SCC File No.: 35298
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
KEVIN FEARON
APPELLANT
(Appellant)
-andHER MAJESTY THE QUEEN
RESPONDENT
(Respondent)
FACTUM OF THE APPELLANT
(KEVIN FEARON, APPELLANT)
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
SAM GOLDSTEIN
880 Broadview Avenue
Toronto, ON M4K 2R1
SUPREME ADVOCACY LLP
340 Gilmour Street, Suite 100
Ottawa, ON K2P 0R3
Sam Goldstein
Shelley Flam
Tel.: (416) 927 1211
Fax: (416) 960 4671
Email: [email protected]
Marie-France Major
Thomas Slade
Tel.: (613) 695-8855
Fax: (613) 695-8580
Email: [email protected]
[email protected]
Counsel for the Applicant, Kevin Fearon
Ottawa Agent for Counsel for the Applicant,
Kevin Fearon
ATTORNEY GENERAL OF ONTARIO
720 Bay St. , 10th Flr.
Toronto, Ontario M5G 2K1
BURKE ROBERTSON LLP
441 MacLaren Street, Suite 200
Ottawa, ON K2P 2H3
Randy Schwartz
Tel.: (416) 326-4586
Fax: (416) 326-4656
Email: [email protected]
Robert E. Houston, Q.C.
Tel: (613) 236-9665
Fax: (613) 233-4195
Email: [email protected]
Counsel for the Respondent, Her Majesty
the Queen
Ottawa Agent for the Counsel for the
Respondent, Her Majesty the Queen
TABLE OF CONTENTS
PART I – OVERVIEW AND STATEMENT OF FACTS .........................................................1
THE EVIDENCE AT TRIAL....................................................................................................3
THE JUDICIAL HISTORY ......................................................................................................6
Trial Level ............................................................................................................................6
On Appeal ............................................................................................................................8
STATEMENT OF THE LAW .................................................................................................10
The Law on SITA ..............................................................................................................10
The State of the Law of SITA in Canada and its Extension to Cell-phones ......................11
PART II –STATEMENT OF ISSUES .......................................................................................16
PART III – STATEMENT OF ARGUMENT...........................................................................16
A. Should the traditional SITA framework as articulated in Caslake be extended
to cell-phones? .............................................................................................................17
B. Should the traditional SITA framework be limited by a ‘cursory inspection’ in
order to save a traditional SITA from offending Section 8 of the Charter? ................22
C. Did the SITA of Mr. Fearon’s cell-phone breach section 8 of the Charter? ................29
PART IV – SUBMISSION ON COSTS .....................................................................................31
PART V – ORDER REQUESTED.............................................................................................31
PART VI – TABLE OF AUTHORITIES ..................................................................................32
PART VII – STATUTORY PROVISIONS ...............................................................................33
“The task of adapting laws that were a product of the 1970s to a world of
smartphones and social networks is a challenging and profoundly important one.”
R v. TELUS Communications Co., 2013 SCC 16 found at paragraph. 53.
PART I – OVERVIEW AND STATEMENT OF FACTS 1
1.
In this appeal, the digital-age meets the law of search incident to arrest. The encounter
raises a novel issue: does the traditional framework for a search incident to arrest require some
updating in order to protect the unique privacy interests that are at stake in seizures and searches
of cell-phones found on arrested persons? The traditional legal framework holds that a police
officer can lawfully search, without warrant, any receptacles, such as a bag, purse, or briefcase,
found on, or reasonably near an arrested person, within a reasonable duration of time after the
arrest, as long as the officer has grounds to believe that the warrantless search may result in
evidence of the crime for which the person is being arrested. The question before this Court is
whether this framework is appropriate for cell-phone searches; in short, should the law of search
incident to arrest treat a cell-phone as if it were a bag, purse, or briefcase?
2.
In the appellant’s view, it should not because all cell-phones are sui generis. They differ
in important ways from the receptacles governed by the traditional framework and cell-phone
searches incident to arrest give rise to particular privacy concerns that are not sufficiently
addressed by that framework.
3.
Moreover, even an elaboration of the traditional framework that limit searches of cell
phones incident to arrest to cursory inspections before then requiring a warrant assume that a
police officer can take into account the privacy interests that might be compromised by the
warrantless search of a cell-phone found on or near that person. This can only be assured if, as
this Court has expressed, a search has pre-authorization.
4.
In practical terms, the requirement of prior authorization means that if police intend to
search a cell-phone found on or near a person they are permitted to seize it but then they must
satisfy an authorizing justice that they have grounds to believe that they will discover the things
1
This Court granted leave to appeal in this case on the limited issue of the cell-phone search.
2
for which they are looking. The appellant allows for only one exception to this general rule and
that is if there are exigent circumstances. In that circumstance, the police are permitted to seize
and search a cell-phone incident to arrest. In this one circumstance, a post hoc justification
before a trial judge is reasonable.
5.
The traditional framework dates back to 1998, in R. v. Caslake 2, when this Court last
looked at searches incident to arrest (SITA). Interestingly, back then it too was for the purpose
of updating SITAs but at that time it was to update them in order to conform to the privacy
interests as guaranteed by section 8 of the Charter. Previously, the law of SITA had been
governed by the common law as articulated in this Court’s decision in Cloutier v. Langlois 3. In
the ensuing 15 years since Caslake, courts have extended the framework in that decision to
various receptacles found by the police on an arrested person such as bags, purses and
briefcases.
6.
However, the appellant argues that the Caslake framework for a SITA cannot be
extended to cell-phones because the privacy interests in searches of cell-phones are markedly
different from those at stake in searches of receptacles such bags, purses, and briefcases. This is
for the identical reasons that this Court arrived at in R v. Vu 4 in differentiating the privacy
interests involved in computer searches from the privacy interests involved in searches of
“cupboards and filing cabinets”.
7.
Cell-phone searches potentially give police access to vast amounts of information in
digital form that a user may want to keep private and that the user cannot control, that they may
not even be aware of, or may have chosen to discard which may not be, in any meaningful
sense, located in the place of the search.
8.
A ‘cursory inspection’ will always risk the problem of over-breadth. Digital information
cannot be easily extracted from a cell-phone nor can it be easily seen. An officer must enter
each various function of a phone or each different application to search for evidence. This is
2
[1998] 1 SCR 51 [Book of Authorities (“BA”) Tab 4]
[1990] 1 SCR 158 [BA Tab 1]
4
R v. Vu, [2013] SCC 60 [BA Tab 22]
3
3
unlike a police officer momentarily opening a briefcase, peeking inside, and quickly snatching a
notebook.
9.
Moreover, cell-phones reduce the urgency to search without a warrant because digital
information is not perishable and it cannot harm an officer. In other words, cell-phones
minimize law enforcement reasons that otherwise save warrantless searches incident to arrest
from offending section 8 of the Charter.
