Her Majesty the Queen v. Fearon, 2013 ONCA 106

minicounsel

Ontario Reports

Court of Appeal for Ontario,

MacPherson, R.P. Armstrong and Watt JJ.A.

February 20, 2013

114 O.R. (3d) 81 | 2013 ONCA 106

Case Summary

Charter of Rights and Freedoms — Counsel — Exclusion of evidence — Police unintentionally leaving accused alone for five hours after his arrest and not assigning anyone to deal with his request to speak to counsel — Breach of accused's right to counsel not intentional and not affecting voluntariness of his subsequent statement — Trial judge not erring in concluding that admission of statement would not bring administration of justice into disrepute.

Charter of Rights and Freedoms — Search and seizure — Search incident to arrest — Cellphones — Accused arrested shortly after armed robbery and cellphone found on his person — Police having information that accused acted with others and knowing from experience that robbers sometimes take photographs of stolen property — Police reasonably believing that examination of contents of accused's cellphone would yield relevant evidence about other robbers, location of jewellery and gun used — Trial judge accepting police evidence that it was important to examine cellphone as soon after robbery as possible — Cursory warrantless search of unlocked cellphone without password when accused was arrested and later at police station falling within ambit of common law doctrine of search incident to arrest and not violating accused's rights under s. 8 of Charter — Canadian Charter of Rights and Freedoms, s. 8.

About three hours after the robbery of a jewellery vendor by two men, the accused was arrested for armed robbery. A police officer conducted a pat down search and found a cellphone on the accused's person. The cellphone was not password-protected or locked. The officer examined the contents of the cellphone and found photographs of a gun and cash as well as an incriminating text message. The cellphone was searched again without a warrant at the police station to determine to whom the text message was sent. The examination showed that it was only a draft that had not been sent to anyone. Months later, one of the officers applied for a search warrant and disclosed in the information to obtain the warrant that a cursory search of the cellphone had already occurred. The accused was informed of his right to counsel upon arrest and stated that he wanted to talk to a lawyer. The police unintentionally left him alone at the police station for five hours and did not assign anyone to deal with his request to speak to a lawyer. For at least part of this period, the accused was sleeping. When they returned, they again gave the accused the appropriate Canadian Charter of Rights and Freedoms warnings. He indicated that he did not wish to speak to counsel, said that he wanted to plead guilty the following day and gave a full videotaped confession. The trial judge found that the warrantless search of the cellphone did not violate the accused's rights under s. 8 of the Charter. She found that there was a technical inadvertent breach of the accused's rights under s. 10(b) of the Charter but concluded that the statement should not be excluded under s. 24(2) of the Charter. The accused was convicted. He appealed.

Held, the appeal should be dismissed. [page82 ]

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 trial judge did not err in finding that admission of the accused's statement would not bring the administration of justice into disrepute. There was no atmosphere of oppression in the room, and the accused decided to make a full confession and plead guilty while he was alone. The breach of s. 10(b) of the Charter was inadvertent and did not affect the voluntariness of the statement.

Cases referred to

R. v. Polius, [2009] O.J. No. 3074, 196 C.R.R. (2d) 288 (S.C.J.), distd

R. v. Little, [2009] O.J. No. 3278, 2009 41212 (S.C.J.); R. v. Manley, [2011] O.J. No. 642, 2011 ONCA 128, 228 C.R.R. (2d) 45, 275 O.A.C. 81, 269 C.C.C. (3d) 40, consd

Other cases referred to

R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 155 D.L.R. (4th) 19, 221 N.R. 281, [1999] 4 W.W.R. 303, J.E. 98-217, 123 Man. R. (2d) 208, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1, 48 C.R.R. (2d) 189; R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49, 146 D.L.R. (4th) 609, 212 N.R. 83, [1997] 6 W.W.R. 634, J.E. 97-1133, 91 B.C.A.C. 1, 115 C.C.C. (3d) 129, 7 C.R. (5th) 101, 44 C.R.R. (2d) 1, 34 W.C.B. (2d) 266; R. v. Giles, [2007] B.C.J. No. 2918, 2007 BCSC 1147, 77 W.C.B. (2d) 469; R. v. Golden, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 2001 SCC 83, 207 D.L.R. (4th) 18, 279 N.R. 1, J.E. 2002-17, 153 O.A.C. 201, 159 C.C.C. (3d) 449, 47 C.R. (5th) 1, 89 C.R.R. (2d) 271, 51 W.C.B. (2d) 457; R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743, [1997] O.J. No. 3097, 102 O.A.C. 176, 117 C.C.C. (3d) 193, 9 C.R. (5th) 98, 45 C.R.R. (2d) 254, 35 W.C.B. (2d) 277 (C.A.); R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279, 181 O.A.C. 201, 182 C.C.C. (3d) 97, 20 C.R. (6th) 178, 61 W.C.B. (2d) 434 (C.A.); R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 144 D.L.R. (4th) 193, 209 N.R. 81, J.E. 97-704, 185 N.B.R. (2d) 1, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, 42 C.R.R. (2d) 189

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 10(b), 24(2)

Criminal Code, R.S.C. 1985, c. C-46, s. 487.1 [as am.] [page83 ]

APPEAL by the accused from the conviction entered by Oleskiw J., [2010] O.J. No. 5745, 2010 ONCJ 645.

