CHS LAW

Initial Review of R. v. Fearon [2014] S.C.J. No. 77

In a monumental Supreme Court 4-3 criminal law ruling, the majority of the Court decided that cell phones may be searched upon arrest, so long as the arrest is for a lawful purpose. Here, a man was searched and his cell phone was taken from him and flipped through for incriminating evidence after he was arrested in connection with a crime. Keep in mind, it appears from my initial review of the case that the police had no hard evidence this man was ever involved in a crime before the search. Then they searched his phone without asking, because, well he’s been arrested so he has a lower expectation of privacy when he is arrested. Maybe he’s got a gun. Oh, a cell phone? That’s interesting. Let’s just flip through this…

Although the Court indicates in their decision that the police must take detailed notes of how and why they were looking through the cell phone, and that the police could only look at some of the newer texts and sent messages while conducting the arrest, they give the police officer in this case a free pass and waive this rule’s application. Here, the police had no notes about how extensive their initial search was. The Court found that since “the truth” was more important, and essentially, the police officer was only trying to do their job, that it didn’t matter that they didn’t have detailed notes. They qualify this by saying that, outside of the initial arrest and the initial flipping through of the cell phone, a warrant should be obtained for the full search of the cell phone. Real comforting.

It is important to note that the Court sets new guidelines up for searching cell phones in this monumental case, saying that they can address the problem of the police having access to too much of our personal information by having the police take detailed notes about what their initial search is about, and thenignores this rule. This essentially sets a nation-wide standard for police officers to search your cell phone when they arrest you as long as they are in pursuit of “the truth”. We quote: “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) and “[the accused’s] privacy interests were going to be impacted one way or another….” (para. 96).

It goes without saying that your cell is not safe whenever you are arrested. This man didn’t have a password on his phone. Maybe if he had, he could have simply said “get a warrant” when the police asked him for his password. This would have been a legitimate response. If you don’t have a password, it appears from this case that the officer has full opportunity to look through your cell phone when he arrests you, say they were doing it because they thought that there might be something, and when they find it, they don’t really have to write any notes as long as they are trying to be one of the good guys. 

Yep, you guessed it – what this case is actually saying is they can run through the legal mist by saying “honest mistake” (para. 95) buddy, sorry. Sound fair to you? Not really? Too bad. Password protect your phone, people. Make them get a warrant. Or rather, if you find yourself being arrested, you could instead give them the opportunity to look through all of your personal stuff and laugh with their partner about you, your friends, your pictures and that recent Facebook post you wrote about the election. That’s all we’re saying.