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.

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Current & Curious: Cell technology is simple compared to this stuff...

Courts continue to grapple with the apparently difficult issue of searching cellular phones incident to arrest. In one of the most recent rulings, Boswell J seems to forge a somewhat new and much more restrictive approach to the issue: R v Liew,2012 ONSC 1826. A curious ruling given the recent comments of the Court of Appeal in R v Manley2011 ONCA 128.

A nice summary of Liew and commentary can be found on Westlaw Canada's CriminalSource's newest newsletter: Police Powers Newsletter 2012-01.

In brief, Liew was arrested on grounds that he was importing cocaine. A search incident to arrest revealed a Sony Erikson cell phone. The officer decided search the phone incident to arrest. The stated purpose for this search was to find "immediate phone calls and immediate texts" [para 15]. The officer did find some recent phone calls. The search of the phone lasted approximately 7 minutes [para 17].

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