Sam Goldstein, for appellant.

Randy Schwartz, for respondent.

Susan M. Chapman and Jennifer Micallef, for intervenor Criminal Lawyers' Association.

Matthew Milne-Smith, for intervenor Canadian Civil Liberties Association.

Kevin Wilson, for intervenor Public Prosecution Service of Canada.

The judgment of the court was delivered by

R.P. ARMSTRONG J.A.: —

Introduction

1This court is asked to carve out a cellphone exception to the common law doctrine of search incident to arrest.

2The appellant, Kevin Fearon, was arrested for robbery while armed with a firearm. Upon his arrest, a police officer conducted a pat down search and located a cellphone on his person. The officer examined the contents of the phone and found photographs of a gun and cash as well as an incriminating text message. The appellant was brought to the police station and placed in an interview room. When the police returned after unintentionally leaving him alone for five hours, he gave a full videotaped confession. Throughout his confession, he maintained that the firearm used in the commission of the robbery was an imitation handgun.

3At trial, the appellant sought to exclude the evidence that had been obtained from his cellphone upon his arrest. He claimed the search of the cellphone incident to arrest was a breach of his right to be free from unreasonable search and seizure protected by s. 8 of the Canadian Charter of Rights and Freedoms. The appellant also sought to exclude his confession, arguing that it was obtained in breach of his s. 10(b) Charter right to counsel and that it was involuntary.

4The trial judge found that there was no breach of s. 8 and admitted the evidence obtained from the cellphone. However, in the event she was wrong in her conclusion on the s. 8 issue, the trial judge turned her mind to the application of s. 24(2). She held that, if there had in fact been a breach of s. 8, to admit the evidence would not bring the administration of justice into disrepute. [page84 ]

5The trial judge also found that Mr. Fearon's confession given later at the police station was voluntary. Although she held that there was a technical breach of the appellant's s. 10(b) rights, she concluded his statements should be admitted pursuant to s. 24(2) of the Charter. In the result, Mr. Fearon was convicted of robbery and received a sentence of six years. He appeals his conviction on the grounds that the trial judge erred in her analysis of ss. 8, 10(b) and 24(2) of the Charter.

6The appellant contends that the warrantless search of the contents of a cellphone incident to arrest (except for a cursory examination to see if it contains evidence of the alleged crime) is prohibited by s. 8 of the Charter except in exigent circumstances. The appellant's position is supported by the intervenor the Criminal Lawyers' Association of Ontario. The Canadian Civil Liberties Association intervenes in support of the appellant and goes even further. They would not permit even a cursory examination of the contents of a cellphone seized during a search incident to arrest.

7The Public Prosecution Service of Canada intervenes in support of the respondent Crown's position that the warrantless search in this case was incidental to the arrest of the appellant and was therefore lawful.

8For the reasons that follow, I would dismiss the appeal.

The Facts

(a) The robbery

The Facts

9On July 26, 2009, Ms. Araksi Nar was operating a jewellery stall at a flea market in the Downsview area of Toronto. At the end of the day (about 6:15 p.m.), as Ms. Nar was packing her merchandise into her car, she was robbed by two men. One of the men pointed a handgun at her and ordered her to open the trunk of her car. The other man stood by. The two men then grabbed the jewellery and other objects and fled to a waiting car. The estimated value of the stolen jewellery was between $10,000 and $40,000.

10Ms. Nar described the gun as an inch and a half in diameter, mostly silver, but dark grey toward the handle. She said that the two men drove off in a black two-door automobile, which was located within 25 minutes of the robbery by virtue of a licence plate number given to the police by an eyewitness. The car was left less than a kilometre from the flea market. The car was registered to the appellant's co-accused, Junior Chapman.

11Eyewitnesses at the scene gave descriptions of the robbers, which included that the robber with the gun was wearing [page85 ]an oversized red "hoodie". When the car was located, the police observed a red sweater on the front passenger seat. The car was sealed in anticipation of obtaining a search warrant.

12Based on the description provided by Ms. Nar to police, P.C. Reynolds suspected that the appellant, who lived in the area, may have been involved in the robbery. The officer was also advised that the owner of the getaway car had previously been arrested with the appellant.