10.
This Factum will turn now to the evidence before the trial judge in this case followed by
the judicial history of this case.
THE EVIDENCE AT TRIAL
11.
The learned trial judge, Justice Oleskiw of the Ontario Court of Justice, made the
following findings of fact regarding the search of Mr. Fearon’s cell-phone: 5
15
At 9:01 p.m., Sgt. Hicks and P.C. Ge were the first officers to arrive on
scene near 3390 Keele to assist Reynolds. Sgt. Hicks was a road sergeant with the
Community Response Unit at 31 Division. He monitored the radio call about the
robbery occurrence and had already attended at two other locations to investigate
the robbery prior to arriving at 3390 Keele.
16 Hicks also monitored the radio call from Reynolds indicating that Reynolds
required back up because he was on his own on foot following two males
matching the description of the robbery occurrence and that he had some
information that they may be related to the call.
17
Hicks received information from Reynolds and then Hicks and Ge spoke
with Mr. Fearon while Reynolds dealt with Mr. Chapman. Hicks advised Fearon
that he was being investigated "because we have information that they may be
related to the incident and we had other information that officers had just seized a
vehicle a short distance away ... that was being secured that may have had
evidence in it and that it was all in close proximity and we wanted to investigate
to see if they had any involvement in that."
18
Hicks advised Fearon that he was being detained for armed robbery in the
area and he had a conversation with Fearon about his whereabouts in the last part
of the day. Other uniformed officers came on scene and the holdup officers also
arrived. Detectives Nicol and Abdel-Malik had a conversation with Reynolds
after which Reynolds advised Hicks that both males are arrestable.
5
R v. Fearon, [2010] O.J. No. 5745 [Appellant’s Record (“AR”) Tab 2].
4
19 At 9:15 p.m. Hicks placed Fearon under arrest and read his rights to counsel.
Officer Ge placed Fearon in handcuffs and escorted him to the police vehicle.
Hicks then conducted a pat down search of Mr. Fearon "for the purposes of safety
and for possible evidence". This search was conducted on the sidewalk. At this
time Sgt. Hicks located a black and silver TELUS cell-phone, model LG285 in
Mr. Fearon's right front pants pocket.
20 Once Hicks had the phone from the pocket and finished the search, he "had
a look through the cell-phone, saw some things in that cell-phone, and seized it at
that point in time as evidence in relation to the investigation". He could not recall
specifics, but believed that he found some photos in the cell-phone at the time,
including photos of males and a photo of a gun.
21 Hicks testified that the cell-phone was "on" when he flipped it open to look
at the contents. He was looking to see if there was any evidence that might be on
there, so he could take it under control for himself or to let somebody else know
who may be doing the investigation that there are things on that phone that may
be related to their ongoing investigation.
22
He explained that he manipulated the keypad to the extent that he entered
into different modes to access text messages and photographs on the phone. There
is no suggestion in the evidence that any of the information Sgt. Hicks accessed
was protected by passwords or other encryption or security protection.
23
Sgt. Hick's examination of the phone occurred at the scene of the arrest,
outside of the police van. Mr. Fearon was placed in the police van at 9:24 and
they arrived at 31 Division at 9:29 p.m. Hicks believed there were calls coming in
to the phone during transport.
24 Sgt. Hicks kept the cell-phone in his pocket during transport to 31 Division
and he kept custody of it until approximately 10:48 p.m. At that time, he showed
the contents to Abdel-Malik. Hicks had the phone open and the text message on
the screen read: "We did it were the jewlery at nigga burrrrrrrrrrr". At this time,
Abdel-Malik immediately wanted to know if the message had been sent to anyone
because it would assist in the investigation. When he tried to look at the options, a
screen came up asking if he would like to save this. Abdel-Malik hit "save" and
concluded that the message had not been sent yet. By hitting "save", he intended
to save the message in the memory of the phone so they would not lose it. Then,
he did "some quick checks" to see if it had been sent to anybody else and then
gave the phone back to Sgt. Hicks when it appeared that it was not going to give
them an immediate lead. Abdel-Malik estimated that he inspected the cell-phone
for approximately two minutes at this time.
25 Hicks, Abdel-Malik and Nicol inspected the contents of the cell-phone a few
times throughout the night when other information led them to believe that there
should be more relevant information in the phone. At 1:18 a.m., Adbel-Malik
looked into the phone again after learning that there was third suspect who went
by the name of "Swipes" and that his contact number should be in the cell-phone.
Further, just before 2:50 a.m., officers were directed to check some of the phone
5
numbers called by Mr. Fearon to see if they led to possible associates including
the then unidentified "Swipes".
26
According to Detective Nicol, all inspection of the cell-phone on July 26,
2010 was done at his direction or with his approval. He would have made Hicks
aware that they were interested in the contents of the cell-phone and left AbdelMalik to inspect the contents of the cell-phone as he is more technically savvy.
According to Nicol, he requested Hicks and Abdel-Malik to look through the cellphone to see if there was any contact information that could lead to the identity of
the outstanding suspect or information leading to the outstanding firearm or
jewelry. He stated that the cell phone might have text messages or last calls that
would indicate persons they communicated with shortly after the robbery. Dtc.
Nicol explained:
… based on any text messages sent between them and a party assisting them
in hiding or moving stolen property, that would be something I'd want to
know right away so I could attempt to recover that evidence. If there was
other messages indicating locations and where they went after the robbery that
would be something I'd want to know because those are places I'd want to
investigate to see if there was evidence being jewelry or firearms, clothing
worn by the suspects, anything left behind at those addresses would be places
that we'd have to attend. Also, based on my experience, people take
photographs of things they steal, places that they go, targets of their offences.
27 Detective Nicol explained that he did not believe that he needed a warrant at
the time of July 26 and 27 searches of the content of the cell-phone because:
It's still an investigation where I'm looking for jewelry, I'm looking for
outstanding suspects, I'm looking for the gun that's outstanding, and I have
concerns that those items might go missing, destroyed and then I have the
chance to recover those items, that I'm able to look through that phone and
ensure that there's anything there to assist my investigation at the time, I can
use that information ...... it's property that they can move very quickly, be sold
very quickly, hidden any number of things that can happen to it and you have
to act quickly in order to recover it.
28
The cell-phone was put away and submitted to the Technological Crime
Forensics Lab for safekeeping on September 21, 2009.
29
On February 9, 2010, Detective Nicol obtained warrant to search and
download the information from the cell-phone. The Information to obtain the
warrant discloses the previous searches of cell-phone. Nicol testified that he
applied for a warrant in February 2010 because, at some point after this
investigation, he was told that there was a court decision that said that you now
need a search warrant to download and search phones. Although they used to
submit phones to the Technological Crime Unit for searches without a warrant,
after learning of this court decision, he believed that he could not submit the
phone to the Unit for downloading without a warrant.
