R. v. Fearon, 2010 ONCJ 645

COURT FILE No.: Toronto DATE: 2010·December·23 Citation: R. v. Fearon , 2010 ONCJ 645 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KEVIN FEARON Before Justice Diane Oleskiw Heard on: March 23, 24 and 25; May 13; June 4 and 15; August 9; October 4 and 12; November 10, 2010 Reasons for Rulings on Cell Phone Search Released on December 23, 2010 B. Stagg ........................................................................................................ Counsel for the Crown S. Goldstein...............................................................................................

Counsel for Kevin Fearon G. Aristos............................................................................................. Counsel for Junior Chapman J. Berman.................................................................................................. Counsel for Joshua Anang OLESKIW, J.: [ 1 ] The Applicant, together with Junior Chapman and Joshua Anang, is charged with armed robbery and several related offences arising out of the gunpoint robbery of a jewellery merchant at the Downsview Park Merchant Market on July 26, 2009. [ 2 ] Mr.

Fearon applied for an Order excluding photographs and text messages found in the cell phone that was seized from him at the time of his arrest on the basis that the search violated his s. 8 Charter rights and would bring the administration of justice into disrepute under s.24(2) of the Charter . [ 3 ] On November 24, 2010, I ruled that the downloaded images of the photographs and text message from the cell phone were admitted into evidence. These are my reasons for that ruling.

BACKGROUND OF THE INVESTIGATION [ 4 ] At approximately 6:15p.m. on Sunday, July 26, 2009, Araksi Nar was robbed of substantial amounts of jewellery as she was loading her car at the end of a sales day at the Downsview Park Merchant Market (“the Market”). Ms. Nar and other witnesses described that two young adult black males approached Ms. Nar at her car near an exit of the Market demanding that she open the trunk where she had placed the bag of jewellery. The male wearing a red hoody held what appeared to be a silver handgun to her waist.

When she did not comply with his demand immediately, he became more forceful and pointed the gun at her chest. She opened the trunk. The men grabbed the bags, including one filled with jewellery, and fled the scene in a black car.

Someone provided a licence plate number for the car to a security guard who provided it to the police when the 911 call was made within minutes of the robbery. [ 5 ] An intense investigation ensued between 6:23 p.m. on July 26 and the early morning hours of July 28, 2009 when a loaded Smith and Wesson silver semi-automatic handgun was finally located under a seat in the car that was believed to be the get-away car. Detective Nicol and Detective Constable Abdel-Malik were the lead investigators assigned from the holdup squad and were “on call” for all of Toronto that night.

The other officers were from 31 Division. [ 6 ] By 6:32 p.m., the police were on scene at the Market at 40 Carl Hall Road. Detective Nicol and Detective Constable Abdel-Malik started their investigation back at the station at 7:02 p.m.

[ 7 ] At 6:39 p.m., P.C. Cherry located a black Acura vehicle bearing the licence plate number provided to police in the 911 call in the rear parking lot of 32 Brookwell Drive. This car was quickly determined to be registered to Junior Chapman. [ 8 ] Detective Constable Reynolds of 31 Division Major Crime Unit heard the broadcast armed robbery call at 6:23 p.m. He began investigating. Based on information he gathered, including the location of the black Acura and descriptions of the perpetrators, he believed that Kevin Fearon was a suspect. Mr.

Fearon was known to him, lived very close to 40 Carl Hall Road and 32 Brookwell Drive, and matched the description. He also learned that Mr. Fearon had a previous association with Junior Chapman. [ 9 ] At approximately 8:35 p.m., Reynolds attended at Kevin Fearon’s last known address at 3390 Keele Street for the purpose of viewing any surveillance tapes that may be available. 3390 Keele Street is a high rise apartment building that essentially backs on to 32 Brookwell Drive. Reynolds was in the lobby of 3390 Keele Street with two security guards when two males walked out the front doors of the lobby.

He immediately recognized one of these males as Kevin Fearon. [ 10 ] Reynolds followed the two men out of the building and called for assistance. As Reynolds approached the males, other units from 31 Division Community Response Unit were arriving on scene. At this time, Reynolds observed the second male to resemble the RICI photograph he had pulled up on his scout car earlier for Junior Chapman. [ 11 ] Reynolds informed both males that they were being investigated for a robbery investigation. He advised Sgt. Hicks that the first male was Kevin Fearon.