(b) The arrest

The Arrest

13P.C. Reynolds drove to the apartment building where the appellant lived. When he entered the lobby of the building, he saw the appellant and Mr. Chapman leave. P.C. Reynolds then detained the appellant and Mr. Chapman. The appellant initially lied about his identity. He was arrested for obstructing justice. When Sergeant Hicks and another officer from the holdup squad arrived, the appellant and Mr. Chapman were arrested for robbery with a firearm. The appellant and Mr. Chapman were cautioned and advised of their rights to counsel.

Search and Seizure of the Cellphone

14A pat down search of the appellant followed. This resulted in the discovery of the cellphone containing the photographs of a gun and cash as well as the incriminating text message. The text message read: "We did it were the jewlery at nigga burrrrrrrrr".

15In order to access the photographs and the text message in the cellphone, Sergeant Hicks had to operate the keyboard on the phone. The cellphone was turned "on" and there is no evidence that it was password protected or otherwise "locked" to users other than the appellant. The photographs and the text message were not in plain view and it was necessary to manipulate the key pad in order to move the phone into its different modes.

16When Sergeant Hicks returned to the police station, he gave the phone to another officer who attempted to determine whether the incriminating text message had been sent to anyone. The officer determined that the message was a draft and therefore had not yet been sent to anyone. He hit the "save" button in order not to lose the text message. After about two minutes, the phone was returned to Sergeant Hicks, who was told to look through it for recent calls or contacts. In the course of the night and next morning, as the investigation progressed, officers made additional checks of the phone. At trial, however, [page86 ]the only data from the phone relied upon by the Crown were the photos and the text message.

17The police officers involved in the examination of the contents of the cellphone believed that they were entitled to proceed without obtaining a search warrant. Detective Nicol, in particular, testified that all inspections of the cellphone were done at his direction or with his approval. From his experience, cellphones found in circumstances such as the appellant's contain text messages sent between co-accused that will assist police in recovering stolen property and apprehending suspects. His evidence at trial underscored the importance of acting quickly following the robbery.

18Many months later, one of the police officers involved in the investigation believed that there was a court case that held a search warrant was required to download the contents of a cellphone. He therefore applied for a warrant. He included in the information to obtain the warrant the fact that the cellphone had been previously examined. The search warrant was issued and the phone was re-examined and the photos and text message entered into evidence. Counsel for the appellant at trial did not challenge the issuance of the search warrant.

(d) The right to counsel

The Right to Counsel

19On his way to the police station, the appellant indicated that he wished to consult counsel. At the police station, he was again read his right to counsel by the booking officer, who was told by the arresting officer that the appellant wished to speak to his lawyer. The booking officer told the appellant that he would have access to a telephone. The appellant was taken to an interview room in the police station at about 9:35 p.m. where he was searched again and then left alone while the arresting officer left to do his paperwork.

20In the meantime, the getaway car was searched and the police located a gun hidden under the front passenger seat where the red sweater was found. The gun was a .22 calibre handgun with its serial number removed. It was loaded with two rounds of ammunition. The gun matched the photograph of the gun in the appellant's cellphone.

21In a backpack found on the rear seat of the car, the police found two bandanas and a neoprene mask. The DNA of Junior Chapman, the appellant's co-accused, was discovered on one of the bandanas.

22The appellant was left alone in the interview room until about 2:50 a.m., when two of the investigating officers entered the room. During the time that the appellant was left alone, the [page87 ]police officers were engaged in various duties related to this investigation and other unrelated responsibilities. They apparently did not think to assign someone to deal with the appellant's request to speak to a lawyer until several hours had passed.

23When the two officers entered the interview room at 2:50 a.m., they apparently woke him up. After introducing himself and another officer, Detective Nicol again advised the appellant that he was charged with robbery while armed with a firearm. The appellant responded, "No, it wasn't a real thing." Detective Nicol then told him the victim thought it was the real thing. Then the following conversation between the appellant and Detective Nicol took place:

Nicol: Do you understand your rights to counsel?

Fearon: Yeah.

Nicol: You told the other officers you wanted to call a lawyer, who is your lawyer and do you have their number?

Fearon: I don't want to call a lawyer. I want to go to sleep. I want to plead guilty in the morning but not to no firearm charge.

Nicol: So you don't want to call a lawyer?

Fearon: No.

Nicol: You understand you're being charged with robbery with a firearm. You're not obligated to say anything and if you choose to do so, it may be used in evidence. Do you understand?

Fearon: Yeah.

Nicol: If anyone in authority or anyone else has said anything to you or made you any promises to provide a statement disregard those statements and only provide a statement if you freely choose to do so. Do you understand?

Fearon: [Nodded yes.]

Nicol: Do you want to tell us what happened tonight?

Fearon: Not really. I did some stupid thing and I'll do what I got to do.

Nicol: Are you sorry for what you've done?

Fearon: Yeah, I fucked up and I'll deal with it.

Nicol: Are you sorry you got caught or sorry you scared that lady?

Fearon: I'm sorry I scared her. I didn't hurt her.

