In R. v. Fearon, 2014 SCC 77 , issued on Dec. 11, 2014, the Supreme Court of Canada held that the common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, with some added safeguards in order to make that power compliant with s. 8 of the Charter.
Four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8. First, the arrest must be lawful. Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are: protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.
Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified. Fourth, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration.
In this case, the initial search of the cell phone breached the s. 8 rights of the accused. Although the search was truly incidental to the accused's arrest for robbery, was for valid law enforcement objectives, and was appropriately linked to the offence for which the accused had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking. However, despite that breach, the evidence obtained from the accused's cell phone was not excluded.
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