of situations in which cell phone searches conducted incidental to a lawful arrest will serve 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 , at para. 39 . Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement.

An individual may be a “scout” for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for “back up” 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 . In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger. [ 49 ] I conclude that prompt cell phone searches incidental to arrest may serve important law enforcement objectives. The evidence in this case shows why prompt follow-up of leads may be necessary and how the search of a cell phone may assist those efforts.

In this respect, cell phone searches are unlike the taking of dental impressions, buccal swabs and hair samples discussed in Stillman . There, the Court noted that there were no relevant considerations of urgency supporting the extension of the power to search incident to arrest to these procedures: there was no risk that the accused’s teeth or DNA would be lost or destroyed if the procedures were not carried out promptly: para. 49.

And, of course, such searches, unlike cell phone searches, are very unlikely to allow police to identify and mitigate risks to public safety or to assist them to preserve evidence that might otherwise be lost or destroyed.

Similarly, in Golden , while the strip search incident to arrest was aimed at the discovery of illegal drugs on the accused’s person, there was little reason to think that the search needed to be performed promptly upon arrest in order to fulfill this purpose: paras. 92-93. [ 50 ] Having considered the law enforcement objectives potentially at stake, we must look at the individual and societal interests in privacy and the extent to which a cell phone search incident to arrest interferes with those interests. [ 51 ] It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both 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 in Vu , computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that 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. [ 52 ] We should not differentiate among different cellular devices based on their particular capacities when setting the general framework for the search power.

So, for example, the same general framework for determining the legality of the search incident to arrest should apply to the relatively unsophisticated cellular telephone in issue in this case as it would to other devices that are the equivalent of computers: see Vu , at para. 38 . [ 53 ] I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected: see, e.g., Court of Appeal judgment, 2013 ONCA 106 , 114 O.R. (3d) 81, at paras. 73 and 75 ; Ruling, at para. 49; R. v.

Khan , 2013 ONSC 4587 , 287 C.R.R. (2d) 192, at para. 18 ; Hiscoe , at paras. 80-81 . I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone: see, e.g., R. v. Rochwell , 2012 ONSC 5594 , 268 C.R.R. (2d) 283, at para. 54 . Cell phones — locked or unlocked — engage significant privacy interests.

But we must also keep this point in perspective. [ 54 ] First, while cell phone searches — especially searches of “smart phones”, which are the functional equivalent of computers — may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion. Suppose, for example, that in the course of the search in this case, the police had looked only at the unsent text message and the photo of the handgun. The invasion of privacy in those circumstances would, in my view, be minimal.

So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will , result from law enforcement searches of cell phones. [ 55 ] In this respect, a cell phone search is completely different from the seizure of bodily samples in Stillman and the strip search in Golden . Such searches are invariably and inherently very great invasions of privacy and are, in addition, a significant affront to human dignity.

That cannot be said of cell phone searches incident to arrest. [ 56 ] Second, we should bear in mind that a person who has been lawfully arrested has a lower reasonable expectation of privacy than persons not under lawful arrest: Beare , at p. 413. [ 57 ] Third, the common law requirement that the search be truly incidental to a lawful arrest imposes some meaningful limits on the scope of a cell phone search. The search must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested.

This requirement prevents routine browsing through a cell phone in an unfocussed way. [ 58 ] All of that said, 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. As a result, my view is that the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest.

In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted. The case law suggests that there are three main approaches to making this sort of modification: a categorical prohibition, the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances.

I will explain why, in my view, none of these approaches is appropriate here and then outline the approach I would adopt. (

a) Categorical Prohibition [ 59 ] Stillman excluded the non-consensual seizure of bodily samples from the scope of the power to search incident to arrest. The Court took this categorical approach for two reasons. First, seizures of bodily samples give rise to “completely different concerns” than other types of searches: they impact on a person’s bodily integrity, which may be, as Cory J. put it, “the ultimate affront to human dignity”: para. 39.