When he asked the second male for identification, Junior Chapman provided a false name. After further investigation, at 9:00 p.m., Reynolds arrested Junior Chapman for obstruct police. He was handcuffed and read his rights to counsel. Mr. Chapman indicated that he understood. [ 12 ] As soon as Reynolds handcuffed Mr. Chapman, he advised Abdel-Malik and Detective Nicol that Junior Chapman was in custody in the area of 3390 Keele and that he was accompanied by Kevin Fearon. The detectives arrived on scene at 9:10 p.m.

There were several other officers present at the time. [ 13 ] Reynolds conferred with Abdel-Malik at which point Abdel-Malik told Reynolds to arrest both males for armed robbery. According to Abdel-Malik, he formed the grounds for arrest based on information provided to him by Reynolds, that one of them was the registered owner of the black Acura with a plate number matching the reported get-away car and that they matched the physical descriptions provided by the victim. Reynolds then advised Sgt. Hicks of Abdel-Malik’s direction to arrest. [ 14 ] Hicks and Ge arrested Mr. Fearon. Reynolds arrested Mr. Chapman.

At the time of the arrests at 9:15 p.m. on July 26, 2009, no firearm or jewellery had been recovered. A: EVIDENCE RELEVANT TO SEARCH AND SEIZURE OF THE CELL PHONE [ 15 ] At 9:01 p.m., Sgt. Hicks and P.C. Ge were the first officers to arrive on scene near 3390 Keele to assist Reynolds. Sgt. Hicks was a road sergeant with the Community Response Unit at 31 Division.

He monitored the radio call about the robbery occurrence and had already attended at two other locations to investigate the robbery prior to arriving at 3390 Keele. [ 16 ] Hicks also monitored the radio call from Reynolds indicating that Reynolds required back up because he was on his own on foot following two males matching the description of the robbery occurrence and that he had some information that they may be related to the call. [ 17 ] Hicks received information from Reynolds and then Hicks and Ge spoke with Mr. Fearon while Reynolds dealt with Mr. Chapman.

Hicks advised Fearon that he was being investigated “because we have information that they may be related to the incident and we had other information that officers had just seized a vehicle a short distance away…that was being secured that may have had evidence in it and that it was all in close proximity and we wanted to investigate to see if they had any involvement in that.” [ 18 ] Hicks advised Fearon that he was being detained for armed robbery in the area and he had a conversation with Fearon about his whereabouts in the last part of the day.

Other uniformed officers came on scene and the holdup officers also arrived. Detectives Nicol and Abdel-Malik had a conversation with Reynolds after which Reynolds advised Hicks that both males are arrestable. [ 19 ] At 9:15 p.m. Hicks placed Fearon under arrest and read his rights to counsel. Officer Ge placed Fearon in handcuffs and escorted him to the police vehicle. Hicks then conducted a pat down search of Mr. Fearon “for the purposes of safety and for possible evidence”. This search was conducted on the sidewalk. At this time Sgt. Hicks located a black and silver TELUS cell phone, model LG285 in Mr.

Fearon’s right front pants pocket. [ 20 ] Once Hicks had the phone from the pocket and finished the search, he “had a look through the cell phone, saw some things in that cell phone, and seized it at that point in time as evidence in relation to the investigation”. He could not recall specifics, but believed that he found some photos in the cell phone at the time, including photos of males and a photo of a gun. [ 21 ] Hicks testified that the cell phone was “on” when he flipped it open to look at the contents.

He was looking to see if there was any evidence that might be on there, so he could take it under control for himself or to let somebody else know who may be doing the investigation that there are things on that phone that may be related to their ongoing investigation. [ 22 ] He explained that he manipulated the keypad to the extent that he entered into different modes to access text messages and photographs on the phone. There is no suggestion in the evidence that any of the information Sgt. Hicks accessed was protected by passwords or other encryption or security protection. [ 23 ] Sgt.

Hick’s examination of the phone occurred at the scene of the arrest, outside of the police van. Mr. Fearon was placed in the police van at 9:24 and they arrived at 31 Division at 9:29 p.m. Hicks believed there were calls coming in to the phone during transport.

[ 24 ] Sgt. Hicks kept the cell phone in his pocket during transport to 31 Division and he kept custody of it until approximately 10:48p.m. At that time, he showed the contents to Abdel-Malik. Hicks had the phone open and the text message on the screen read: “We did it were the jewlery at nigga burrrrrrrrrrr”. At this time, Abdel-Malik immediately wanted to know if the message had been sent to anyone because it would assist in the investigation. When he tried to look at the options, a screen came up asking if he would like to save this. Abdel-Malik hit “save” and concluded that the message had not been sent yet.