Nicol: What about your family, how are they going to take the news?

Fearon: Not well. My mum's a good lady and my brother's never been in trouble, just me again.

Nicol: Are they going to want to bail you out or visit you in jail? [page88 ]

Fearon: [Now crying.] No, I'm a fuck up and embarrassment. My brother is getting a running scholarship and I'm going to jail.

24The discussion between Detective Nicol and the appellant continued. Detective Nicol asked the appellant if he wished to apologize to the victim. The appellant, in reply, asked whether such an apology could be put before the judge in the morning. The appellant then provided a videotaped statement in which he admitted his involvement in the robbery although he continued to assert that the handgun was fake and had been discarded in a garbage can.

The Ruling on the Cellphone Searches

25The trial judge defined the issue concerning the cellphone searches at para. 36 of her reasons:

In this case, there is no issue regarding the lawfulness of the Applicant's arrest. The real issue here is whether the searches of the contents of Mr. Fearon's cell phone during the early stages of the investigation on July 26 and 27, 2009, and prior to obtaining the warrant on February 9, 2010, were truly incidental to his arrest on July 26, 2009.

26The trial judge further defined the task at para. 41 of her reasons:

In my view, the searches requiring examination by this Court are: First, Sgt. Hicks' cursory inspection of the contents of the phone at the scene of the arrest; and second, the intermittent searches of the contents of the phone from 10:48 p.m. on July 26th until the early morning hours of July 27th at the direction of the detectives.

(a) The search at the scene of the arrest

The Search at the Scene of the Arrest

27It was conceded at trial that there were reasonable and probable grounds to arrest the appellant. The trial judge concluded, at para. 42 of her reasons, that Sergeant Hicks had a right to search the appellant and to take from him "any property that he reasonably believed may constitute relevant evidence".

28The trial judge concluded, at paras. 44 and 45 of her reasons:

In these circumstances, I find that there was a reasonable prospect of securing evidence of the offence for which the accused was being arrested in searching the contents of the cell phone. In particular, it was reasonable for Sgt. Hicks to believe that the arrestee, Mr. Fearon, may have had communications through the cell phone before, during or after the robbery with other perpetrators or with third parties. His search of the phone at the arrest scene was brief and cursory. There is no suggestion that this was an expansive or abusive search.

. . . . . [page89 ]

This case is distinguishable from the arrest in R. v. Polius, [2009] O.J. No. 3074. In that case Trafford J. found that the arresting officer seized the accused's cell phone during a search incident to arrest without any regard for its evidentiary value in connection with an arrest that he did not and could not particularize. The arresting officer in that case did not have a reasonable basis to believe that the cell phone may have been evidence of the alleged murder when he arrested the accused.

(b) The searches at the police station

The Searches at the Police Station

29The trial judge concluded that the searches of the cellphone during the night and early morning hours of the next day were lawful searches incident to arrest. She found that although considerable time and distance had passed from the search at the scene, it was not significant because the searches of the cellphone at the station were closely connected to the search at the scene. The searches at the station were essentially an extension of the search at the scene.

Are Cellphones Excluded from the Common Law Power to Search Incident to Arrest?

30At trial, counsel for Mr. Fearon submitted that the police exceeded their power when they retrieved the photographs and the text message from the cellphone. This argument was premised on the theory that the expectation of privacy in the contents of a cellphone is so high that a warrant is required before the contents are examined.

31The trial judge observed that there were conflicting trial judgments on this issue and no appellate authority to resolve the controversy.¹

32The trial judge held, at paras. 49 and 51 of her reasons:

While there is no doubt that cell phones can contain significant amounts of personal information, the evidence in this case does not lead to the conclusion that Mr. Fearon had an extraordinarily high expectation of privacy in this phone. Mr. Fearon did not testify on the voir dire and there was very little evidence as to the device's capabilities. There is no evidence that the phone was password protected or subject to any security barriers. Nor is there any evidence that it had "mini-computer" capabilities like the Treo in R. v. Little, 2009 41212 (ON SC), [2009] O.J. No. 3278, 2009 ONSC 41212.

. . . . . [page90 ]

In my view, an ordinary cellphone objectively commands a measure of privacy in its contents. However, the expectation of privacy in the information contained in the cell phone is more akin to what might be disclosed by searching a purse, a wallet, a notebook or briefcase found in the same circumstances. The evidence in this case is that the LG cell phone appears to have had the functions of cell phone operation, text messaging, photographs and contact lists. While certainly private, the information stored is not so connected to the dignity of the person that this court should create an exception to the police ability to search for evidence when truly incidental to arrest and carried out in a reasonable manner.

(d) Section 24(2) of the Charter

Section 24(2) of the Charter

33Although it was not necessary to consider s. 24(2) of the Charter, the trial judge did so in the event that her analysis in respect of the cellphone searches proved to be wrong.

