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R v. Fearon

This appeal concerns a core area of the BCCLA’s concern: an individual’s right to be free from unreasonable search and seizure. In this case, the Supreme Court of Canada will consider the legal authority of the police to search the contents of mobile phones seized incident to a lawful arrest. The hearing before the Supreme Court of Canada will take place on April 16, 2014.

The BCCLA is an intervener in this case. At the core of the BCCLA’s argument in this case is the profound privacy interest that individuals have in their mobile phones. Modern cell phones are portals to intensively private information, such as our photos, videos, notes, internet browsing histories, calendar, contact lists, and GPS location information, among other things. The BCCLA argues that a warrant should always be required because the contents of a cell phone are searched. Along with private information, cell phones – more than any other personal device – contain massive amounts of private communications. Police often search cell phones for the primary purpose of retrieving communications. Cell phone searches have become the modern-day equivalent of a wiretap on a phone. For this reason, the BCCLA argues that the police should not be allowed to search cell phones without the heightened prior judicial scrutiny required for the interception of private communications.

The BCCLA’s argument in this case can be found here.

The Supreme Court of Canada released its judgment in this case on December 11, 2014. The Court split 4:3, with the majority ruling that the common law power to search incident to lawful arrest allows the search of cell phones and similar electronic devices subject to some modification of the existing framework. The Court outlined four conditions that must be met for the search to comply with s. 8: (1) arrest must be lawful; (2) the search must be truly incidental to the arrest and done promptly upon arrest; (3) the nature and the extent of the search must be tailored to its purpose; and (4) the police must make notes of what they examined on the cell phone and on how they examined it.

The decision of the Supreme Court of Canada is available here.

The BCCLA is represented by Gerald Chan and Nader Hasan of Ruby Shiller Chan Hasan Barristers.

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