By hitting “save”, he intended to save the message in the memory of the phone so they would not lose it. Then, he did “some quick checks” to see if it had been sent to anybody else and then gave the phone back to Sgt. Hicks when it appeared that it was not going to give them an immediate lead. Abdel-Malik estimated that he inspected the cell phone for approximately two minutes at this time. [ 25 ] Hicks, Abdel-Malik and Nicol inspected the contents of the cell phone a few times throughout the night when other information led them to believe that there should be more relevant information in the phone.

At 1:18 a.m., Adbel-Malik looked into the phone again after learning that there was third suspect who went by the name of “Swipes” and that his contact number should be in the cell phone. Further, just before 2:50a.m., officers were directed to check some of the phone numbers called by Mr. Fearon to see if they led to possible associates including the then unidentified “Swipes”. [ 26 ] According to Detective Nicol, all inspection of the cell phone on July 26, 2010 was done at his direction or with his approval.

He would have made Hicks aware that they were interested in the contents of the cell phone and left Abdel-Malik to inspect the contents of the cell phone as he is more technically savvy. According to Nicol, he requested Hicks and Abdel-Malik to look through the cell phone to see if there was any contact information that could lead to the identity of the outstanding suspect or information leading to the outstanding firearm or jewellery. He stated that the cell phone might have text messages or last calls that would indicate persons they communicated with shortly after the robbery. Dtv.

Nicol explained: .. 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 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.

Also, based on my experience, people take photographs of things they steal, places that they go, targets of their offences. [ 27 ] Detective Nicol explained that he did not believe that he needed a warrant at the time of July 26 and 27 searches of the content of the cell phone because: It’s still an investigation where I’m looking for jewellery, I’m looking for outstanding suspects, I’m looking for the gun that’s outstanding, and I have concerns that those items might go missing, destroyed and then I have the chance to recover those items, that I’m able to look through that phone and ensure that there’s anything there to assist my investigation at the time, I can use that information... ...it’s property that they can move very quickly, be sold very quickly, hidden, any number of things that can happen to it and you have to act quickly in order to recover it. [ 28 ] The cell phone was put away and submitted to the Technological Crime Forensics Lab for safekeeping on September 21, 2009. [ 29 ] On February 9, 2010, Detective Nicol obtained warrant to search and download the information from the cell phone.

The Information to obtain the warrant discloses the previous searches of cell phone. Nicol testified that he applied for a warrant in February 2010 because, at some point after this investigation, he was told that there was a court decision that said that you now need a search warrant to download and search phones.

Although they used to submit phones to the Technological Crime Unit for searches without a warrant, after learning of this court decision, he believed that he could not submit the phone to the Unit for downloading without a warrant. [ 30 ] A warrant was granted on February 9, 2010 to search the contents of the cell phone, including, (

a) call data; (

b) SMS (text) data; (

c) Email data; (

d) Photographs; (

e) Contact lists. It is common ground that the photographs and text message originally viewed by Sgt. Hicks are the same items obtained as a result of the search warrants and sought to be admitted. B. POSITION OF THE PARTIES [ 31 ] The Applicant argues that the police violated Mr. Fearon’s s.8 Charter rights by the initial warrentless searches of the cell phone by Hicks and Abdel-Malik. The Applicant does not contest the legality of his arrest.

His complaint is with the search and seizure of information in the cell phone; in particular a photograph of a gun, a photograph of male, and a draft text message indicating “We did it were the jewlery at nigga burrrrrrrrrrr”. [ 32 ] The Applicant relies heavily on the case of R. v. Polius , [2009] O.J. No. 3074 (S.C.) and says that the key, as in Polius, is that the arresting officer himself did not have the requisite grounds to seize the phone and look through it for text messages and photographs. The Applicant argues that in this particular case, Sgt.

Hicks did not have the grounds to believe subjectively or reasonably that the cell phone would afford evidence prior to looking into its contents. Since all of the other searches were premised on this first search, evidence from them must be excluded. Further, this initial breach cannot be “cured” by a valid search warrant issued 6 months after the fact. [ 33 ] The Crown submits that the initial searches were truly incidental to arrest as the search for evidence and preservation of evidence.

