Date: 2014-12-11 Docket: 35298. Cromwell, J. | Link

The SCC found that s. 8 of the Charter does notcategorically preclude any search of a cell phone seized incidental to a lawful arrest.  The court disagreed with the ONCA and found that there should be no differentiation among cellular devices based on their particular capacities. The SCC held that for a cell phone search to be truly incidental to the arrest, the police need a reason based on a valid law enforcement purpose to conduct the search, and that reason must be objectively reasonable. The valid law enforcement purposes in this context are: a) protecting the police, the accused, or the public; b) preserving evidence; or c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. The SCC modified  the general framework for searches incidental to arrest in the case of cell phones: 1) the nature and extent of the search must be tailored to the purpose for which the search may lawfully be conducted; and 2) officers must make detailed notes of what they have examined on the cell phone. The SCC found that the search of the Fearon’s cell phone that lead to the incriminating photos and messages was truly incidental to arrest, the search was not reasonable but the evidence should not be excluded. The appeal was dismissed.