•  
  •  
 

Abstract

The widespread use of smart phones and similar devices for data management has created significant constitutional and criminal law issues. This is evident in the context of protection by the Charter with respect to unreasonable search and seizure. When an individual’s section 8 rights are breached, an assessment of the admissibility of evidence under section 24(2) of the Charter is required. In R v Fearon, the Supreme Court of Canada established new limits on the police power to search cell phones and similar devices incident to arrest. Cromwell J stated that these measures do not “represent the only way to make searches of cell phones incident to arrest constitutionally compliant” and left open the possibility that law enforcement and privacy concerns may be balanced in numerous other ways. Further, the court commented that legislation may be desirable in this area. Karakatsanis J dissented, proposing an alternative mechanism for balancing individual privacy rights and law enforcement, namely the permission of warrantless searches only in exigent circumstances.

This article is helpful for readers seeking to learn more about:

  • search incidental to arrest, unreasonable search and seizure, cell phones, privacy interests and rights, law enforcement, warrantless searches, admissibility of evidence, Charter-protected interests, state conduct, societal interests, policy considerations, protecting the public, threshold for justification, personal data, infringing rights, limits of encroachment

Topics in this commentary include:

  • administration of justice, cursory searches, balance of competing rights and obligations, data spillover effects on innocent third parties, reasonableness standard, data-dump searches, pat-down search, vehicle search, Toronto Police Service, robbery, grounds for arrest

Authorities cited in this commentary include:

  • Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

  • R v Fearon, 2010 ONCJ 645

  • R v Fearon, 2013 ONCA 106

  • R v Fearon, 2014 SCC 77

  • R v Collins, [1987] 1 SCR 30

  • R v Golden, 2001 SCC 83

  • R v Stillman, [1997] 1 SCR 607

  • R v Manley, 2011 ONCA 128

  • R v Polius, [2009] OJ No 3074

  • R v Giles, 2008 BCSC 367

  • R v Hiscoe, 2013 NSCA 48

  • R v Mann, 2014 BCCA 231

  • R v Grant, 2009 SCC 32

  • R v Morelli, 2010 SCC 8

  • R v Caslake, [1998] 1 SCR 51