(On Appeal from the Court of Appeal for Ontario) BETWEEN

48 Pages·2014·0.69 MB·English

SCC File No. 35298

IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for Ontario)

B E T W E E N:

KEVIN FEARON
Appellant

- and -

HER MAJESTY THE QUEEN
Respondent

_________________________________________________________

RESPONDENT’S FACTUM
(ATTORNEY GENERAL FOR ONTARIO)
_________________________________________________________

SAM GOLDSTEIN SUPREME ADVOCACY LLP
Sam Goldstein Marie-France Major
Criminal Lawyer Thomas Slade
880 Broadview Avenue 340 Gilmour Street, Suite 100
Toronto, ON M4K 2R1 Ottawa, ON K2P 0R3
Tel: [phone] Tel: [phone]
Fax: [phone] Fax: [phone]
Email: [email protected] Email: [email protected]
[email protected]

Counsel for the Appellant Ottawa Agent for the Appellant

RANDY SCHWARTZ ROBERT E. HOUSTON, Q.C.
Crown Law Office – Criminal Barristers and Solicitors
Ministry of the Attorney General 441 MacLaren Street, Suite 200
720 Bay Street, 10th Floor Ottawa, ON K2P 2H3
Toronto, Ontario M7A 2S9 Tel: [phone]
Tel: [phone] Fax: [phone]
Fax: [phone] Email: [email protected]
Email: [email protected]

Of Counsel for the Respondent Ottawa Agent for the Respondent
Attorney General for Ontario Attorney General for Ontario
TABLE OF CONTENTS

PART ONE: STATEMENT OF FACTS .................................................................................... 1
A. OVERVIEW ................................................................................................................. 1 - 3
B. THE FACTS ................................................................................................................. 3 - 6
PART TWO: THE POINTS IN ISSUE ...................................................................................... 6
(i) Should this Court create a new rule categorically excluding cell phones from the
search incident to arrest power? .......................................................................................... 6
(ii) Did the Court of Appeal for Ontario err in affirming the trial judge’s finding that
the warrantless examinations of the appellant’s cell phone data fell within the
proper ambit of the search incident to arrest power? .......................................................... 6
PART THREE: BRIEF OF ARGUMENT ................................................................................. 7
A. THE SEARCH INCIDENT TO ARREST POWER ...................................................... 7
1) THE ARREST MUST BE LAWFUL ...................................................................... 7 - 8
2) THE SEARCH MUST BE TRULY INCIDENTAL TO THE ARREST ................ 8 - 9
a) There Must be a “Reasonable Prospect” that One of the Valid Purposes
Underlying the Power is Engaged .................................................................... 9 - 11
b) There Must Be a Temporal Connection Between the Arrest and
the Search ....................................................................................................... 11 - 12
c) There Must Be a Spatial Connection Between the Arrest and the Search ..... 12 - 13
3) THE SEARCH MUST NOT BE CONDUCTED IN AN ABUSIVE FASHION....... 13
B. APPLYING THE SEARCH INCIDENT TO ARREST POWER TO CELL
PHONES .......................................................................................................................... 13
1) LIMITED SEIZURES OF CELL PHONES ........................................................ 13 - 14
2) LIMITED POST-SEIZURE EXAMINATIONS OF CELL PHONE DATA ...... 14 - 19
C. REJECTING THE APPELLANT’S POSITION ......................................................... 19
1) THE APPELLANT’S POSITION WOULD NOT SERVE THE PUBLIC
INTEREST .................................................................................................................. 19
a) Protecting Officer and Public Safety ..................................................................... 20
b) Identifying the Arrested Person............................................................................. 20
c) The Risk of Loss of Relevant Cell Phone Data ..................................................... 21
d) The Risk of Loss of Other Evidence .............................................................. 21 - 22
e) Taxing Scarce Police and Judicial Resources ................................................ 22 - 23
f) Slowing the Pace of Criminal Investigations ........................................................ 23
g) Depriving the Police of Relevant Evidence .......................................................... 23
2) THE APPELLANT’S POSITION IS CONTROVERSIAL........................................ 23
3) THE APPELLANT’S POSITION CONTRADICTS WELL-ESTABLISHED
PRINCIPLES OF SEARCH INCIDENT TO ARREST ............................................. 26
a) The Appellant Seeks To Reshape the Search Incident to Arrest Power ........ 26 - 27
b) The Appellant’s Position is Inconsistent with the Recognized Exceptions to
the Search Incident to Arrest Power ............................................................... 27 - 29
4) THE APPELLANT’S POSITION CREATES ANOMALIES IN THE LAW
WHICH MAY BE INCONSISTENT WITH CHARTER VALUES ................... 29 - 31
5) THE APPELLANT’S POSITION IS UNSUPPORTED BY
INTERNATIONAL AUTHORITY ..................................................................... 32 - 33
D. REJECTING OTHER VERSIONS OF A “CELL PHONE EXCEPTION” TO
THE SEARCH INCIDENT TO ARREST POWER .................................................... 33
1) Distinguishing Between Cursory and Comprehensive Searches ......................... 33 - 34
2) Distinguishing Between Different Devices: Smart Phones vs. Dumb Phones .... 34 - 36
3) Distinguishing Locked from Unlocked Cell Phones ............................................ 36 - 37
E. APPLICATION OF THESE PRINCIPLES TO THE FACTS .................................. 37
PART FOUR: SUBMISSIONS ON COSTS ............................................................................. 40
PART FIVE: ORDER REQUESTED ....................................................................................... 40
PART SIX: TABLE OF AUTHORITIES .......................................................................... 41 - 44
PART SEVEN: STATUTES, REGULATIONS, RULES........................................................ 45
PART ONE:
STATEMENT OF FACTS