6
30
A warrant was granted on February 9, 2010 to search the contents of the
cell-phone, including, (a) call data; (b) SMS (text) data; (c) Email data; (d)
Photographs; (e) Contact lists. It is common ground that the photographs and text
message originally viewed by Sgt. Hicks are the same items obtained as a result
of the search warrants and sought to be admitted.
THE JUDICIAL HISTORY
Trial level:
12.
Trial counsel for Mr. Fearon argued that the two searches of Mr. Fearon’s cell-phone (the
search at the scene of his arrest and the search back at the station) were not limited cursory
inspections on the facts; or, in the alternative, in law, that the warrantless ‘cursory inspection’
was a breach of the defendant’s Section 8 Charter right. 6 Both of these arguments required the
trial judge to accepting that Justice Trafford of the Ontario Superior Court’s obiter dicta in
Polius 7 elaborating that a Caslake SITA included a limited ‘cursory inspection’ should be the
state of the law in Ontario when it came to extending the traditional SITA framework to cellphones. Crown counsel argued that cell-phones had no higher expectation of privacy than any
receptacle. The fundamental issue before the trial court was should the traditional framework for
a SITA, as articulated in Caslake itself, be extended to a cell-phone. In other words, should a
search of a cell-phone be treated any differently than any other search of a receptacle-like item?
13.
In Fearon, her Honour determined the first warrantless search of the cell-phone
conducted by Sgt. Hicks at the scene of Mr. Fearon’s arrest was properly within the traditional
Caslake framework. Mindful of the shifting legal ground beneath her, she distinguished the case
before her from Polius on the basis that Sergeant Hicks was justified in his belief that a search of
Mr. Fearon’s cell-phone would contain evidence relevant to armed robbery for which Mr. Fearon
was being arrested. This was unlike the arresting officer in Polius who did not have a reasonable
basis to believe the cell-phone belonging to Mr. Polius contained evidence of his crime.
I find that Sgt. Hicks was justified in his belief that the cell-phone may contain
evidence relevant to the armed robbery for which Mr. Fearon was arrested. Sgt.
Hicks had been investigating other aspects of the robbery since the radio call at
6:23p.m. Prior to arriving at 3390 Keele Street, he knew that Reynolds needed
6
It was argued that if the Court found that the SITA was unlawful for any reason then the search pursuant
to the search warrant must also fail.
7
R. v. Polius, [2009] O.J. No. 3074 [BA Tab 18]
7
assistance with two suspects who matched the description of the robbery
occurrence. By the time he received direction to arrest Mr. Fearon for armed
robbery at 9:15 p.m. he also knew: (1) that more than one perpetrator committed
the robbery; (2) approximately three hours elapsed since the robbery; and, (3)
there was a gun or imitation gun involved in the robbery.
In these circumstances, I find there was a reasonable prospect of securing
evidence of the offence for which the accused was being arrested in searching the
contents of the cell-phone. In particular, it was reasonable for Sgt. Hicks to
believe that the arrestee, Mr. Fearon, may have had communication through the
cell-phone before, during or after the robbery with other perpetrators of with third
parties. His search of the phone at the arrest scene was brief and cursory. There is
no suggestion that this was an expansive or abusive search. 8
14.
Justice Oleskiw again distinguished Polius from the facts before her in analyzing the
second search back at the police station, finding that the second search too was consistent with
the law of search incident to arrest as articulated in Caslake alone 9:
I also find that the further searches of the phone at the station over the night of
July 26 and morning of July 27 were also properly incident to arrest. Although 1
1/2 hours had passed since the arrest, Abdel-Malik's saving of the text message at
the station was clearly incidental to the arrest as preserving evidence. The further
searches, looking for contact names and other information as the investigation
developed over the night were also incident to arrest as the officers believed that
those searches would assist in their investigation and the eventual prosecution of
the arrestee. In particular, Nicol and Abdel- Malik had a reasonable basis to
conclude that the contents of the cell-phone could have some evidentiary value.
At the time further searches were ordered, Abdel-Malik and Nicol knew that the
gun and the jewelry were outstanding. They also learned that a third person was
involved and that the contact information for that person should be in Mr.
Fearon's cell-phone. Information contained in the cell-phone was reasonably
connected to the offence such that one would expect to find some evidence in its
contents. The delay and distance from the arrest scene is not significant and does
not undermine the close connection between the search and the arrest,
particularly when it was, essentially, an extension of Sgt. Hick's search at the
arrest scene: Caslake at para. 25; Nolet, 2010 SCC 24 at para. 50.
8
9
R. v. Fearon, [2010] O.J. No. 5745, at para. 43, 44 [AR Tab 2]
R. v. Fearon, [2010] O.J. No. 5745, at para. 46 [AR Tab 2]
8
On Appeal:
15.
When Justice Oleskiw rendered her decision in Fearon, she did not have the benefit of
the analysis of Justice Sharpe of the Ontario Court of Appeal decision in Manley, 10 or the
Ontario Superior Court of Justice decision in Liew by Justice Boswell. 11 Both decisions dealing
with the SITA of a cell phone were available by the time the Fearon Appeal was argued. Justice
Boswell released his s.8 ruling on the search of Mr. Liew’s phone after Justice Oleskiew’s
decision, but before the hearing of this case before the Ontario Court of Appeal. Justice Boswell
rejected the elaboration of Caslake regarding cell-phones, suggested by Justice Trafford in his
obiter dicta in Polius, that permitted a ‘cursory inspection’ of a cell-phone as part of a SITA in
favour of requiring a warrant to search a cell-phone absent exigent circumstances.
16.
Counsel for the Appellant raised Liew in oral argument at the hearing of the appeal
although the Court of Appeal in this case did not refer to it in its decision. 12 Counsel for the
interveners (The Criminal Lawyers’ Association “CLA” and Canadian Civil Liberties
Association “CCLA”) joined with the Appellant that a Caslake SITA could not be extended to a
cell-phone because of the heightened expectation of privacy. Where the CLA and CCLA parted
with the Appellant was on the issue of exigent circumstances. The position of the interveners was
that a SITA of a cell-phone always required a warrant. Crown Counsels for the provincial and
federal government argued that cell-phones had no heightened expectation of privacy and
therefore the police should be able to simply search a cell-phone incident to arrest without
resorting to a cursory inspection in order to seek a warrant.
17.
Justice Armstrong, writing for the Ontario Court of Appeal in Fearon, agreed with the
trial judge’s conclusion that both warrantless searchers of cell-phones incident to arrest were no
different than a warrantless search of a receptacle. He did not interfere with the trail judge’s
assessment that Mr. Fearon’s cell-phone did not attract heightened expectation of privacy
10
R. v. Manley, [2011] ONCA 128 [BA Tab 12]. (Police in possession of information accused had stolen
cell-phones. Therefore SITA of cell phone to investigate if cell-phone seized when arrested belonged to
accused (or was stolen property) was a lawful SITA.)