34The trial judge applied the analysis set out by the Supreme Court of Canada in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32 in considering whether the court ought to admit evidence in spite of the fact that it was obtained in breach of the appellant's Charter rights.

35The trial judge found that the police acted in good faith and that the officers believed they were acting within their powers of search incident to arrest at the time they looked at the contents of the cellphone. She observed that Detective Nicol applied for and obtained a warrant after learning about a case which held that warrants would be required for the technological crime lab search and downloads of information from cellphones. The trial judge noted that the warrant was not challenged on the Charter application and held that, although there was a six-month delay in obtaining a warrant, it did mitigate the seriousness of the search's impact on the appellant's Charter-protected interests. She found that the evidence obtained from the warrantless search in any event constituted cogent evidence of a very serious crime. In the result, the trial judge concluded that even if she had found a breach of s. 8, the cellphone evidence would not bring the administration of justice into disrepute.

The Ruling on the Admissibility of the Appellant's Statements to the Police

36The trial judge reviewed the circumstances surrounding the making of the appellant's statements and concluded that there was no atmosphere of oppression or anything in the conduct of the police that affected their voluntariness. There was no evidence that the appellant did not fully understand what he was saying or that his statements could be used against him. [page91 ]

37In respect of s. 10(b), the trial judge concluded that the significant delay in providing him with the opportunity to consult a lawyer constituted a breach of his right to counsel. However, in her s. 24(2) analysis, the trial judge concluded that the breach was not serious. She found that the police fully complied with the informational component of s. 10(b) by advising the appellant of his right to speak to a lawyer.

38Regarding the implementational component of s. 10(b), the trial judge found that the delay in providing the opportunity to contact a lawyer was not intentional. There was no attempt to thwart his exercising his right to counsel. The delay on the part of the police was an honest mistake with no harm done. The trial judge concluded: "I am satisfied that Fearon knew exactly what he was giving up when he declined access to counsel to the detectives."

The Position of the Parties on Appeal

(a) The appellant

The Position of the Parties on Appeal

39The appellant advances two principal arguments on appeal. First, he submits that the trial judge erred in holding that the search of the cellphone was a lawful search incident to arrest and that the search did not infringe his s. 8 rights. The appellant contends that this court should carve out a cellphone exception to the doctrine of search incident to arrest. Second, he argues that the trial judge erred by concluding that the appellant's statements to the police were voluntary and did not infringe his Charter-protected s. 10(b) right to counsel. In addition, the appellant submits that the trial judge erred by admitting both the incriminating text and picture produced from the cellphone search and the appellant's statements to the police. This evidence should have been excluded under s. 24(2) of the Charter.

(b) The respondent

The Respondent

40The respondent submits that the examinations of the cellphone made by police fall properly within the ambit of the common law power of search incident to arrest. The respondent opposes the position taken by the appellant that an "exception" for cellphones ought to be carved out of the search incident to arrest doctrine. The respondent also submits that the statements made by the appellant to the police were voluntary and admissible and that the trial judge was correct to conclude that the breach of the appellant's s. 10(b) rights was not serious. [page92 ]Lastly, the respondent argues that the trial judge's s. 24(2) analysis is supportable and entitled to deference from this court.

The Intervenors

41The Canadian Civil Liberties Association requests the court to recognize that a warrantless search of an electronic device that has already been seized incident to arrest is unlawful, absent exigent circumstances. The Criminal Lawyers' Association takes a similar position but would permit the police to do a cursory examination of a cellphone to determine if it contained relevant evidence.

42The director of Public Prosecutions of Canada submits that there should be no cellphone exception to the common law search incident to arrest. Such an exception is unwarranted and would complicate the law for the worse.

Analysis

(a) The cellphone

(i) When is a warrantless search incident to arrest justified?

Analysis

43Counsel for the appellant makes two submissions for excluding the cellphone evidence. First, he submits that the examination of the contents of the cellphone did not satisfy the criteria for a search incident to arrest because the police did not have a reasonable belief that they would discover evidence in support of the robbery and, in any event, the search went well beyond the kind of examination required to determine if such evidence existed. The second argument is not specific to the appellant's case and invites this court to carve out an exception to the common law doctrine of search incident to arrest for cellphones.

When is a Warrantless Search Incident to Arrest Justified?

44Before addressing these submissions, I turn to the Supreme Court's decision in R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3. In Caslake, Lamer C.J.C., writing for a majority of the court, summarized the necessary limits of the common law doctrine of search incident to arrest. The chief justice stressed that its limits must be respected. He explained, at para. 25, that

the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. [page93 ]Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.

45I now return to the issues raised by the appellant.

(ii) Did the cellphone search in this case satisfy the criteria for the application of the common law doctrine of search incident to arrest?

Did the Cellphone Search in this Case Satisfy the Criteria for the Application of the Common Law Doctrine of Search Incident to Arrest?