Second, the Court noted that there was no risk that evidence would be lost if it were not obtained immediately: there was no risk of the teeth impressions or the DNA in hair follicles changing or being destroyed: para. 49. Thus, the potentially important law enforcement ability to act promptly could be given little, if any, weight in this context: Beare , at p. 404, per La Forest J.

[ 60 ] Adopting this categorical approach would mean that, although the police may lawfully seize a cell phone found in the course of a search incident to arrest where there is reason to believe it contains evidence relevant to the offence, the phone may not be searched, at all, without a warrant. The Supreme Court of the United States essentially adopted this approach in Riley v. California , 134 S. Ct. 2473 (2014). I would not follow suit for two reasons. [ 61 ] First, the only case from this Court to adopt a categorical exclusion from searches incident to arrest is Stillman .

But the considerations that prompted the Court to take a categorical approach in that case are entirely absent in this case. The record in this case shows that important law enforcement objectives are served by the power to search cell phones promptly incident to arrest. This is unlike the Stillman situation, in which the Court concluded that the prompt access to the suspect’s bodily samples did little to serve law enforcement objectives incidental to the arrest.

Moreover, and in marked contrast to the bodily sample seizures at issue in Stillman , while cell phone searches have the potential to be a significant invasion of privacy, they are neither inevitably a major invasion of privacy nor inherently degrading. Looking at a few recent text messages or a couple of recent pictures is hardly a massive invasion of privacy, let alone an affront to human dignity. [ 62 ] Second, I am not as pessimistic as some about the possibility of placing meaningful limits on the manner and extent of cell phone searches incident to arrest.

Meaningful limits, rather than blanket exclusions, have been imposed in other settings. For example, in Golden , the Court did not categorically preclude all strip searches incident to an arrest. Instead, the Court limited the purposes for which they could be conducted, imposed a reasonable grounds threshold, and established rules governing how the searches should be conducted (essentially search protocols).

The Court took this approach even though it found strip searches to be “inherently humiliating and degrading . . . regardless of the manner in which they are carried out”: para. 90. [ 63 ] A cell phone search engages very significant informational privacy interests. However, it is not as invasive as a strip search. It seems to me that s. 8 would require a categorical prohibition on cell phone searches only if this Court were to find that it is impossible to impose meaningful limits on the purposes, threshold and manner of such searches.

As I discuss below, I am not satisfied that this is the case. [ 64 ] I therefore reject the idea that s. 8 of the Charter categorically precludes any search of a cell phone seized incidental to a lawful arrest. [ 65 ] The question becomes what 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 . (

b) Imposing a Reasonable and Probable Grounds Requirement [ 66 ] One possibility is to require reasonable and probable grounds for the search, as the Court did in Golden . This Court has described the higher threshold of “reasonable and probable grounds” as requiring “reasonable probability” or “credibly-based probability”: Debot , at p. 1166; Hunter v. Southam Inc. , at p. 167. In my respectful opinion, imposing that threshold here would significantly undermine the important law enforcement objectives in this context.

A main rationale of search incident to arrest, in addition to safety of the police, the suspect and the public, is to allow the police to promptly pursue their investigation: see, e.g., Beare , at p. 404, per La Forest J. Investigations have many leads and many dead ends.

To restrict a cell phone search to situations in which the officers have reasonable and probable cause to believe that evidence of the offence will be found on the cell phone, to my way of thinking, effectively precludes prompt access to what may be very important information which is required for the immediate purposes of the unfolding investigation. [ 67 ] The record in this case demonstrates this. A prompt search of a cell phone may lead investigators to other perpetrators and to stolen and easily disposed of property.

At the point of arrest, police will rarely have reasonable and probable grounds to believe that evidence of the offence will be found on the phone, and yet some limited access to its contents may be, as here, an important investigative step that needs to be taken promptly. As Det. Nicol testified, there were in this investigation — as there will be in many investigations — information and leads that needed to be followed up immediately.

