Do You Need to Fear the Fearon?
Leri Koornhof (1L)
You may have heard some nerdy 1Ls joking about cell phone searches incidental to arrest (SITA) and the famous incriminating SMS that sounds like a line from a terrible Carbolic spoof rap.
Do you Fear the Fearon? I don’t… but that’s because I lock my smartphone. Oh, and also because I don’t rob jewellery stores at gunpoint. But abstaining from crime is not the point; it’s privacy and civil liberty.
Professor Steven Penney’s presentation was well attended, mostly by 1Ls looking for perspective before their facta are due. Professor Penney criticized the Court’s ruling, which didn’t change much on SITA. He argued that it strains the relationship between the courts and Parliament. There is a perception that ordinary, upper-middle class, politically influential people could be affected. Then, there is the risk of racial profiling due to the disproportionate number of racial minorities as criminals.
The SITA power is a long-standing common law rule. To avoid obtaining a warrant, police need to conduct a lawful arrest and have reasonable, probable grounds that the cell phone can possibly give evidence of weapons or other information relating to the crime. The search should be of the accused’s belongings and the immediate vicinity of the arrest. The reason for the search must reflect imminent and exigent circumstances that preclude obtaining a warrant.
Fearon and his accomplices robbed jewelry and cash while armed with a gun. On arrest, the police found Fearon’s cell phone in a pat-down search. There was no password lock on his phone. The officer searched the content and found a picture of the gun and cash, as well as a text message between Fearon and another potential accomplice saying, “We did it. Where the jewelry at.” The police inferred the completion of the crime and suspected that the jewelry could be hidden or disposed of.
The defence sought to exclude the evidence on the basis of the section 8 Charter right to be free from unreasonable search and seizure. The SCC sought to limit SITA on four grounds. First, only recent, cursory content such as text messages, email, photos, and telephone logs can be searched. However, the Court has not qualified a time limit.
Second, it must relate to serious offences to persons or property, but how should the police decide which offences are serious enough? Third, the Crown must demonstrate that the police investigation would be stymied without the search in the interest of efficiency. Arguments in Fearon included the risk of losing the jewelry or having a gun on the streets. Professor Penney critiqued this, arguing that it is not really that imminent or exigent.
Finally, the police must include detailed notes of their search and the reasons for it, which raises questions as to where a court would draw the line on how detailed the notes must be and what information is to be included.
Thus, my advice remains: if you’re going to do something stupid, don’t record it on your cell phone.