46The appellant does not take issue with the legality of his arrest or the authority of the police to conduct a pat down search. As a result, there are only two points in issue in this branch of his argument. First, was the belief of the police that an examination of the cellphone would yield evidence of the robbery reasonable? Second, did the search of the contents of the cellphone go beyond the permissible limits of a search incident to arrest?

47The trial judge concluded that the police reasonably believed that an examination of the contents of the cellphone would yield relevant evidence. Absent palpable and overriding error, such a finding is entitled to deference. I discern no such error. The appellant was arrested about three hours after the robbery. The police had information that the appellant 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 suspected participants. In addition, the police had a legitimate concern about the location of the gun and the stolen jewellery. Any communication among the three suspects could lead to the discovery of one or both. In respect of the photographs found in the cellphone, the police knew from experience that robbers will sometimes take photos of the stolen property and even of themselves with the loot.

48The remaining question on this issue is whether the search went beyond the permissible limits of a search incident to arrest. The position of the appellant is that the police were entitled to no more than a "cursory" examination of the contents of the cellphone and that they should have proceeded by way of an application for a search warrant after the pat down search produced the phone or, at least, after they discovered the photos and text message. The appellant relies on two cases for this submission: R. v. Polius, [2009] O.J. No. 3074, 196 C.R.R. (2d) 288 (S.C.J.); and this court's decision in Manley.

49In Polius, the defendant was charged with counselling first-degree murder. At the time of arrest, the police seized a cellphone from the accused. The phone was examined without a warrant. This search led the police to the accused's cellphone [page94 ]number, which they used to obtain the production of his cellphone records. The records were then tendered by the Crown in evidence. Trafford J. concluded that there was a s. 8 breach but admitted the records pursuant to s. 24(2) of the Charter.

50Trafford J. discussed the notion of a "cursory" inspection of an item seized as incident to arrest, at para. 41 of his reasons:

In my view, the power to SITA [i.e., search incident to arrest] includes a power to conduct a cursory inspection of an item to determine whether there is a reasonable basis to believe it may be evidence of the crime for which the arrest was made. However, any examination of an item beyond a cursory examination of it is not within the scope of the power to SITA. Using other words, the evidentiary value of the item must be reasonably apparent on its face, in the context of all of the information known by the arresting officer. Where the purpose of a SITA is to find evidence of the crime, the standard governing the manner and scope of the search is a ". . . reasonable prospect of securing evidence . . .". See R. v. Caslake, supra, at para. 21. The police ". . . must be in a position to assess the circumstances of the case so as to determine whether a search meets the underlying objectives . . ." of the SITA. See Cloutier v. Langlois, supra, at paras. 60-62.

51At para. 57, Trafford J. expressed his view that once a cellphone is found at the time of the arrest and "there is a reasonable basis to believe it may contain evidence of the crime, [it can be seized] for the purpose of preserving its evidentiary value, pending the search of its contents under a search warrant".

52I shall return to Polius during my analysis of whether this court should carve out a cellphone exception to the common law doctrine of search incident to arrest.

53In this court's recent decision in Manley, the appellant was arrested for a number of offences related to the robbery of two retail stores in Trenton. The police seized a cellphone from the appellant on his arrest. The police opened the cellphone and examined its contents. They found a photograph of the appellant holding a sawed-off shotgun taken the day after the second robbery. A warrant was later obtained to search the contents of the phone. At trial, the appellant objected to the admissibility of the photograph on the ground that the original search was unlawful and, as a result, the search warrant was tainted. The trial judge ruled the search was reasonable and the search warrant was valid.

54In Manley, the police had information that the appellant had stolen cellphones in the past. The trial judge found that the first police officer who opened the cellphone did so to determine its owner. Ownership of the phone was relevant to the offences for which the appellant was arrested. Sharpe J.A., writing for the court, said, at paras. 37 and 38 of his reasons: [page95 ]

In my view, this combination of circumstances provided the police with a lawful basis for conducting a cursory search of the cell phone to determine whether it had been stolen. As I can see no basis to interfere with the trial judge's factual finding that the first officer came upon the photograph while conducting a search of the cell phone to determine its ownership, I would uphold the trial judge's determination that the cursory search of the cell phone was lawful.

I wish to emphasize, however that my decision rests on two points. First, that the police had a legitimate interest in determining whether the cell phone had been stolen and second, that the police did not search the stored data in the cell phone for any other purpose. According to the testimony on the voir dire that was accepted by the trial judge, the cell phone's telephone number was identified after the discovery of the photograph. A telephone number is sufficient information from which the ownership of a phone may be determined. Had the examination of the phone continued after the telephone number had been found, this would be a different case. If the telephone number had been written or inscribed on the exterior of the cell phone or visible or easily found when the phone was opened, any further search obviously could not be justified as a cursory inspection to determine ownership. Likewise, in a case where there was no reason to doubt the arrested party's ownership of the phone and no link between ownership and the offence for which the person was arrested, a search of the stored data in the phone could not be justified on the basis that the police were simply trying to determine who owned the phone.