Further, these warrantless searches were disclosed to the issuing judge in the information to obtain the warrant on February 9, 2010. Even without the facts obtained from the cursory search the cell phone on the night of the arrest, the information to obtain contained sufficient information to enable the warrant to be issued. C. THE ISSUES AND LAW REGARDING SEARCH INCIDENT TO ARREST

[ 34 ] Searches conducted incident to arrest are an exception to the rule that warrantless searches are prima facie unreasonable: R. v. Golden , 2001 SCC 83 (CanLII) , [2001] 3 S.C.R. 679 at para. 23 . A search incident to arrest must still be reasonable within the meaning of s. 8. A search conducted incident to arrest will be authorized by law if (1) the arrest is lawful; (2) the search is truly incidental to arrest and (3) the manner in which the search is conducted is reasonable: R. v.

Stillman , 1997 CanLII 384 (SCC) , [1997] 1 S.C.R. 607 at para. 27 . [ 35 ] The authority for searches incidental to an arrest arises from the arrest. The legality of the search is derived from the legality of the arrest. Accordingly, a s earch incident to arrest does not require a warrant or independent reasonable grounds for the search: R. v. Caslake , 1998 CanLII 838 (SCC) , [1998] 1 S.C.R. 51 at para. 13 . [ 36 ] In this case, there is no issue regarding the lawfulness of the Applicant’s arrest. The real issue here is whether the searches of the contents of Mr.

Fearon’s cell phone during the early stages of the investigation on July 26 and 27, 2009, and prior to obtaining the warrant on February 9, 2010, were truly incidental to his arrest on July 26, 2009. [ 37 ]

Section 8 of the Charter protects privacy of the person, territorial privacy and informational privacy. The Supreme Court of Canada has, on several occasions, recognized the importance of informational privacy: R. v. Dyment (1988), 1988 CanLII 10 (SCC) , 45 C.C.C. (3d) 244; R. v. Plant (1994), 1993 CanLII 70 (SCC) , 84 C.C.C. (3d) 203; R. v. Buhay , 2003 SCC 30 (CanLII) , [2003] 1 S.C.R. 631 at para. 24 ; R. v. Morelli , 2010 SCC 8 (CanLII) , [2010] S.C.J. 8 at paras. 3 , 105-106.

That said, the authority for a search incident to arrest arises out of the need for law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy.

This means that a search incident to arrest is only justifiable if the purpose of the search is related to the purpose of the arrest: Caslake , at para. 17 . [ 38 ] A search is properly incidental to arrest where the police attempt to “achieve some valid purpose connected to the arrest” including: (1) discovery of an object that may be a threat to the safety of the police, the arrestee or the public; (2) finding and preserving relevant evidence which may assist in the police investigation and the eventual prosecution of the arrestee; (3) preventing the destruction of evidence; and (4) discovering an object that may facilitate the arrestee’s escape ; Caslake at para. 19 ; Cloutier v.

Langlois , 1990 CanLII 122 (SCC) , [1990] 1 S.C.R. 158 at para. 61 ; R. v. Lim (No.2), [1990] O.J. No. 32 (H.C.) at para. 31 . [ 39 ] The police must have at least one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one. As Lamer C.J.C. explained in Caslake at para. 20 : To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted.

Here, the only requirement is that there be some reasonable basis for doing what the police officer did. ... The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier , there must be a "valid objective" served by the search.

An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. [ 40 ] In Caslake , the Court also noted that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested: Caslake at para. 22 . In R. v. Lim (No 2), [1990] O.J.

No. 32 (H.C.) , a case cited with approval in C aslake , Doherty J. (as he then was) explained it this way at paras. 30 & 31: It is, however, firmly established that where the search flows from the fact of a lawful arrest, the search does not require any justification apart from the arrest.

An officer conducting a search as an incident of arrest need not have reasonable and probable grounds to believe that the search will yield evidence of the offence for which the accused was arrested, or that the search will yield weapons which could endanger those at the scene of the arrest. [ citations omitted] These cases, all of which deal with the search of an arrested person, recognize that the circumstances which operate on an arrest do not permit of the reflection or measured response associated with the existence of reasonable and probable grounds.

The justification for the search of the arrestee is twofold. First, and probably most important, it permits the protection of those at the scene of the arrest, including the arrestee. Experience tells us that an arrest can be a very volatile situation in which it is fair for the police to expect the unexpected.

Second, the search is permitted to allow the police to find and preserve relevant evi dence which may assist in their investigation and the eventual prosecution of the arrestee, and which may also assist in their determination as to whether the arrested person should be held. [citations omitted] Again, experience tells us that the arrested person is often in possession of items which are very relevant to if not conclusive of his involvement in the charges for which he has been arrested. D. FINDINGS [ 41 ] In my view, the searches requiring examination by this Court are: First, Sgt.