11
His Honour released his section 24(2) analysis on May 25, 2012, R. v. Liew, [2012] ONSC 290 [BA
Tab 11].
12
R v. Fearon, [2013] ONCA 106 [AR Tab 4]
9
because it did not have ‘mini-computer’-like capabilities and, he noted, the cell-phone was not
password protected.
18.
Armstrong J.A. was troubled, however, by the second search back at the police station.
His own opinion was that the police ought to have ceased their examination of Mr. Fearon’s
phone and obtained a search warrant given that the detective admitted there was no urgency to
search the phone and it was not impracticable to seek judicial authorization. In addition,
Armstrong, J.A. noted that a telewarrant under s. 487.1 of the Criminal Code was available. 13
However, in the end, Justice Armstrong did not interfere with the trial judge’s finding regarding
the second search either.
19.
Justice Armstrong addressed the issue of whether a traditional Caslake SITA authority,
with respect to cell-phones searches incident to arrest, should be limited to a cursory inspection
before requiring a warrant. He too acknowledged that cell-phones potentially had heightened
privacy interests because of the quantity of information that resided on them. Therefore, Justice
Armstrong did not reject the need to limit a traditional SITA to a cursory inspection pending a
warrant to search further. He acknowledged that his brother Sharpe J.A. in Manley had declined
to apply Polius. In Manley the Appeal Court in Ontario also had been asked to look at the issue
of cell-phone SITA’s. Justice Armstrong noted that his brother Sharpe J.A. was not persuaded
Justice Trafford was incorrect. However, Justice Armstrong also acknowledged that Justice
Sharpe did not adopt Polius either. Therefore. Justice Armstrong concluded that Manley did not
change the law in Ontario. The law in Ontario remained that no warrant was required to search a
cell phone incident to arrest. Nonetheless, even if Polius were the law in Ontario, Justice
Armstrong found that the two searches of Mr. Fearon’s phone were ‘cursory’ in nature.
20.
In summary, the Court of Appeal for Ontario upheld the traditional SITA framework
despite acknowledging that digital technology and information were changing the world of
privacy expectations.
13
Ibid, found at paragraphs 58 [AR Tab 4].
10
21.
This Factum will discuss next the factors underlying the justification of a search incident
to arrest in Canadian law.
STATEMENT OF THE LAW
The Law on SITA
22.
On the night of November 3rd, 1983, Officer Langlois conducted a pat-down frisk of
Messier Cloutier after lawfully arresting him for an illegal right-hand turn in the City of
Montreal. Mr. Cloutier later had the Officer charged with assault. Officer Langlois’s defence
was that the frisk search did not constitute the offence of assault because it was authorized by the
common law and it was performed in a reasonable manner. Having weighed the competing
interests of the State and the Individual, this Court considered the SITA to be of minimal
interference with Mr. Cloutier’s liberty and to be necessary in order for the criminal justice
system to function properly. In Cloutier, this Court held:
[This Court held the “frisk” search to be a] relatively non-intrusive procedure:
outside clothing is patted down to determine whether there is anything on the
person of the force is applied. The duration of the search is only a few seconds” 14
(Emphasis added.)
The ultimate purpose of criminal proceedings is to convict those found guilty
beyond a reasonable doubt. … First, the process of arrest must be capable of
ensuring that those arrested will come before the court. … In light of this
consideration, a search of the accused for weapons or other dangerous articles is
necessary as an elementary precaution to preclude the possibility of their use
against the police, the nearby public or the accused himself … Further, the
process of arrest must ensure that evidence found on the accused, and in his
immediate surroundings is preserved. The effectiveness of the system depends in
part on the ability of peace officers to collect evidence that can be used in
establishing the guilt of a suspect beyond a reasonable doubt.” 15 (Emphasis
added.)
23.
This Court revisited SITA, eleven years later, in the context of requiring the Crown to
comply with s.8 of the Charter in Caslake. 16 This Court confirmed that, although a SITA is a
warrantless search and therefore contrary to the principles set out in Hunter v. Southam, 17 a
14
Cloutier, supra, at 186 [BA Tab 1].
Cloutier, supra, at 182 [BA Tab 1]
16
Caslake, supra [BA Tab 4].
17
Hunter v. Southam, [1984] 2 S.C.R. 145 [BA Tab 2]
15
11
SITA nevertheless may be constitutional because of the underlying policy objectives: 1) the
necessity to search in order to seize immediately identifiable objects for the purposes of evidence
and 2) officer safety. It is these underlying law enforcement objectives that compete with the
privacy interest enshrined in s.8 of the Charter and that, but for these policy objectives, a
warrantless search would infringe section 8 of the Charter. 18 Therefore, the framework in
Caslake strikes a fine balance between protecting privacy and the needs of law enforcement.
24.
It cannot be stressed more that a SITA is a prima facie breach of a person’s privacy. The
burden of proof for justifying a warrantless search falls on the Crown. It is tolerated at common
law, however, and considered reasonable by Charter standards, only where the SITA is of
minimal intrusion, when it is connected to the reason for the arrest, and when the SITA has an
underlying law enforcement objective. It is these limitations that save it from offending the
Charter. As Chief Justice Lamer in Southam wrote:
In my view, all of the limits on search incident to arrest are derived from the
justification for the common law power itself: searches which derive their legal
authority from the fact of arrest must truly be incident to arrest in question. The
authority for the search does not arise a result of reduced expectations of privacy
or the arrested individual. Rather, it arises of a need for the law enforcement
authorities to gain control of things or information which outweigh the
individual’s interest in privacy. 19
This Factum will now turn to the state of the law in Canada regarding the extension of searches
incident to arrest to cell-phones.
The State of the Law of SITA in Canada and its Extension to Cell-phones:
25.
Over the years, courts gradually have extended the traditional Caslake to receptacles
found on or near a person such as a bag 20, purse 21, or briefcase. 22 At the same time that courts
have extended Caslake, courts have also upheld s.8 privacy interests by acknowledging that the
18
Hunter v. Southam, supra, at paragraph 33 [BA Tab 2].
Southam, supra, paragraph 17 [BA Tab 2].
20
R. v. Miller, [2003] O.J. No. 3544 (OCJ) [BA Tab 14]
21
R v. Marten, [2004] B.C.J. No. 2300 [BA Tab 13].
22
R. v. Mohamad, [2004] O.J. No. 279 [BA Tab 15].
19
12
SITA authority is not unlimited; that a SITA must be minimally intrusive; 23 that a SITA must
truly be a lawful arrest; 24 and, that Courts must factor in the timing of the search and the scope of
the surrounding area searched. Each of these factors has been taken into account in concluding
whether the Crown can justify a warrantless search 25.
26.
