New & Notable: If it ain't broke, don't fix it...

Like many people in this modern age, Kevin Fearon carried a cell phone. Unlike many people, the police discovered this fact when they arrested him for robbery while armed with a firearm. A search of the cell phone was conducted which resulted in the police discovering photographs of a gun and cash. The police also discovered an incriminating text message.


The initial search by the police was followed by further searches of the phone over the next two days and, periodically, over the following months. At trial, the Crown relied only upon the results of the initial search incident to arrest.  On appeal following his conviction, Mr. Fearon argued that the conduct of the police in searching his phone was outside the ambit of a lawful search incident to arrest. Additionally, Fearon asked the Ontario Court of Appeal to carve out a cell phone exception to the doctrine of search incident to arrest: 2013 ONCA 106.

Applying Caslake, the Court in Fearon found no error in the reasoning of the trial judge that the search of the cell phone would yield relevant evidence:

The trial judge concluded that the police reasonably believed that an examination of the contents of the cell phone would yield relevant evidence. Absent palpable and overriding error, such a finding is entitled to deference. I discern no such error. The appellant was arrested about three hours after the robbery. The police had information that the appellant had acted with a second person and that a third person was involved in the stashing of the stolen jewellery. There was therefore a potential for communication among the three suspected participants. In addition, the police had a legitimate concern about the location of the gun and the stolen jewellery. Any communication among the three suspects could lead to the discovery of one or both. In respect of the photographs found in the cell phone, the police knew from experience that robbers will sometimes take photos of the stolen property and even of themselves with the loot [para 47].

The only remaining question for the Court of Appeal on this issue was whether the search went beyond the limits of a search incident to arrest. Mr. Fearon, citing Polius and Manley, took the position that the police were entitled to do no more than a “cursory” examination of the contents of the cell phone and that they should have obtained a search warrant after the discovery of the phone, or, at least, after the discovery of the photos and text message. The Court concluded that the search in this case did not exceed the ambit of the doctrine of search incident to arrest. The Court noted that the phone was not password protected or locked and indeed characterized the initial search as cursory in nature in order to determine whether it contained evidence of the robbery.

Interestingly, and somewhat academic in nature, as the evidence was not relied upon by the Crown at trial, the Court also considered the subsequent searches of the cell phone at the police station. The Court concluded that the proper course for the police in relation to these subsequent searches would have been to obtain a search warrant.

The Court in Fearon rejected as unnecessary the request to carve out an exception to the general doctrine of search incident to arrest:

The problem I have with the appellant’s position and, in particular, the position of the Canadian Civil Liberties Association, is that it would appear to mark a significant departure from the existing state of the law on the basis of a record that does not suggest it is necessary. While I appreciate the highly personal and sensitive nature of the contents of a cell phone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case. The facts of this case, with the correct application of the existing law, suggest that the search and seizure of the cell phone at the scene of the arrest were carried out appropriately and within the limits of the law articulated by the Supreme Court in Caslake.

In this case, it is significant that the cell phone was apparently not password protected or otherwise “locked” to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased [paras 72-73].

On the facts of this case, the Court concluded that the present doctrine of search incident to arrest was sufficient, stating in the modern vernacular: “If it ain’t broke, don’t fix it” [para 77].


Editor's note:  for more commentary and insight into this issue see: Mack's Criminal Law Bulletin Issue 2011-10; High Tech Law Section @MCLaw; High Tech Science Section @MCLaw.