Hicks’ cursory inspection of the contents of the phone at the scene of the arrest; and second, the intermittent searches of the contents of the phone from 10:48 p.m on July 26 th until the early morning hours of July 27 th at the direction of the detectives.

i) Hicks’ Search at the Arrest Scene [ 42 ] It is clear and conceded that there were reasonable and probable grounds for Mr. Fearon’s arrest. The arrest was lawful. Further, it is clear to this Court that Sgt. Hicks had the right to search Mr. Fearon upon arrest and take from his person any property that he reasonably believed may constitute relevant evidence. [ 43 ] I find that S gt. Hicks was justified in his belief that the cell phone may contain evidence relevant to the armed robbery for which Mr. Fearon was being arrested. Sgt.

Hicks had been investigating other aspects of the robbery since the radio call at 6:23 p.m. Prior to arriving at 3390 Keele Street, he knew that Reynolds needed assistance with two suspects who matched the description of the robbery occurrence. By the time he received direction to arrest Mr. Fearon for armed robbery at 9:15 p.m. he also knew: (1) that more than one perpetrator committed the robbery; (2) approximately three hours had elapsed since the robbery; and (3) there was a gun or

imitation gun involved in the robbery. [ 44 ] In these circumstances, I find that there was a reasonable prospect of securing evidence of the offence for which the accused was being 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 third parties. His search of the phone at the arrest scene was brief and cursory.

There is no suggestion that this was an expansive or abusive search. [ 45 ] This case is distinguishable from the arrest in R. v. Polius, [2009] O.J. No. 3074 . In that case Trafford J. found that the arresting officer seized the accused’s cell phone during a search incident to arrest without any regard for its evidentiary value in connection with an arrest that he did not and could not particularize.

The arresting officer in that case did not have a reasonable basis to believe that the cell phone may have been evidence of the alleged murder when he arrested the accused. ii) Searches at the Station [ 46 ] I also find that the further searches of the phone at the station over the night of July 26 and morning of July 27 were also properly incident to arrest. Although 1 ½ hours had passed since the arrest, Abdel-Malik’s saving of the text message at the station was clearly incidental to the arrest as preserving evidence.

The further searches, looking for contact names and other information as the investigation developed over the night were also incident to arrest as the officers believed that those searches would a ssist in their investigation and the eventual prosecution of the arrestee. In particular, Nicol and Abdel-Malik had a reasonable basis to conclude that the contents of the cell phone could have some evidentiary value. At the time further searches were ordered, Abdel-Malik and Nicol knew that t he gun and the jewellery were outstanding.

They also learned that a third person was involved and that the contact information for that person should be in Mr. Fearon’s cell phone. Information contained in the cell phone was reasonably connected to the offence such that one would expect to find some evidence in its contents. The delay and distance from the arrest scene is not significant and does not undermine the close connection between the search and the arrest, particularly when it was, essentially, an extension of Sgt.

Hick’s search at the arrest scene: Caslake at para. 25 ; Nolet , 2010 SCC 24 (CanLII) , 2010 S.C.C. 24 at para. 50 . [ 47 ] I want to be clear that I am not suggesting than an officer would be justified in seizing a cell phone and looking at its contents upon every arrest. However, in the circumstances of this particular arrest, I am satisfied that the purpose of the pre-warrant searches was related to the purpose of the arrest and that there was a reasonable prospect of securing evidence of the offence for which the accused was being arrested.

The search flowed from the arrest made on reasonable and probable grounds. iii) Cell Phones Excluded From the Common Law Power? [ 48 ] The Applicant also submits that the police exceeded the scope of the common law power to search incidental to arrest when they searched the cell phone and retrieved the text message and photographs. Essentially, without eliciting evidence on the issue, the Applicant argues that the expectation of privacy in information stored in a cell phone is so extraordinarily high that a warrant is required prior to searching the contents.

There are conflicting trial court decisions on this issue and no appellate authority: see R. v. Polius , [2009] O.J. No. 3074 (S.C.) and R. v. Finnikin , [2009] O.J. No. 6016 (S.C.) ; and contra. R. v. Giles , 2007 BCSC 1147 (CanLII) , [2007] B.C.J. No. 2918 (S.C.) and R. v. Otchere-Badu , 2010 ONSC 1059 (CanLII) , 2010 O.N.S.C. 1059 . [ 49 ] W hile there is no doubt that cell phones can contain significant amounts of personal information, the evidence in this case does not lead to the conclusion that Mr. Fearon had an extraordinarily high expectation of privacy in this phone. Mr.