This Court has also limited the authority to conduct a warrantless search incident to arrest
by narrowly defining law enforcement objectives. In R v. Stillman 26, this Court declined to
expand a SITA to permit police to take dental impressions or bodily samples (i.e. hair, blood,
saliva or urine) from a person in custody. In doing so, this Court noted at paragraph 49 that
“Bodily impressions and samples are usually in no danger of disappearing.” In the absence of the
law enforcement objectives, here, evidence preservation, the privacy interest increases the
burden to justify the warrantless search on the Crown.
27.
Therefore, section 8 rights have always restrained a SITA. The new issue courts are
struggling with is the heightened privacy interests in digital technology and digital information.
28.
The first notable case to extend the traditional SITA framework to cell phones is R.v.
Giles 27 from the British Columbia Superior Court. This case simply extended a SITA to cellphones treating them no differently than any other receptacle such as a purse, bag, or briefcase.
The court in Giles opined that if the police can “Seize It” then they can “Search It.”
29.
What has received the bulk of judicial consideration to date, and particularly in Ontario,
is the Polius “Cursory Inspection” elaboration of Caslake. In this case Mr. Polius’ Blackberry
was seized pursuant to SITA for a murder for hire offence. The police officer’s reason for
23
This Court found in R. v. Golden, [2001] S.C.J. No. 81 that strip searches while in the field, by an
officer of the opposite sex, absent reasonable grounds of officer safety or exigent circumstances, is
unreasonable [BA Tab 6].
24
R. v. Belnavis, (1996) 107 C.C.C. (3d) 195 (OCA) at 213 found that an arrest for outstanding traffic
fines did not justify the search of a trunk of a vehicle [BA Tab 3].
25
This Court found in Caslake itself that the 6-hour delay in searching the car was not presumptively
unreasonable but that a delay can cause a court to draw a negative inference if a proper explanation
cannot be provided (in Caslake, the detachment was in a rural part of Manitoba and understaffed).
26
R v. Stillman, [1997] S.C.J. No. 34 [BA Tab 20]
27
R.v. Giles, 2007 BCSC 1147 (CanLII) [BA Tab 5]
13
searching the phone (identification) was not related to that charge. Therefore, Justice Trafford
dismissed the issue on the basis that the cell-phone was not lawfully seized -but not before he
added that cell-phones do have a heightened expectation of privacy because of the nature of the
digital information that resides on a cell-phone. As his Honour explained at paragraph 52 of the
decision 28:
In my view, a person has, objectively viewed, a reasonable expectation of privacy
in the contents of his/her cell phone. … The information in a cell phone, computer
or other electronic device may relate to aspects of life that are deeply personal. It
may include:
*
*
*
*
*
*
*
*
*
*
Contacts, including names, addresses, phone numbers, e-mail ad-dresses and
other personal information;
Internet Explorer, including the history of accessing websites;
Calendars;
Photographs and videos;
Text Messages;
Voice Mail Messages;
E-mail Messages;
Missed Calls;
Call Logs; and
Call Identification.
53
Many such devices are secured by passwords or PINs. Some such devices
also have the capacity to recover deleted information.
54
In "Applying Section 8 in the Digital World: Seizures and Searches",
prepared for The 7th Annual Six-Minute Criminal Defence Lawyer, Law Society
of Upper Canada, June 2007, Alan D. Gold described the privacy implicated in
the seizure and search of a computer, as follows at 3-1 to 3-2:
... (a) computer is a multi-faceted instrumentality without precedent in our
society ... it can store immense amounts of information ... it is very likely
to store highly private and significant information (about a person) ... their
life style, their medical information, their banking information, their social
relationships and interests ... a computer is a fastidious record keeper ...
(of) an enormous amount of information about what has been stored, what
has been deleted, what has been communicated, what internet browsing
has taken place, and generally, what activities have taken place or by
means of the computer ...
56 Similarly, in R. v. Plant (1994), 84 C.C.C. (3d) 203 (S.C.C.) Sopinka J. said
at 213:
28
Polius, supra, at paras. 52, 53, 54, 56 [BA Tab 18]
14
In fostering the underlying values of dignity, integrity and autonomy, it is fitting
that s. 8 of the Charter should seek to protect a biographical core of personal
information which individuals in a free and democratic society would wish to
maintain and control from dissemination to the state. This would include
information which tends to reveal intimate details of the lifestyle and personal
choices of the individual.
29.
Clearly his Honour is of the opinion that the traditional SITA framework of Caslake
needed to be limited because there is something fundamentally different about the information
residing in cell-phones from the information residing in a receptacle such as a bag, purse or
briefcase. Justice Trafford concluded, in passing, that a search of a cell-phone incident to arrest
could be saved from offending Section 8 only if an officer was permitted to seize a cell-phone,
were then permitted to a cursory inspection in order to objectively ground the officer’s subjective
belief that the phone might contain evidence related to an arrest; and then if such a belief were
established, then the officer would be required to seek a warrant to continue with a search.
30.
In contradistinction to Giles “Seize It – Search It” and Polius “Cursory Inspection”,
Justice Boswell’s decision in Liew from the Superior Court of Ontario provides that if an officer
has “No Warrant” to search a cell-phone seized on an arrested person there can be “No Search”
of that cell-phone unless there are exigent circumstances. His Honour reasoned that digital
technology both heightens the expectation of privacy and at the same time minimizes the law
enforcement objectives (evidence preservation and officer safety) tipping the balance in Caslake
toward requiring a warrant for a cell-phone SITA incident in order not to offend the Charter.
31.
Justice Boswell, in Liew, addressed Justice Trafford’s ‘cursory inspection’ elaboration of
the traditional SITA framework in Polius. Justice Boswell characterized limiting a SITA to a
‘cursory inspection’ as impractical and unnecessary. Justice Boswell’s decision in Liew, “No
Warrant – No Search” in this regard, however has been given no significant judicial
consideration.
15
32.
In summary, in Ontario, the Court of Appeal, in Manley and Fearon has approved of the
Polius “Cursory Inspection” limitation of the traditional SITA framework but the Appeal Court
has not adopted it. The law in Ontario, therefore, is consistent with Giles “Seize It – Search It”
33.
The Nova Scotia Court of Appeal recently entered the fray with its decision in Hiscoe. 29
Justice Oland, of that Province’s Appeal Court, upheld the trial court’s decision in that case. The
Court of Appeal reasoned that the officer’s search of a Blackberry, at the scene of the
defendant’s arrest, was consistent with Polius “Cursory Inspection” concept of the traditional
SITA framework. Unfortunately, neither the Crown nor the Defence raised Liew “No Warrant –
No Search” on Appeal and accordingly, Justice Oland specifically wrote that the Nova Scotia
Appeal Court would not consider Liew.
34.