Imposing a “reasonable and probable grounds” requirement for all cell phone searches will cut off access to this important step in virtually all cases. [ 68 ] Further, in my view, requiring reasonable and probable grounds to search for the purpose of protecting the police, the accused, or the public overshoots the point at which the public’s interest in being left alone by government must give way to intruding on an individual’s privacy to advance law enforcement objectives. A case such as this one is instructive: the police knew a dangerous weapon was on the streets.

In this type of situation, it is reasonable to be concerned that the weapon could be used to commit another offence or could be disposed of in a public area, endangering the safety of innocent individuals. As with the case of discovery of evidence, the police may not have reasonable and probable grounds to believe that a search of the cell phone is necessary to protect them, the accused or the public. However, they may have reason to think that searching the cell phone may further those objectives.

A standard of reasonable and probable grounds, in my view, has the potential to unreasonably compromise the safety of the police, the accused, or the public. It strikes an inappropriate balance between those important law enforcement objectives and the accused’s privacy interests. (

c) Exigent Circumstances [ 69 ] Another possibility is to allow cell phone searches only in exigent circumstances, as the appellant urges us to do: A.F., at paras. 41 and 53. The Ontario Superior Court of Justice adopted this approach in Liew , but, so far as I have been able to determine, it has not been followed in any other Canadian case. As I see it, that standard requires too much knowledge on the part of the police, given the very early point in an investigation at which a search incident to arrest will often occur.

It shares the pitfalls of imposing a standard of reasonable and probable grounds and, if applied in the manner proposed by my colleague, Karakatsanis J., would go even further to prohibit a cell phone search in all but the most exceptional circumstances. [ 70 ] This approach, in my view, gives almost no weight to the law enforcement objectives served by the ability to promptly search a cell phone incidental to a lawful arrest.

If, as is my view, importing a standard of reasonable and probable grounds would significantly undermine these objectives, then imposing a requirement of urgency and restricting the purposes for which the search may be conducted would effectively gut them. This standard, in my respectful view, fails to strike the balance required by s. 8

between the privacy interests of the individual and the state’s interest in protecting the public. [71] Finally, to prohibit cell phone searches in all but “exigent circumstances” is simply not consistent with the structureof our law relating to search incident to arrest. As P.

Brown observes in relation to American case law, which has relied on exigentcircumstances to justify a cell phone search incident to arrest [i]f an actual danger of destruction of evidence were required to trigger the [search incident to arrest] exception to the warrantrequirement, then [search incident to arrest] would be a mere subset of the exigency exception. . . .

The reasoning in [some] cases istherefore flawed because it silently reads the [search incident to arrest] exception out of existence by rendering it a restatement of theexigency exception. (“Searches of Cell Phones Incident to Arrest: Overview of the Law as It Stands and a New Path Forward” (2014), 27 Harv. J.L. & Tech.563, at p. 572) [72] I also resist reliance on the statutory provisions adopted in response to this Court’s decision in R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, to set a standard that would permit searches of cell phones incident to arrest.

This Court has yetto make any pronouncements regarding the constitutionality of s. 529.3 of the Criminal Code, R.S.C. 1985, c. C-46, and I prefer not torely on its assumed constitutionality in setting the constitutional parameters of cell phone searches incident to arrest. [73] To be clear, nothing in my reasons changes the existing law in relation to warrantless searches in exigentcircumstances.

(5) Other Steps [74] The focus of our attention, in my view, should not be on steps that effectively gut the usefulness of searches incidentto arrest. Rather, we should concentrate on measures to limit the potential invasion of privacy that may, but does not inevitably resultfrom a cell phone search. This may be done by making some modifications to the common law power to search cell phones incidental toarrest.

Ultimately, the purpose of the exercise is to strike a balance that gives due weight, on the one hand, to the important lawenforcement objectives served by searches incident to arrest and, on the other, to the very significant privacy interests at stake in cellphone searches. [75] The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permitsearches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss ordestruction of evidence, or discovery of evidence.

Three modifications to the general rules would give effect to this approach. [76] 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 enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the searchperformed on the cell phone must be truly incidental to the particular arrest for the particular offence.

