is a leading section 8 Canadian constitutional law case, concerning the constitutionality of warrantless law enforcement searches of the contents of a cell phone incident to arrest.
Background
The appellant, Kevin Fearon, and an accomplice robbed a jewelry merchant and fled in a black getaway vehicle. A police investigation resulted in Fearon's arrest that night. At the time of Fearon's arrest, police had not yet recovered the handgun Fearon used to commit the robbery or the jewelry he stole. Police conducted a pat-down search of Fearon incident to arrest and, discovering an unlocked, unencrypted cell phone on his person, searched the phone. The arresting officer did not have a warrant to search the phone at that time. The search revealed, inter alia, a draft text message reading “We did it were the jewelry at nigga burrrrrrrrrrr” and a photograph of a handgun that matched a handgun later recovered by police. Fearon was charged with robbery with a firearm and related offences. Police obtained a warrant to search the phone several months after Fearon's arrest but did not uncover any new evidence.
The courts below
At trial, Fearon argued that the police search of his cell phone incident to arrest was unconstitutional, violating section 8 of the Charter, and moved for the evidence to be excluded under section 24(2) of the Charter. The trial judge convicted Fearon of robbery with a firearm, holding that the police had a "reasonable prospect of securing evidence of the offence for which [Fearon] was being arrested" and that the information stored in the cell phone, while private, was not "so connected to the dignity of the person" to limit the police's common-law power of search incident to arrest. The trial judge admitted the evidence found on the cell phone, finding that its exclusion would undermine the judicial system.
The Ontario Court of Appeal, agreeing to hear Fearon's appeal, unanimously upheld the conviction in a decision written by Justice Armstrong, holding that a cursory cell phone search fell within the common-law doctrine of search incident to arrest set out in R v Caslake.
Fearon appealed to the Supreme Court of Canada.
Judgment of the SCC
The Supreme Court dismissed Fearon's appeal in a 4–3 decision. All seven justices of the Court agreed that cell phones without passcode protection have no less of a privacy interest than passcode-protected phones. However, the Court was split as to whether the common-law doctrine of search incident to arrest justified a search of the contents of a cell phone.
Majority
A majority of the Supreme Court, led by Cromwell J, affirmed the validity of the search incident to arrest framework as set out in R v Caslake and R v Golden. The majority found that the search of Fearon's cell phone was conducted subsequent to a lawful arrest and was truly incidental to the arrest, as it was conducted to locate the handgun, thus ensuring public safety; to locating the stolen jewelry, thus avoiding the loss of evidence; and to obtain evidence about the crime and any accomplices to the robbery.
Next, the majority determined that the common-law doctrine of search incident to arrest—a power granting police the opportunity to conduct a search without a warrant or without reasonable and probable grounds—should be modified to comply with section 8 of the Charter. The majority rejected an outright categorical prohibition on warrantless cell phone searches incident to arrest, finding that this would conflict with valid law enforcement objectives, including police and general public safety, and noting that a cell phone search is not necessarily a significant privacy invasion. The majority equally rejected a moderate approach that would require reasonable and probable grounds for a cell phone search incident to arrest, again finding that this would hamper and undermine law enforcement objectives. The majority also dismissed an approach that would allow cell phone searches incident to arrest only in exigent circumstances, finding that this would "effectively gut" police powers and would conflict with established Supreme Court jurisprudence on this issue.