"Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery. The robbers grabbed some bags, one of which was filled with jewellery, and fled in a black vehicle. The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun. Later that evening, they located and secured the getaway vehicle, and arrested F and C. During the pat‑down search of F conducted incident to arrest, police found a cell phone in F’s pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun. A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo. Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8 of the Charter . She admitted the photos and text message and convicted F of robbery with a firearm and related offences. The Court of Appeal dismissed an appeal."

The S.C.C. (4:3) dismissed the appeal.

Justice Cromwell wrote as follows (at paras. 3-4, 90-97):

"…we must strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures. In short, we must identify the point at which the “public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60.

In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched— is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.

…

The trial judge found no breach, but conducted a s. 24(2) analysis in the event she erred in that respect. Her findings of fact in this regard, like her other findings of fact, are entitled to deference on appeal.

The first factor is the seriousness of the Charter -infringing state conduct. An important consideration is whether admission of the evidence may send a message that the court condones serious state misconduct.

The trial judge made strong findings relevant to this factor. She concluded that, “if there was a breach, it was not conduct on the serious end of the scale”: Ruling, at para. 54. She also found that the police acted in good faith:

Sgt. Hicks and later Abdel-Malik and Nicol believed that they were acting within their powers of search incident to arrest at the time they looked into the contents. To date, there is no clear binding jurisprudence that would have directed the police to treat the cell phone in any way other than they did upon arrest. Detective Nicol applied for and obtained a warrant to do a comprehensive search and download of the phone six months after the initial searches with those searches fully disclosed in the information to obtain. He did this after learning about a case, subsequent to the searches on July 26 and 27, 2009, that ruled that he should get a warrant to have the Technological Crime Lab search and download the information stored in the cell phone. [ibid.]

The trial judge’s summary of the state of the law at the time of the search is a fair one, in my view. At the time, the decision most favourable to the appellant’s position was that of the Ontario Superior Court of Justice in Polius, but it was issued only slightly more than a month before the search and it contemplated “cursory” searches of cell phones incident to arrest: paras. 39 ff. (I note that R. v. Finnikin, 2009 CanLII 82187 (Ont. S.C.J.), to which the trial judge referred was decided several months after the search in this case.) As the trial judge pointed out, there were cases at the time approving cell phone searches incident to arrest. In fact, it is fair to say that this was the dominant view at the time of the arrest. The Court of Appeal’s unanimous decision upholding the legality of the search in this case supports the conclusion that the officer’s view of the law was reasonable. The officer’s subsequent conduct in obtaining the warrant which fully disclosed the earlier searches supports the trial judge’s conclusion that the police acted in good faith.

Of course, the police cannot choose the least onerous path whenever there is a gray area in the law. In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused’s potential privacy rights. But here, 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.

In my view, the first factor favours admission of the evidence. There is not here even a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to disassociate itself from that conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.

The second factor concerns the impact of the breach on the Charter ‑protected interests of the accused. Any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests. But, in the particular circumstances of this case, the trial judge found, in effect, that Mr. Fearon had not established that the invasion of his privacy had been particularly grave. This conclusion is supported by the fact that Mr. Fearon did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone. This amounts to a concession that, even if the findings of the initial search were excised from the information to obtain that warrant, reasonable and probable grounds were still made out. As the trial judge noted, “[t]he unchallenged warrant mitigates against both the seriousness of the assumed earlier breach and the impact on [Mr. Fearon’s] Charter protected interests”: Ruling, at para. 54. So we are not here concerned with a search that could not have been legally conducted at all. Mr. Fearon’s privacy interests were going to be impacted one way or the other, and the particular breach of his s. 8 rights in this case did not significantly change the nature of that impact: see, e.g., R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 84. While this factor favours exclusion, it does so weakly.

The final factor is society’s interest in the adjudication of the case on its merits. The evidence here is cogent and reliable. As the trial judge found, its exclusion “would undermine the truth seeking function of the justice system”: Ruling, at para. 55. This factor favours admission."

Karakatsanis in dissent (concurred in by LeBel and Abella JJ. at paras. 100-106):

"We live in a time of profound technological change and innovation. Developments in mobile communications and computing technology have revolutionized our daily lives. Individuals can, while walking down the street, converse with family on the other side of the world, browse vast stores of human knowledge and information over the Internet, or share a video, photograph or comment about their experiences with a legion of friends and followers.

The devices which give us this freedom also generate immense stores of data about our movements and our lives. Ever-improving GPS technology even allows these devices to track the locations of their owners. Private digital devices record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits. Our digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives.

Therefore, as technology changes, our law must also evolve so that modern mobile devices do not become the telescreens of George Orwell’s 1984. In this appeal, we are asked to decide when police officers are entitled to search a mobile phone found in the possession or vicinity of an accused person upon arrest. Because this new technology poses unique threats to peoples’ privacy, we must turn to first principles to determine the appropriate response.

An individual’s right to a private sphere is a hallmark of our free and democratic society. This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination. Section 8 of the Canadian Charter of Rights and Freedoms protects the right to be free from unreasonable search and seizure. In defining the contours of a reasonable search, the law balances legitimate state interests, including safety and securing evidence in law enforcement, with the privacy interests of individuals. This balance generally requires judicial pre-authorization for a search, and a warrantless search is prima facie unreasonable.

Nonetheless, our law recognizes that pre-authorization is not always feasible, such as when a search is reasonably necessary to effect an arrest. For this reason, the police have a limited power to search lawfully arrested individuals and their immediate vicinity. However, this police power does not extend to searches which encroach on the arrested person’s most private spheres ― searches of the home, or the taking of bodily samples. In my view, searches of personal digital devices risk similarly serious encroachments on privacy and are therefore not authorized under the common law power to search incident to arrest.

The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances ― when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.

In this case, the appellant was arrested in connection with an armed robbery. Upon arrest, the police searched his cell phone and discovered incriminating evidence. The police had no grounds to suspect there was an imminent threat to safety and no grounds to believe there was an imminent risk of the destruction of evidence. Consequently, I conclude that the search was unreasonable and unconstitutional. The police were required to obtain a warrant before searching the phone, although they were entitled to seize the phone pending an application for a warrant. I would exclude the evidence so obtained."

Note: The summary is a reprint of an article by Istvan Fekete in iPhone in Canada. The body is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.