Therefore, in Canada there is only one jurisdiction (British Columbia in Giles) that still
unreservedly endorses Caslake with respect to a cell-phone SITA. In Ontario, although Caslake
remains the status quo, there has been appellate recognition of the heightened expectation of
privacy in cell-phones: first in Polius, second in Manley, and lastly in the appeal of this case in
Fearon.
35.
In extending a Caslake SITA from receptacles to cell-phones, what the above cases, but
for Giles, have in common, is that they all compare cell-phones to computers in order to gauge
the level of privacy expectation. The comparison is made based on what this Court had to say in
R. v. Morelli 30 about the privacy interests at stake in a search of a computer. In these cell-phone
cases, therefore, whether to extend the Caslake SITA is a question of whether the cell-phone has
‘mini-computer’ functionality.
36.
In addition, and perhaps even more importantly, all cell-phones, like computers, contain
biographical core information.
29
30
R. v. Hiscoe, [2013] NSCA 48 [BA Tab 9].
R. v. Morelli, [2010] 1 S.C.R. 253 [BA Tab 16].
16
37.
In reviewing the case law, it is apparent that courts throughout the country are struggling
to cast off the thinking that digital technology has the same physical properties as bags, purses or
briefcases. As will be discussed later in this Factum, courts further muddy the privacy issue by
equating a digital password to an actual lock on a briefcase.
38.
Just as this Court, in Vu, found that computers are not receptacles, the appellant argues
that neither are cell-phones. In Vu the court applied its reasoning on the facts of the case which
involved a search of a ‘smart’-phone and found that Mr. Vu’s cell-phone had a heightened
expectation of privacy. Mr. Fearon had a ‘dumb’-phone. What is before this Court is whether the
reasoning in Vu regarding the need for a warrant to search a ‘smart’-phone also means that a
warrant is required for a ‘smart’-phone SITA; and, if so, whether the reasoning in Vu extends to
a ‘dumb’-phones?
PART II - STATEMENT OF ISSUES
39.
The issues raised in this Appeal are:
1. Should the traditional SITA framework as articulated in Caslake be extended to cellphones?
2. If the answer to the first question is in the negative, then can a ‘cursory inspection’
limitation to the traditional legal framework of a SITA save it from offending Section
8 of the Charter?
3. If the answer to second question is in the negative, then this Court must consider
whether the cell-phone evidence is admissible pursuant to section 24(2) of the
Charter.
PART III – STATEMENT OF ARGUMENT
40.
The Appellant answers the above questions by arguing that:
17
1. The traditional SITA framework cannot be extended to cell-phones because cellphones, like computers, are sui generis.
2. A cursory inspection cannot save a warrantless search of a cell-phone because a
cursory inspection is impractical, unnecessary, and contrary to the purposive
approach to protecting Charter rights. It also fails to appreciate that digital
information reduces the importance law enforcement objectives.
3. The cell-phone evidence is not admissible pursuant to s. 24(2) of the Charter because
of the extreme infringement on privacy.
A. Should the traditional SITA framework as articulated in Caslake be extended to cellphones?
41.
The answer to the above question depends on whether this Court accepts that cell-phones,
like computers, attract a heightened expectation of privacy. If cell-phones do attract a heightened
expectation of privacy, then the Crown can no longer justify a warrantless search because the
balance between privacy and law enforcement tips in favour of requiring a warrant in order to
comply with s.8 of the Charter.
42.
The only case that extends a Caslake SITA to cell-phones is the early British Columbia
Supreme Court decision in Giles. This case is archaic in its thinking because it did not attribute a
heightened expectation of privacy to a BlackBerry. In the Court’s opinion, the search was
comparable to “looking inside a logbook, diary, or notebook found in the same circumstances.”
The British Columbia Supreme Court found that neither the capacity for information to be stored
on the device, nor the password or double encryption of the device’s network, which that Court
accepted, indicated the Blackberry had higher expectation of privacy. The learned B.C. Judge
concluded that the warrantless search did not contravene section 8’s privacy protection. 31
43.
Giles was decided in 2007 and therefore, the British Columbia Supreme Court did not
have the benefit of this Court’s comments on the effects of digital technology and digital
information on privacy in such seminal cases as Morelli, R. v. Telus Communication 32, and Vu. If
31
32
Giles, supra, at para. 63 [BA Tab 5].
R. v. Telus Communication [2013] S.C.J. No. 1 [BA Tab 21].
18
it had, surely the Appeal Court of British Columbia would have reasoned differently in the face
of Justice Fish’s meticulous description of the psychological state of a person having his home
computer searched by the police and his characterization of the information residing in a
computer as highly private:
[3] First, police officers enter your home, take possession of your computer, and
carry it off for examination in a place unknown and inaccessible to you. There,
without supervision or constraint, they scour the entire contents of your hard
drive: your emails sent and received; accompanying attachments; your personal
notes and correspondence; your meetings and appointments; your medical and
financial records; and all other saved documents that you have downloaded,
copied, scanned, or created. The police scrutinize as well the electronic roadmap
of your cybernetic peregrinations, where you have been and what you appear to
have seen on the Internet — generally by design, but sometimes by accident. …
[105]… Computers often contain our most intimate correspondence. They contain
the details of our financial, medical, and personal situations. They even reveal our
specific interests, likes, and propensities, recording in the browsing history and
cache files the information we seek out and read, watch, or listen to on the
Internet.
[106] It is therefore difficult to conceive a s.8 breach with a greater impact on the
Charter-protected privacy interests of the accused than occurred in this case. 33
44.
In Vu, this Court agreed that “historically cellular phones were far more restricted than
computers in terms of the amount of information that they could store, present day phones have
capacities that are, for our purposes, equivalent to those of a computer.” This Court concluded
that because the trial judge found that Mr. Vu’s phone had a “memory capacity akin to a
computer” then this Court would include ‘computer’ to refer to ‘cell-phones.’ This Court, in Vu,
listed four reasons for treating computers as sui generis: 34
•
Computers store vast amounts of information which reveal our biographical core lives;
•
Computers are ‘fastidious record keepers’ laying down a digital trail of bred crumbs of
where a user has visited.
•
Computers, as a ‘fastidious record keeper’ mean that deleted files can always be
undeleted; and,
33
34
R. v. Morelli, supra, at paras. 3, 105, 106 [BA Tab 16].
Vu, supra, at paragraphs 40 to 44 [BA Tab 22].
19
•
Computers are not stand-alone devices but are connected to other computers; therefore, a
search of a computer at one location may result in the search of second or third computer
in another location far away.
45.