Fearon did not testify on the voir dire and there was very little evidence as to the device’s capabilities. There is no evidence that the phone was password protected or subject to any security barriers. Nor is there any evidence that it had “mini-computer” capabilities like the Treo in R. v. Little , 2009 O.N.S.C. 41212. [ 50 ] Mr. Goldstein relied on the analogy of a cell phone to a locked briefcase in support of his argument that the cell phone carries an exceptionally high expectation of privacy.

The cell phone in this case, however, was not “locked” and had no password protection or other security walls on it. The Ontario Court of Appeal has held that, where the search is truly incidental to arrest, it is lawful to search an unlocked briefcase in a vehicle: R. v. Mohamed 2004 CanLII 9378 (ON CA) , [2004] O.J. No. 279 at paras. 37-38 .

In Mohamed , the court also noted the significant distinction between the warrantless search of a laptop computer locked in a stolen car’s trunk and the case before them in part because a computer can be a repository of an almost unlimited universe of information: Mohamed at para. 43 ; R. v. Law , 2002 SCC 10 (CanLII) , [2002] 1 S.C.R. 227 at para. 25 . In this case, there is no evidence that the cell phone had the capabilities of a computer. Further, this was a communication device being carried on the Applicant’s person, not a home computer kept in his house as in R. v. Morelli , [2010] S.C.J .

No. 8 at paras. 3, 104, 105. [ 51 ] In my view, an ordinary cell phone objectively commands a measure of privacy in its contents. However, the expectation of privacy in the information contained in the cell phone is more akin to what might be disclosed by searching a purse, a wallet, a notebook or briefcase found in the same circumstances. The evidence in this case is that the LG cell phone appears to have had the functions of cell phone operation, text messaging, photographs and contact lists.

While certainly private, the information stored is not so connected to the dignity of the person that this court should create an exception to the police ability to search for evidence when truly incidental to arrest and carried out in a reasonable manner. E. SECTION 24(2) [ 52 ] Having found that there was no infringement of Mr. Fearon’s right to be secure against unreasonable search and seizure, it is not necessary for me to consider s. 24(2) of the Charter .

However, in the event that I am proved to be wrong in my conclusion with regard to the reasonableness of the search and seizure, I will direct my mind to s. 24(2). [ 53 ] Since the release of R. v. Grant , 2009 SCC 32 (CanLII) , [2009] 2 S.C.R. 353, the Court now applies three inquiries to the s. 24(2) analysis: (

i) the seriousness of the Charter -infringing state conduct;

(ii) the impact on the Charter -protected interests of the accused; and (iii) society’s interest in adjudication on the merits. [ 54 ] In this case, if there was a breach, it was not conduct on the serious end of the scale. The police acted in good faith. Sgt. Hicks and later Abdel-Malik and Nicol believed that they were acting within their powers of search incident to arrest at the time they looked into the contents. To date, there is no clear binding jurisprudence that would have directed the police to treat the cell phone in any way other than they did upon arrest.

Detective Nicol applied for and obtained a warrant to do a comprehensive search and download of the phone six months after the initial searches with those searches fully disclosed in the information to obtain. He did this after learning about a case, subsequent to the searches on July 26 and 27, 2009, that ruled that he should get a warrant to have the Technological Crime Lab search and download the information stored in the cell phone. The unchallenged warrant mitigates against both the seriousness of the assumed earlier breach and the impact on the Applicant’s Charter protected interests.

The search impacted on Mr. Fearon’s informational privacy interests but it did not implicate his bodily integrity or dignity. [ 55 ] The evidence obtained from the warrantless searches consists of a photograph of a gun that looks like the gun found in the vehicle registered to Junior Chapman, a photograph of a male who appears to be Mr. Fearon and a text message saying “We did it were the jewlery at nigga burrrrrrrrrrr”. This is cogent evidence linking Mr. Fearon to a very serious crime. The exclusion of this reliable and relevant evidence would undermine the truth seeking function of the justice system.

On balance, even if the warrantless searches breached s.8, the breach would not bring the administration of justice into disrepute. The evidence disclosed by the cell phone search would not be excluded. Released: December 23, 2010. _________________________________ Signed: “Justice Diane Oleskiw”