A. OVERVIEW

1. The appellant invites this Court to create an unprecedented bright-line rule precluding, in all
but exigent circumstances, any and all warrantless examinations of cell phone data incident to
arrest.

2. According to the appellant, cell phone data are so uniquely private, and the need to protect
them is so uniquely great, that the only solution is to deprive the police of quick access to the
data when they need it most: in the minutes and hours following an arrest, when, as in this case,
the police are urgently chasing down dangerous accomplices, attempting to get firearms off the
street so they can do no further harm, recovering recently stolen property before the trail goes
cold, and otherwise serving the public interest through swift and effective law enforcement.

3. This Court should reject the appellant’s position. It bears many hallmarks of a bad law. It
would not serve the public interest because it would compromise investigations of serious
offences and imperil officer safety. It is controversial. It contradicts well-established principles
of search incident to arrest. It creates anomalies in the scope of the search incident to arrest
power which are arbitrary and may be inconsistent with Charter values. And it is unsupported
by international authority.

4. Rejection of the appellant’s position does not imply that the police have an untrammeled
right to examine indiscriminately all of the data on a cell phone seized incident to any arrest
without a warrant, whenever and for whatever purpose they choose. The search incident to arrest
power should not be so broadly construed. It is subject to several well-recognized limits. When
these limits are applied to cell phones in a manner that properly accounts for their character as
repositories of large amounts of private information, they should apply not only to the
circumstances in which the police may search for and seize a cell phone incident to arrest, but
also to the manner in which the police may examine the cell phone thereafter. In particular:
2

Search for and Seizure of a Cell Phone Incident to Arrest:

 A cell phone may only be searched for and seized incident to arrest when the arrest is lawful.
 A cell phone may only be searched for and seized if it is in the possession or immediate
surroundings of the accused at the time of the arrest.
 A cell phone may only be searched for and seized in temporal proximity to the arrest.
Searches and seizures that occur after unexplained lengthy delays are generally not truly
incidental to arrest.
 If, as in the present case, the justification for a search incident to arrest is the discovery of
evidence (as opposed to officer or public safety or preventing the destruction of evidence), a
cell phone may only be searched for and seized if there is some reasonable prospect that it
contains evidence of the offence of arrest.
 The search and seizure must be carried out in a reasonable manner. Unduly invasive or far-
reaching searches will never be justified incident to arrest.

Examination of the Data on a Cell Phone that Is Seized Incident to Arrest
 Broad and sweeping post-seizure examinations for cell phone data unrelated to the arrest will
never be authorized by the search incident to arrest power. The examinations of cell phone
data must be strictly limited to targeted examinations aimed at finding relevant data. Judicial
authorization is required if the police wish to search for data relevant to other offences.
 There must be a reasonable temporal connection between the examinations of cell phone data
and the arrest, such that the examinations are truly incidental to arrest. Examinations of cell
phone data that take place long after an arrest without explanation, and that are based on
evolving post-arrest investigative needs and leads, will likely not be sufficiently related to the
arrest.
 Post-seizure examinations of cell phone data must be carried out reasonably. Examinations
of cell phone data that are unduly broad or unfocused, or that are conducted without due
regard to the privacy interests implicated by the examinations, are not lawful under the
search incident to arrest power.

5. This approach significantly distinguishes the treatment of cell phones from that of traditional,
tangible seized items. For traditional, tangible seized items, the limits of the search incident to
arrest power apply only to the search for and seizure of the item, not to its post-seizure
examination. As a rule, a post-seizure examination of a lawfully seized item will not be limited
to the specific purposes of the arrest. For cell phones, this rule must yield to the privacy interests
impacted by the post-seizure examination of cell phone data, by requiring that the examination
3

must itself be truly incidental to arrest. In contrast to the appellant’s position, this approach
respects the time-honoured limits of the search incident to arrest power and applies them in a
measured manner that appropriately accounts for the right to privacy in the digital era, without
sacrificing the vital public interest in effective and efficient law enforcement.