The same above points are true for all cell-phones. Focusing on what rung a cell-phone is
on the technological evolutionary ladder - ‘smart’ versus ‘dumb’- misses the important point that
it is the nature of the information that is key not necessarily how much information a cell-phone
can contain, how fast it can process information, or how many functions/applications it has on it,
or whether it is a stand-alone device or connected to he World Wide Web. 35 As long as the
nature of the information reveals something about the biographical core of who we are, then that
information attracts Section 8 protection. As Justice Sopinka in Plant, as he then was, stated 36:
[I]n fostering the underlying values of dignity, integrity and autonomy, it is fitting
that s.8 of the Charter should seek to protect a biographical core of personal
information which individuals in a free and democratic society would wish to
maintain and conform from dissemination to the state. This would include
information which tends to reveal intimate details of the lifestyle and personal
choices of the individual … 37 (Emphasis added.)
46.
Information that reveals something about core biographical history may include: contact
history, call duration, or GPS co-ordinates that enable cell towers to triangulate past locations.
Even the most basic of phones contain this information. Moreover, even if functional capacity
remains a factor in determining the privacy interest in a cell-phone, then this Factum points out
that even the most basic of cell-phones, for example Mr. Fearon’s Samsung flip-phone, has more
computer power in it than in the computers that ran the Apollo 11 mission. 38
35
In the alternative, if this Court only chooses to attribute higher privacy value to phones with ‘mini’computer functional capacity, then, it is argued that phones such as Blackberries, Iphones, and Androids,
including Tablets, have the same level of privacy interest as does a computer. This Court no doubt
appreciates that the line between these aforementioned ‘smart’-phones and what traditionally society
referred to as home-computers and laptops is quickly blurring.
36
R. v. Plant (1994), 84 C.C.C. (3d) 203 (S.C.C.), at p. 293 [BA Tab 17].
37
See: Hiscoe, supra, at para. 72 [BA Tab 9].
38
Burke, Brian, “The Apollo 11 mission’s computers were less powerful than today’s mobile computers”
Computer Weekly.Com http://www.computerweekly.com/blogs/editors-blog/2009/07/the-apollo-11missions-compute.html [BA Tab 24]. Indeed, in 1989 Motorola launched the first cellular phone that
could fit in a person’s pocket. It weighed 12 ounces and measured 9 inches unfolded. It retailed for
between $2,500 and $3,500. Source: Rise of the Mobile Phone, National Post, April 5, 2013 [BA Tab 37].
Furthermore, cell-phones with cameras were not widely introduced until the 2000s. Source
WWW.Wikipedia.org/wiki/Camera_phone . In comparison to the cell-phones available previously, Mr.
20
47.
Furthermore, even the dumbest of “dumb”-phones has text messaging ability. Indeed, this
Court in Telus required that a Part IV warrant be issued (rather than a general warrant) to retrieve
text messages because of the similarities this ubiquitous feature has with private
communications:
For many Canadians, text messaging has become an increasingly popular form of
communication. Despite technological differences, text messaging bears several
hallmarks of traditional voice communication: it is intended to be conversational,
transmission is generally instantaneous, and there is an expectation of privacy in
the communication. …
Text messaging is, in essence, an electronic
conversation. The only practical difference between text messaging and the
traditional voice communications is the transmission process. This distinction
should not take text messages outside the protection of private communications to
which they are entitled in Part VI. Technical differences inherent in new
technology should not determine the scope of protection afforded to private
communications. … In my view, text messages are private communications and,
even if they are stored on a service provider's computer, their prospective
production requires authorization under Part VI of the Code. 39
48.
Another trait of a cell-phone as a “fastidious record keeper’ is the fact that digital files
can always be recovered in even the dumbest of ‘dumb’-phones. As this Court quoted the oftcited American scholar O.S. Kerr at paragraph 43 of Vu 40:
[M]arking a file as “deleted” normally does not actually delete the file; operating
systems do not “zero out” the zeros and ones associated with that file when it is
marked for deletion. Rather, most operating systems merely go to the Master File
Table and mark that particular file’s clusters available for future use by other files.
If the operating system does not reuse that cluster for another file by the time the
computer is analyzed the file marked for deletion will remain undisturbed. Even if
another file is assigned to that cluster, a tremendous amount of data often can be
recovered from the hard drive’s slack space,” space within a cluster left
temporarily unused. It can be accessed by an analyst just like any other file. [p.
542]
49.
Furthermore, even the most basic cell-phone is not a stand-alone device even if the cell
phone is without Internet capability. The fact is that text messages or phone calls may continue
Fearon’s ‘dumb’-phone is a ‘mensa’-phone.
39
Telus, supra, at para. 1 [BA Tab 21].
40
Vu, supra, at para. 43 [BA Tab 22].
21
to be received after a cell-phone has been seized. Indeed, Srgt. Hicks believed that Mr. Fearon’s
phone continued to receive in-bound calls on the way to the police station. 41
50.
Lastly, the fact that all cell-phones are “fastidious record keepers” serves to highlight two
important points: 1) when impugned information is being recorded and thereby captured in a
cell-phone, the law enforcement objectives articulated in Caslake and Cloutier -evidence
preservation and officer safety- actually decrease in importance because of the very nature of
digital information. Therefore it is harder to justify why the officer did not obtain a warrant; and,
2) it is doubly harder to justify the lack of a warrant when that decrease in importance of law
enforcement objectives now has to compete with the increased expectation of privacy in a cellphone.
51.
Therefore, regardless of whether the search of a cell-phone is pursuant to the traditional
Caslake framework or it is pursuant to the Polius “Cursory Inspection”, it becomes much harder
for the Crown to justify a warrantless search incident to arrest of any cell-phone because even a
‘dumb’-phone is smart enough to keep a record of its contents and preserve evidence.
52.
In a different context, for example, as noted in this Factum, in Stillman, the decreased
importance of the law enforcement objectives led this Court to find that a the warrantless
extraction of DNA samples could not be justified pursuant to a SITA.
53.
The requirement for a warrant, absent exigent circumstances, should not be seen as a
burden. As Justice Oland of the Nova Scotia Court of Appeal wrote in Hiscoe 42:
My response to the Crown's arguments rests on the foundational principles in
regard to s. 8 of the Charter. Quite simply, an individual is entitled to Charter
protection against unjustified state intrusions upon his or her right to privacy.
Warrantless searches are prima facie unreasonable and contrary to s. 8. While
searches incident to arrest are an exception, their use is subject to limitations.
Given the purpose of s. 8, namely protection against state intrusion upon the right
to privacy, it is critical that as much as possible unjustified searches be precluded
from occurring in the first place. Allowing such infringements to the right to
41
Found at paragraph 23 of the Statement of the Evidence in Part II of this Factum. Justice Oland in
Hiscoe also noted this phenomenon at paragraph 75 [BA Tab 9].
42
Hiscoe, supra, at para. 69 [BA Tab 9].
22
privacy to proceed and determining afterward whether or not they were proper is
most unsatisfactory. After all, the privacy of the individual cannot be fully
restored. Furthermore, the Crown's case and judicial resources may be adversely
impacted.