55Sharpe J.A., at para. 39 of his reasons, concluded that it was "neither necessary nor desirable [in this case] to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest".

56Sharpe J.A. declined to apply Polius in Manley. However, he observed that he was not persuaded that Polius was wrongly decided.

57This case is not significantly different from Manley. I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cellphone fell outside the ambit of the common law doctrine of search incident to arrest. Apparently, the cellphone was turned "on" and it was not password protected or otherwise "locked" to users other than the appellant. The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery. The initial search at the time of the arrest involved a cursory look through the contents of the cellphone to ascertain if it contained such evidence.

58The subsequent examinations of the contents of the cellphone at the police station are more difficult to analyze. Arguably, those examinations went beyond the limits for a search incident to arrest. See Caslake, at para. 25. In my view, the proper course for the police was to stop the examination of the contents of the cellphone when they took the appellant to the [page96 ]police station and then proceed to obtain a search warrant. Detective Abdel-Malik agreed that there was no urgency to search through the cellphone. There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner. If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code, R.S.C. 1985, c. C-46. That said, the trial judge concluded that the examination of the contents of the cellphone at the police station were connected to the search at the scene of the arrest. Although some time and distance had passed from the arrest, the trial judge found that the police were still looking for evidence of the location of the jewellery and the gun as well as for contacts among the parties to the offences. These were findings of fact made by the trial judge. While I would have come to a different conclusion, I cannot say that these factual findings reflect palpable and overriding error.

59There is also another observation to make about the search of the cellphone at the police station. No additional evidence appears to have been discovered by the police and none was tendered in evidence from that search. Even if the search at the police station went beyond the limits of Caslake, s. 24(2) is not engaged.

60In the result, I conclude that the trial judge did not err in her finding that the examination of the contents of the cellphone at the time and place of arrest and later at the police station were within the ambit of the common law doctrine of search incident to arrest.

(iii) Should this court carve out a cellphone exception to the common law doctrine of search incident to arrest?

Should this Court Carve Out a Cellphone Exception to the Common Law Doctrine of Search Incident to Arrest?

61The appellant argues that until the Superior Court's decision in Polius, the paradigm for analyzing the warrantless search and seizure of cellular devices incident to arrest was the briefcase and analogous containers such as wallets and purses. The point is made that cellphones are sophisticated devices which have a capacity for storing an infinite variety and amount of personal information in which there is a high expectation of privacy by the owner. The contents of a briefcase, purse or wallet are finite while the contents of a cellphone and other electronic devices are potentially infinite. A cellphone can continue to provide incriminating evidence after it has been seized because of its transmitting ability.

62Trafford J., in para. 47 of his reasons in Polius, observed that a warrant is required to search a locked briefcase and that [page97 ]"[a] cellphone is the functional equivalent of a locked briefcase in today's technologically sophisticated world".²

63The appellant also relies on observations made by Fuerst J. in R. v. Little, [2009] O.J. No. 3278, 2009 41212 (S.C.J.) concerning the distinction between briefcases and cellphones. It is important to note that in Little, the judge concluded, at para. 147, that the cellphone in issue "functioned as a mini-computer", the contents of which "were not immediately visible to the eye" and were "extracted by a police officer with specialized skills using specialized equipment".

64Counsel for the intervenor the Canadian Civil Liberties Association submits that cellphones should be excluded from warrantless searches incident to arrest except in exigent circumstances. The Civil Liberties Association would not permit even a cursory examination of the contents of cellphones.

65Counsel for the intervenor the Criminal Lawyers' Association of Ontario takes the position that a cursory examination is acceptable for the limited purpose of determining whether there is evidence relevant to the alleged crime. However, after the cursory look, the examination should cease and a search warrant obtained.

66Counsel for the respondent supported by counsel for the director of Public Prosecutions submits that the law in respect of search incident to arrest does not require a paradigm shift in the thinking of the court or a carve out of a cellphone exception to the police power to search incident to arrest.

67The respondent argues that placing cellphones in the exceptional category is "overly simplistic and illogical". The nature of information that may be stored in a cellphone is no different than the kind of information that people carry in tangible form in briefcases, purses or other similar containers. In all of these cases, the potential for discovering highly personal information exists. The fact that there may be more such information in a cellphone ought not to justify the creation of a cellphone exception. The respondent relies on the British Columbia decision in R. v. Giles, [2007] B.C.J. No. 2918, 2007 BCSC 1147 in support of this position. [page98 ]

68Counsel for the respondent further submits that the Supreme Court of Canada has never defined the scope of search incident to arrest by the kind of item searched. Counsel argues that the Supreme Court has limited search incident to arrest in two cases: the first situation is when personal body integrity is the subject of a search: see R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34 and R. v. Golden, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 2001 SCC 83. The second situation is the search of a person's home: see R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743, [1997] O.J. No. 3097 (C.A.) and R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49.