In practice, this will mean that,generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails,texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes forwhich prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified.The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted.

Toparaphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25. [77] This approach responds to the privacy concerns posed by the virtually infinite storage capacity of cell phones by, ingeneral, excluding resort to that capacity in a search incident to arrest. It would also provide these protections while preserving theability of the police to have resort to basic cell phone data where this serves the purposes for which searches incident to arrest arepermitted. [78] There is a parallel here with the Court’s decision in Vu.

A warrant to search a computer does not give the police “alicence to scour the devices indiscriminately”: para. 61. Similarly, the fact that some examination of a cell phone is truly incidental toarrest does not give the police a licence to rummage around in the device at will. The nature and extent of the search must be trulyincidental to the arrest in order for it to fall within the scope of the common law rule and respect s. 8 of the Charter.

I agree with thecourts of appeal in British Columbia and Nova Scotia that, generally, the search of the entire contents of a cell phone or a download of itscontents is not permitted as a search incident to arrest: Mann, at para. 123; Hiscoe, at paras. 63 and 79. [79] The law enforcement objectives served by searches incident to arrest will generally be most compelling in the courseof the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety atrisk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking.

Generallyspeaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the lawenforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences. [80] A further modification is that the third purpose for which searches incident to arrest are permitted — the discoveryof evidence — must be treated restrictively in this context.

The discovery of evidence, in the context of a cell phone search incident toarrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the abilityto promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to thediscovery of evidence clearly outweigh the potentially significant intrusion on privacy.

For example, if, as in this case, there is reason tothink that there is another perpetrator who has not been located, the search of a cell phone for that purpose will be truly incidental to thearrest of the other suspects. As Det. Nicol testified, there were matters that needed to be followed up immediately in this case. If, on theother hand, all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could showthat the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigativepurpose.

This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additionalevidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared toexplain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to

postpone the search until they could obtain a warrant. [ 81 ] The approach taken by the trial judge in D’Annunzio is instructive. The accused was arrested for sexual assault immediately after a young girl complained that he had inappropriately touched her in a grocery store. A search incident to that arrest discovered a cell phone. The officer seized it and searched for photos or videos of a sexual nature that were related to the offence, and for other inappropriate sexual content. At trial, the accused challenged the admissibility of two photos and a video found on the phone during this search.

The trial judge ruled that the search was not truly incidental to the arrest. The search was “not done to further a legitimate purpose incidental to [the] arrest. . . . The cell phone was in the possession of the police at all times and there was no urgency”: paras. 23-24. To put this differently, the prompt search of the cell phone was not sufficiently linked to an important law enforcement objective. [ 82 ] Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping 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 nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration.

After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest. [ 83 ] To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest.

Rather, such a search will comply with s. 8 where:

(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 the search, 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 significantly hampered 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. [ 84 ] In setting out these requirements for the common law police power, I do not suggest that these measures represent the only way to make searches of cell phones incident to arrest constitutionally compliant. This may be an area, as the Court concluded was the case in Golden , in which legislation may well be desirable. The law enforcement and privacy concerns may be balanced in many ways and my reasons are not intended to restrict the acceptable options. B.

Second Issue: Application of the Framework to the Present Case [ 85 ] The initial search of the appellant’s cell phone incidental to his arrest revealed a relevant draft text message and photographs. Although there were subsequent searches, no additional evidence was found and the evidence from the cell phone tendered by the Crown at trial was that originally viewed by Sgt. Hicks: Ruling, at para. 30.

It is therefore only necessary to rule on the legality of his initial searches of the cell phone. [ 86 ] As I discussed in detail earlier in my reasons, there were important law enforcement objectives to be served by a prompt search of aspects of the phone. The police believed that to be the case, and their belief was reasonable. However, the officers’ evidence about the extent of the cell phone search was not satisfactory. Sergeant Hicks said that he “had a look through the cell phone” but could not recall specifics: Ruling, at para. 20.

Detective Constable Abdel-Malik said that he later did “some quick checks” for about two minutes, but, again, his ev

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