Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Fearon, 2014 SCC 77

[1] The police have a common law power to search incident to a lawful arrest. Does this power permit the search of cell 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 to hold that the power to search incident to arrest generally includes the power to search cell phones, provided that the search is truly incidental to the arrest: R. v. Giles, 2007 BCSC 1147 (CanLII); R. v. Otchere-Badu, 2010 ONSC 1059 (CanLII); Young v. Canada, 2010 CanLII 74003 (NL PC), 2010 CanLII 74003 (Nfld. Prov. Ct.); R. v. Howell, 2011 NSSC 284 (CanLII), 313 N.S.R. (2d) 4; R. v. Franko, 2012 ABQB 282 (CanLII), 541 A.R. 23; R. v. Cater, 2014 NSCA 74 (CanLII); R. v. D’Annunzio (2010), 224 C.R.R. (2d) 221 (Ont. S.C.J.). The second view is that “cursory” searches are permitted: R. v. Polius (2009), 224 C.R.R. (2d) 288 (Ont. S.C.J.). A third is that thorough “data-dump” searches are not permitted incident to arrest: R. v. Hiscoe, 2013 NSCA 48 (CanLII), 328 N.S.R. (2d) 381; R. v. Mann, 2014 BCCA 231 (CanLII), 310 C.C.C. (3d) 143. Finally, it has also 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 (CanLII). These divergent results underline both the difficulty of the question and the need for a more consistent approach.

2. R. v. Day, 2014 NLCA 14

[24] The officer said several times that he did not want to speculate as to what he would have done had the search warrant not been issued by the judge and that he would have to know the judge’s reasons for not issuing it before he could speculate about whether it would have affected his decision to arrest Mr. Day. At no time did he say that his belief depended on the warrant being issued or that he would have altered his belief in the grounds for arresting Mr. Day had the judge not issued the warrant. There was no evidence suggesting that Constable Emberley’s subjective belief that Mr. Day was trafficking marihuana hinged on whether a judge would issue a warrant to search Mr. Day’s residence. Neither does it logically follow that the officer’s belief would have changed had the warrant not been issued.

[25] At this juncture, it is worth observing that a decision to arrest can involve more than simply having the requisite grounds. The fact that the officer may not have arrested Mr. Day had the warrant not been issued does not mean that the officer’s subjective belief was vitiated, or that his grounds were not objectively justifiable. The police may have a subjective belief that is objectively justifiable to arrest a person whom they choose not to arrest, and the fact that the arrest is not carried out does not mean that the police do not have the grounds.

3. R. v. Fearon, 2013 ONCA 106

The circumstances of the search of the accused’s cellphone upon his arrest fell within the ambit of the common law doctrine of search incident to arrest. The police reasonably believed that an examination of the phone would yield evidence of the robbery. They had information that the accused 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 suspects but they knew that there was a need to act quickly after the offence in order to locate the other suspects and possibly also the gun and the stolen jewellery. The police knew from experience that robbers will sometimes take photos of the stolen property and even of themselves with that property. The cursory examination of the cellphone at the time of arrest did not go beyond the permissible limits of a search incident to arrest. As for the search at the police station, although the court might have reached a different conclusion than the trial judge about whether this search was also incident to arrest, her findings that the police were searching the phone to locate the other suspect, stolen items and the gun did not reflect palpable and overriding error. Further, there was no additional evidence obtained from the cellphone. The accused’s rights under s. 8 of the Charter were not violated. This was not an appropriate case in which to carve out a cellphone exception to the common law doctrine of search incident to arrest.

The most-consulted French-language decision was R. c. Fearon, 2014 CSC 77

[1] La common law accorde aux policiers le pouvoir de procéder à une fouille accessoire à une arrestation légale. Ce pouvoir permet‑il la fouille de téléphones cellulaires et d’appareils similaires trouvés sur le suspect? Telle est la question principale soulevée par le présent pourvoi.

[2] Jusqu’à maintenant, les tribunaux canadiens n’ont pas donné de réponse constante. Au moins quatre solutions ont été retenues. Selon la première, le pouvoir de procéder à une fouille accessoire à l’arrestation comprend généralement le pouvoir de fouiller des téléphones cellulaires, pourvu que la fouille soit véritablement accessoire à l’arrestation : R. c. Giles, 2007 BCSC 1147 (CanLII); R. c. Otchere‑Badu, 2010 ONSC 1059 (CanLII); Young c. Canada, 2010 CanLII 74003 (NL PC), 2010 CanLII 74003 (C. prov. T.‑N.); R. c. Howell, 2011 NSSC 284 (CanLII), 313 N.S.R. (2d) 4; R. c. Franko, 2012 ABQB 282 (CanLII), 541 A.R. 23; R. c. Cater, 2014 NSCA 74 (CanLII); R. c. D’Annunzio (2010), 224 C.R.R. (2d) 221 (C.S.J. Ont.). Selon la deuxième, les fouilles « sommaires » sont permises : R. c. Polius (2009), 196 C.R. (2d) 288 (C.S.J Ont.). Selon une troisième solution, les fouilles en profondeur par vidage de données ne sont pas permises accessoirement à l’arrestation : R. c. Hiscoe, 2013 NSCA 48 (CanLII), 328 N.S.R. (2d) 381; R. c. Mann, 2014 BCCA 231 (CanLII), 310 C.C.C. (3d) 143. Enfin, on a également estimé que les fouilles accessoires à l’arrestation à l’égard de téléphones cellulaires ne sont pas permises sauf en situation d’urgence, auquel cas une fouille « sommaire » est permise : R. c. Liew, 2012 ONSC 1826 (CanLII). Ces résultats divergents mettent en évidence la difficulté de la question soulevée ainsi que la nécessité d’une approche plus cohérente.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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