(iv) Conclusion on the proposed cellphone exception

Conclusion on the Proposed Cellphone Exception

69Much of the argument in this case, both here and in the court below, focused on Polius. The appellant argued that the reasoning in Polius should apply in this case. Counsel for the respondent distinguished Polius from the case at bar. The director of Public Prosecutions, on the other hand, took the position that Polius was wrongly decided.

70I agree that Polius is distinguishable from this case. In Polius, the arresting officer received his instructions from a senior officer who did not brief him on the circumstances of the alleged offence. When the cellphone was seized on arrest, the arresting officer had no instructions to seize it and no reason to believe that it would contain relevant evidence.

71The cellphone in Polius was turned over the next day to a technician of the Toronto Police Service who conducted an examination of the phone over two or three days without obtaining a search warrant. The technician prepared a 15-page report that included an appendix of over 200 pages of the information in the defendant's cellphone. Given the facts of Polius, it is not surprising that Trafford J. concluded it was a case that called for a search warrant.

72The problem I have with the appellant's position and, in particular, the position of the Canadian Civil Liberties Association is that it would appear to mark a significant departure from the existing state of the law on the basis of a record that does not suggest it is necessary. While I appreciate the highly personal and sensitive nature of the contents of a cellphone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case. The facts of this case, with the correct application of the existing law, suggest that the search and seizure of the cellphone at the scene of the arrest were [page99 ]carried out appropriately and within the limits of the law articulated by the Supreme Court in Caslake.

73In this case, it is significant that the cellphone was apparently not password protected or otherwise "locked" to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cellphone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased.

74The appellant directed this court to statements made by the trial judge in Little, where she concluded, at para. 147, that the cellphone in issue "functioned as a mini-computer". Furthermore, the court in Little found that the contents of the cellphone "were not immediately visible to the eye" and were "extracted by a police officer with specialized skills using specialized equipment". There was no suggestion in this case that this particular cellphone functioned as a "mini-computer" nor that its contents were not "immediately visible to the eye". Rather, because the phone was not password protected, the photos and the text message were readily available to other users.

75If the cellphone had been password protected or otherwise "locked" to users other than the appellant, it would not have been appropriate to take steps to open the cellphone and examine its contents without first obtaining a search warrant.

76In short, I find myself in the same position as this court found itself in Manley. To quote from the reasons of Sharpe J.A. again [at para. 39], it is "neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest".

77It may be that some future case will produce a factual matrix that will lead the court to carve out a cellphone exception to the law as articulated in Caslake. This is not that case. To put it in the modern vernacular: "If it ain't broke, don't fix it."

(v) The application of s. 24(2) of the Charter

The Application of Section 24(2) of the Charter

78In the event that I am found to be in error concerning the s. 8 analysis, I agree with the trial judge's s. 24(2) conclusion. I see no error in her application of the principles articulated in Grant and I agree that the admission of the evidence from the cellphone would not bring the administration of justice into disrepute. [page100]

(b) The admissibility of the appellant's statements to police

The Admissibility of the Appellant's Statements to Police

79I see no basis to interfere with the trial judge's finding that the appellant's statements to the police were voluntary. I agree with her finding that there was no atmosphere of oppression while he was detained in an interview room for several hours. It appears, for at least part of that time, he was asleep. While he waited in the interview room, the appellant decided that he wanted to plead guilty as soon as possible the next day. There certainly was no pressure to force him to come to that conclusion.

80It was unfortunate that the appellant was denied his s. 10(b) rights during the period of delay. However, the trial judge found that the denial was not intentional. Accordingly, it did not affect the voluntariness of his statement.

81In deciding to admit the evidence of the police statements, in spite of the breach of s. 10(b), the trial judge undertook the appropriate s. 24(2) analysis in accordance with Grant and concluded that the evidence would not bring the administration of justice into disrepute. I agree with her conclusion.

Conclusion

82In the result, I would dismiss the appeal.

Appeal dismissed.

Notes

1 I note that the release of the trial judge's reasons in respect of the cellphone search pre-dated this court's decision in R. v. Manley, [2011] O.J. No. 642, 2011 ONCA 128, 269 C.C.C. (3d) 40 by almost two months. Since it was not argued before the trial judge, I will defer my comments on Manley until my analysis of the issues on appeal.

2 Counsel for the director of Public Prosecutions challenges this as an inaccurate statement of the law. Trafford J. referred to R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279 (C.A.), where the court held in the particular circumstances of the case that an unlocked briefcase could be searched as incident to arrest. It was suggested by counsel that Trafford J. simply concluded that a locked briefcase required a search warrant.

End of Document

Introduction