B. THE FACTS

6. The appellant was convicted of robbery with a firearm and related offences. The victim of
the robbery operated a jewellery stall at a flea market.1 On July 26, 2009, at approximately 6:15
p.m., she was robbed by two assailants, one of whom was armed with a handgun. The robbers
grabbed her jewellery and other belongings and then fled in a waiting car. The police were on
the scene almost immediately. Eyewitnesses described identifying features of the robbers and
one eyewitness provided the licence plate number of the getaway car. Minutes later, the police
found the getaway car parked nearby. The car was registered to the appellant’s co-accused,
Junior Chapman.2 Looking through the window, the police saw clothing consistent with that
worn by one of the robbers.3 The car was sealed pending a search warrant.4

7. Based on the description of the robbers, one of the investigating officers suspected that the
appellant, who lived in the neighbourhood, may have been involved.5 The officer then learned
that the owner of the getaway car, Mr. Chapman, had a previous association with the appellant.6
The officer drove to the appellant’s apartment building to investigate. Shortly after he arrived,
he saw the appellant and Mr. Chapman leave the building together. The officer investigatively
detained them, at which point Mr. Chapman lied about his identity and was arrested for
obstructing police. Hold-Up Squad officers then arrived and, at 9:15 p.m. (three hours after the
robbery), arrested the appellant and Mr. Chapman for the robbery.7

1 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 5 at para. 4
2 Ibid., p. 5 at paras. 4-7
3 Oleskiw J., Reasons for Judgment, Record of the Appellant, p. 18
4 Ibid., p. 18
5 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 5 at para. 8
6 Ibid., p. 5 at para. 8
7Ibid., pp. 5-6 at paras. 9-14
4

8. The officer who arrested the appellant conducted a pat-down search incident to arrest for the
purposes of officer safety and discovering evidence. He located a cell phone and seized it
incident to arrest. The phone was on and it was not password protected. The officer looked
through its contents at the roadside and found photos of the appellant and a handgun, and an
incriminating text message about the robbery.8 In order to see the photos and the text message,
the officer had to use the keypad on the phone to activate the functions on the phone (the photos
and text message were not in plain view).9 The examination was brief; it took minutes, at most.10
Having seen the photos and the text message, the officer retained possession of the phone and
returned to the stationhouse.11

9. Back at the stationhouse, the arresting officer briefed the Hold-Up Squad officers about what
he had seen in the phone. The arresting officer showed the Hold-Up Squad officers a text
message which stated: “We did it were the gewlery at nigga burrrrrrr.” The briefing took place
at 10:50 p.m. (approximately 1 ½ hours after the arrest).12

10. The Hold-Up Squad officers believed that they were entitled to examine the data on the
phone incident to arrest without first obtaining a search warrant. They testified that they had
grounds to examine the phone for relevant information. They explained that examination of the
phone was the right thing to do because there was a firearm somewhere out in the community
that had to be taken “off the street”,13 there was stolen property that had to be recovered quickly
or it would not be recovered at all, and there were additional suspects to be apprehended.
Analysis of the contents of the phone would assist with these investigative goals.14

11. Accordingly, at 10:50 p.m. (approximately 1 ½ hours after the arrest) one of the Hold-Up
Squad officers took possession of the phone and quickly tried to determine whether the

8 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p.6 at paras. 19-23; Testimony of
Sgt. Stephen Hicks, Respondent’s Record, Volume I, pp. 34-40.
9 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 6 at paras. 22, 24; Testimony of
Sgt. Stephen Hicks, Respondent’s Record, Volume I, pp. 44-45
10 Testimony of Sgt. Stephen Hicks, Respondent’s Record, Volume I, p. 35
11 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 6 at para. 24
12 Testimony of Sgt. Stephen Hicks, Respondent’s Record, Volume I, p. 31
13 Testimony of DC Brett Nicol, Respondent’s Record, Volume II, p. 114
14 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 7 at para. 27
5

incriminating text message had been sent to anyone, as this would further the investigation. His
examination of the phone took two minutes at most. He concluded that the text message was a
draft that had not been sent.15 He handed the phone back to the arresting officer and told him to
look through it for recent calls or contacts.16 Over the course of the night and early into the next
morning, additional checks of the phone were conducted, but, in the end, the only data from the
phone relied upon by the Crown in support of its case were the photos of the gun and the
appellant, and the incriminating text message about the robbery.17 All warrantless checks of the
phone were complete by 2:50 a.m. (approximately 5 ½ hours after the arrest) at the very latest.18

