R v. Fearon: The Supreme Court on cell phones and privacy

R v. Fearon: The Supreme Court on cell phones and privacy
by Lisa Di Valentino

On December 11, 2014, the Supreme Court released its decision in R. v. Fearon, which I brought up in an earlier post about a similar case in the U.S. (Riley v. California, Supreme Court of the United States). In this post I pondered the following questions:

Will (the Canadian Supreme Court) agree that a cursory search of a cell phone incident to arrest is a reasonable action for law enforcement to take? Or will they decide that, despite the fact that the individual is no longer merely a suspect, he has a reasonable expectation of privacy in his digital information, and that a warrant is required to access it?

I realize now that phrasing of the two questions seems to suggest opposing answers, when in fact the response to both can be “yes”. The Court took an approach similar to the one in another recent discussed in another earlier post, R. v. Spencer. Here, the Supreme Court affirmed an individual’s reasonable expectation of privacy in Internet browsing activity, but ultimately upheld the conviction because, among other reasons, the belief that an Internet service provider can disclose identifying information about a client to law enforcement without a warrant was “reasonable” (para. 77)

In Fearon, the Court has based its decision on the same ratio: the defendant’s section 8 Charter right against unreasonable search and seizure had been violated, but the admission of the evidence was upheld on the grounds that its exclusion would “undermine the truth-seeking function of the justice system.” (para. 97)

The facts of the case are as follows: Fearon and another man called Chapman were arrested in connection with the armed robbery of a jeweller. Fearon was frisked and the officer found a cell phone in Fearon’s pocket. While perusing the contents of the phone the officer found a photo of a handgun and an unsent text message to a third person that suggested Fearon and Chapman were involved in the robbery. At trial, Fearon argued that his constitutional right against unreasonable search and seizure was violated by the search of his cell phone. Both the trial court and the Ontario Court of Appeal held that the right was not breached. The Supreme Court heard the appeal in May, 2014 and issued its decision on December 11.

The Supreme Court decided the case on four grounds:

• Was the warrantless search reasonable and in fact incident to the arrest of Fearon as per the general framework of the common law principle (that is, in the pursuit of a valid purpose related to the proper administration of justice, such as preventing violence or the eradication of evidence)? If so…
• Does this framework still comply with section 8 of the Charter in the context of searching the contents of a cell phone, which “implicates privacy interests which are different in both nature and extent from the search of other ‘places’” (para. 51)? Or does the framework need to be modified in a way that still reflects the balance between the privacy interest of an individual and the objectives of law enforcement? If so…
• Does the search in this case comply with the modified framework? In other words, is it compliant with constitutional requirements? If not…
• Would the admission of the evidence bring the administration of justice into disrepute?

The first question was answered in the affirmative — the search was incident to Fearon’s arrest and was related to the proper administration of justice. (para. 33)

As to the second question, the Court rejected a categorical approach to the constitutionality of cell phone searches incident to lawful arrest (which is the approach that the Court claims was taken in Riley); instead, measures should be taken “to limit the potential invasion of privacy that may, but does not inevitably result from a cell phone search.” (para. 74) Generally, in practice, this would mean that such a search would be limited to recent activity on the phone, whether it be phone calls, texts, or photos (para. 76). The nature of the alleged offence should also be taken into account; a cell phone search might be justified incident to an arrest for a crime of violence or a serious property offence, but not for a minor offence that does not involve a threat to the safety of the public or the potential for disposal of evidence (paras. 79-80). The Court further modified the standard common law framework of search incident to arrest by requiring that officers make notes detailing how they searched the phone and what they found, to allow for judicial review after the fact (para. 82).

In applying the modified framework to the facts of the case (question 3), the Court found that the burden of proving that the search was lawful was not met by the Crown, because the officers were not able to provide specifics about the extent of the cell phone search, so there is no opportunity for an after-the-fact review (paras 86-87). Thus, Fearon’s section 8 rights were violated (para. 88).

Given that there has been an unconstitutional invasion of privacy, should the evidence be excluded? The Court noted that the cell phone search in this case (that is, only looking at recent photos taken on the phone and unsent text messages) led to only a “minimal” invasion of privacy (para. 54), and that an individual lawfully arrested has a lower reasonable expectation of privacy than one who has not been lawfully arrested (para. 56). It was not “particularly grave” (para. 95). The conduct of the officers was not so egregious to be considered misconduct; as the Court put it, “if the police faced a gray area, it was a very light shade of gray, and they had good reason to believe, as they did, that what they were doing was perfectly legal.” (para. 94) Finally, the Court said that society has a strong interest in the adjudication of this case on its merits (para. 97). In all, the exclusion of the evidence would “undermine the truth seeking function of the justice system.” (para 97) The Court dismissed the appeal and upheld the admission of the evidence obtained from the cell phone search.

The decision was not unanimous; a dissent by Karakatsanis J (and concurred with by LeBel and Abella JJ) raised concerns similar to those of SCOTUS in Riley v. California. She argues that the search of a personal digital device is both quantitatively and qualitatively different from a search of a nearby physical object, even incident to arrest (para. 125). Because of this, the privacy rights of individuals, even arrested ones, require “protection that is clear, practical and effective” such as that provided by judicial pre-authorization (para. 105). The police had the opportunity to seize the phone and acquire a warrant to search it (para. 106). Alternatively, a warrantless search could be justified where there are exigent circumstances, which did not arise in this case (para. 181).

Both the majority and the dissent agree that Fearon’s section 8 rights were violated. The difference arises as to the extent of the violation and whether the evidence should be excluded on that basis. The majority’s view is that the violation was not serious, which tips the balance towards of the ability of law enforcement to secure and collect evidence, and the opportunity for the court to try a case on its merits. The dissent, on the other hand, is of the view that the invasion of privacy was very serious due to the particular nature of cell phone content (para. 191), and this fact strongly favours exclusion of the evidence (para. 197).

(Incidentally, the Court addressed the notion that an individual retains a higher expectation of privacy when he has restricted access to his cell phone using a password. In short, it does not make a difference [para. 53]. However, it surely makes a difference to whether the police can get into your phone in the first place, so if you are worried by the Court’s ruling, you might want to lock your phone.)

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See also:

Michael Geist (2014, December 11), “Supreme Court’s Privacy Streak Comes To End: Split Court Affirms Legality of Warrantless Phone Searches Incident to Arrest” at michaelgeist.ca.

Ben Prichard (2014, December 11), “When Can Police Search Your Cell Phone?” at pritchardlaw.ca.

Lisa Di Valentino, MA, MLIS, JD
ldivalen@uwo.ca
PhD candidate, Library and Information Science
The University of Western Ontario
http://fairdealingineducation.com/