Supreme Court Of Canada Creates New Test For Police To Search Cell Phones Without A Warrant

On December 11, 2014, the Supreme Court of Canada released R. v. Fearon, a decision that addresses when police can search a cell phone in the course of a criminal arrest, without a warrant.1 Although Fearon does not directly address cell phone searches in schools, it provides significant insight into how educators should balance their legal duty to maintain proper order and discipline with the privacy interests of students.

Issue Before the Supreme Court

In Fearon, the Supreme Court considered whether the existing power for police to search pursuant to a lawful arrest extends to cell phone searches. Police were investigating the armed robbery of a jeweler by two armed men. When Mr. Fearon was arrested and given the usual pat-down search, police found a cell phone. Police searched his cell phone at that time, without a warrant, and found a draft text message referring to jewelry containing the words "we did it" and a photo of a handgun. That handgun was later found in the getaway car, and confirmed as the handgun from the robbery.

At his criminal trial for armed robbery, Mr. Fearon argued the evidence from the cell phone search was inadmissible because police did not have a warrant. Mr. Fearon challenged the cell phone search under section 8 of the Canadian Charter of Rights and Freedoms, which provides as follows2:

Everyone has the right to be secure against unreasonable search or seizure. The trial judge concluded that the photos and text messages were admissible, and Mr. Fearon was convicted. Mr. Fearon's appeal to the Ontario Court of Appeal was dismissed. His appeal to the Supreme Court of Canada was then heard, resulting in the Supreme Court's new test for cell phone searches.

The Supreme Court in Fearon was not unanimous in its decision. Four justices, in a majority decision written by Justice Cromwell, created a new test to permit cell phone searches without a warrant. The minority decision, written by Justice Karakatsanis, argued in favour of more restrictive conditions for cell phone searches without a warrant.

On the facts of Mr. Fearon's case, the majority of the Supreme Court decided that the cell phone search did not comply with the new test. However, the Supreme Court further concluded that the police acted reasonably and it was appropriate for public policy reasons to admit the evidence. His conviction was upheld.

New Test For Cell Phone Search

The existing common law framework for lawful search and seizure by police provides...