12. Following his arrest, the appellant confessed to robbing the victim, but he insisted that the
gun was a toy that he had discarded after the robbery. The police searched the area where the
appellant claimed to have discarded the toy gun but they found nothing. Subsequently, the
police searched the interior of the getaway car and found a handgun matching the description of
the gun used in the robbery. It was not a toy. It was a .22 calibre handgun, with its serial
number removed, which was loaded with two rounds of ammunition. It had distinctive features
which matched those of the gun depicted in the appellant’s cell phone photograph.19 In a
knapsack on the rear seat the police also found two dark bandanas and a neoprene mask. One of
the bandanas had Mr. Chapman’s DNA on it.20

13. Many months after the arrest, long after the phone was initially seized and its data was
initially examined, one of the Hold-Up Squad officers came to believe that there was a judicial
decision that a search warrant was required to download the contents of a cell phone. So he
applied for a search warrant. He ensured that the Information to Obtain the warrant disclosed the
prior examinations of the data on the phone because he wanted to make full, frank and fair
disclosure to the issuing justice.21 The search warrant was issued, the phone was re-examined,

15 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 6 at para. 24
16 Testimony of DC Maher Abdel-Malik, Respondent’s Record, Volume I, pp. 92-94
17 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, pp. 5, 7 at paras. 2, 25
18 Testimony of DC Maher Abdel-Malik, Respondent’s Record, Volume I, p. 137
19 Oleskiw J., Reasons for Judgment, Record of the Appellant, pp. 17-19
20 Ibid., pp. 27-28
21 Testimony of DC Brett Nicol, Respondent’s Record, Volume II, p. 23
6

and the photos and text message relied upon by the Crown in support of its case were, once
again, produced.22 The defence at trial did not challenge the issuance of the search warrant.23

PART TWO:
THE POINTS IN ISSUE

14. This case raises the following issues:

(i) Should this Court create a new rule categorically excluding cell phones from the
search incident to arrest power?
15. No. The search incident to arrest power permits police to conduct targeted examinations for
relevant cell phone data. The appellant’s proposed categorical rule precluding, in all but exigent
circumstances, any warrantless examinations of cell phone data does not strike a reasonable
balance between individual privacy and the pressing societal interest in the effective enforcement
of the law.

(ii) Did the Court of Appeal for Ontario err in affirming the trial judge’s finding that
the warrantless examinations of the appellant’s cell phone data fell within the
proper ambit of the search incident to arrest power?
16. No. The trial judge correctly held that the warrantless examinations of the appellant’s cell
phone data, all of which were conducted within hours of his lawful arrest, were properly
incidental to the arrest. The police were reasonably attempting to discover relevant evidence,
recover a firearm and stolen property, and identify and apprehend potentially dangerous
accomplices. There were good reasons to think that targeted searches of the data in the
appellant’s cell phone would assist with these important investigative goals.

22 Oleskiw J., Reasons for Ruling on Cell Phone Search, Record of the Appellant, p. 7 at paras. 29-30
23 Defence Acknowledgement, Respondent’s Record, Volume II, pp. 124-126
7

PART THREE:
BRIEF OF ARGUMENT

A. THE SEARCH INCIDENT TO ARREST POWER

17. Warrantless searches are prima facie unreasonable under section 8 of the Charter. Where a
search is conducted without prior judicial authorization, the Crown bears the burden of showing
that it was reasonable. In order to meet this burden, the Crown must show that:
1) the search was authorized by a recognized warrantless search power,
2) the law itself is reasonable, and
3) the search was conducted in a reasonable manner.24

18. There are several statutory and common law search powers that the Crown may rely upon as
authority for a warrantless search. One of them is the well-established common law police
power to search incidental to arrest.

19. This Court has held that the search incident to arrest power is a broad one which “is
eminently sensible and is essential for the protection of police officers carrying out their all too
often dangerous duties.”25 It grants police “considerable leeway in the circumstances of an arrest
which they do not have in other situations.”26 But as broad as it is, it is limited in scope.
According to the existing, time-worn test for a valid search incident to arrest, three conditions
must be met: 1) the arrest must be lawful; 2) the search must be truly incidental to the arrest; and
3) the search must not be carried out in an abusive fashion.27

1) THE ARREST MUST BE LAWFUL

20. A search incident to arrest must always flow from a lawful arrest.28 The application of the
search power is thus necessarily limited to the narrow class of individuals who the police

24 R. v. Collins, [1987] 1 S.C.R. 265 at para. 23
25 R. v. Stillman,[1997] 1 S.C.R. 607 at para. 33
26 R. v. Caslake, [1998] 1 S.C.R. 51 at para. 20
27 Ibid. at paras. 13-14
28 Ibid. at para. 13; R. v. Stillman,[1997] 1 S.C.R. 607 at para. 27; Cloutier v. Langlois, [1990] 1 S.C.R. 158 at paras.
51-52