As the trial judge in Hiscoe also pointed out 43:
[92] Requiring a warrant does not in way (sic) restrict the police in fulfilling their
obligation to collect and gather evidence against the accused to prove his guilt. It
simply requires them to satisfy an independent and impartial arbitrator that their
desire to examine a device that contains potentially very private and personal
information is justified albeit to a greater degree than would be required if they
were searching incident to arrest. But that is what Justice Dickson found would be
an effective way to protect privacy and prevent unreasonable interference with it,
which is the purpose of s.8 of the Charter.
54.
Absent exigent circumstances, a police officer can always obtain a warrant by forming
the grounds to believe that a cell-phone contains evidence relating to an offence for which a
person is being arrested, such as a belief formed from the circumstances themselves surrounding
the arrest of the person. For example, the officer formed his grounds to search Mr. Fearon’s
phone based on the circumstances of the arrest.
B. Should the traditional SITA framework be limited by a ‘cursory inspection’ in order to
save a traditional SITA from offending Section 8 of the Charter?
54.
Justice Trafford of Polius explained what in his view a SITA enabled an officer to do 44:
41 In my view, the power to SITA includes a power to conduct a cursory
inspection of an item to determine whether there is a reasonable basis to believe it
may be evidence of the crime for which the arrest was made. However, any
examination of an item beyond cursory examination of it is not within the scope
of the power to SITA. Using other words, the evidentiary value of the item must
be reasonably apparent on its face, in the context of all of the information known
by the arresting officer. Where the purpose of a SITA is to find evidence of the
crime, the standard governing the manner and scope of the search is a "...
reasonable prospect of securing evidence ...". See R. v. Caslake, supra, at para. 21.
The police "... must be in a position to assess the circumstances of the case so as
to determine whether a search meets the underlying objectives ..." of the SITA.
See Cloutier v. Langlois, supra, at paras. 60-62. (Emphasis added.)
43
44
R. v. Hiscoe, 2011 NSPC 84 (CanLii), at para. 92 [BA Tab 8].
Polius, supra, at para. 41 [BA Tab 18].
23
55.
In other words, therefore, a SITA gives an officer the authority to conduct a cursory
inspection for the purpose of deciding whether there is a reasonable basis to believe that there is
evidence of the crime for which the arrest was made.
56.
Regarding a SITA of a cell-phone, an officer may not be able to determine the
evidentiary value of a cell-phone on its face even in the context of all the information known by
the arresting officer. A cursory inspection is an inspection on the face of the item –a plain viewto determine whether there is a reasonable basis to believe there is evidence to be secured; and, if
so, then the officer must seek a warrant to search the cell-phone further.
57.
Cognizant that at least ‘smart’-phones have a heightened expectation of privacy, his
Honour stated in Polius 45:
It is the range of privacy interests that may be implicated by the information on the
cell phone that leads me to conclude the values underlying s. 8 of the Charter are
best cared for by limiting the power to SITA and to seize a cell phone to a power to
seize it, where there is a reasonable basis to believe it may contain evidence of the
crime, for the purpose of preserving its evidentiary value, pending a search of its
content under a search warrant. (Emphasis added.)
58.
There are at least five problems with a “Cursory Inspection.” First, if cell-phones have a
heightened expectation of privacy then the police should seek a warrant. A warrantless search is
a breach of an individual’s s.8 right. The burden should be on the Crown to justify the police
action and not on the defendant to show why s.8 rights ought to be protected.
59.
Second, the underlying s.8 values of the Charter are not best cared for by limiting a SITA
to a ‘cursory inspection.’ The Charter values of heightened privacy interest in cell-phones are
best cared for, regarding a SITA of a cell phone, by requiring the police to explain to seek priorjudicial authorization rather than post-judicial approval.
60.
Justice Trafford’s elaboration that a SITA includes an ability to cursory inspect a cell-
phone means a person’s Charter protection is left entirely in the hands of a police officer because
it would be up to the officer to determine when to stop searching the cell-phone. Only if the
45
Polius, supra, at para. 57 [BA Tab 18].
24
person is charged, does the search reach a presiding judge to determine whether the officer went
too far in ‘cursorily’ inspecting the cell-phone after the breach may already have occurred. This
post hoc analysis is contrary to the purposive approach to protecting privacy that this Court
articulated in Hunter v. Southam. 46 Dickson J., as he then was, discussed how to give effect to
the purposive value of the Charter’s section 8 protection. He was of the view that after-the-fact
judicial scrutiny had to take place if privacy is valued 47:
Such a post facto analysis would, however, be seriously at odds with the purpose
of s. 8. That purpose is, as I have said, to protect individuals from unjustified state
intrusions upon their privacy. That purpose requires a means of preventing
unjustified searches before they happen, not simply of determining, after the fact,
whether they ought to have occurred in the first place. This, in my view, can only
be accomplished by a system of prior authorization, not one of subsequent
validation.
A requirement of prior authorization, usually in the form of a valid warrant, has
been a consistent prerequisite for a valid search and seizure both at common law
and under most statutes. Such a requirement puts the onus on the state to
demonstrate the superiority of its interest to that of the individual. As such it
accords with the apparent intention of the Charter to prefer, where feasible, the
right of the individual to be free from state interference to the interests of the state
in advancing its purposes through such interference.
I recognize that it may not be reasonable in every instance to insist on prior
authorization in order to validate governmental intrusions upon individuals’
expectations of privacy. Nevertheless, where it is feasible to obtain prior
authorization, I would hold that such authorization is a precondition for a valid
search and seizure.” (Emphasis added.)
61.
In Vu, this Court recommitted to the fact that prior-authorizations are the cornerstone of
the law of search and seizure. This Court, in Vu, stated that 48:
[t]he purpose of the prior authorization process is thus to balance the privacy
interest of the individual against the interest of the state in investigating criminal
activity before the state intrusion occurs.
62.
A farmer would not rely on a fox to report on the security of his chickens. Yet, this is
what this Court is asked to do. Leaving it to the police to determine the permissible extent of a
46
Hunter v. Southam, supra [BA Tab 2].
Hunter v. Southam, supra, at paras. 27-29 [BA Tab 2].
48
Vu, supra, at para. 46 [BA Tab 22].
47
25
search opens a SITA to abuse. Consider that many arrests never lead to charges. For example,
more than 1,100 people were arrested at the G20 Summit in Toronto in 2010. A SITA right to
cursory inspection would have allowed the police to rummage through the devices of each of
those 1,100 persons regardless of whether charges had been sworn. 49
63.
Indeed, this Court must take judicial cognizance of the social-political context in which a
cursory inspection would likely take place. There is already a problem in the City of Toronto
with City police ‘carding’ individuals, usually young black men. The practice is controversial.
Trafford J.’s elaboration that a SITA includes a power to cursory inspect a cell phone would give
the police one more power to harass an already marginalized segment of society.
64.
Third, Justice Trafford’s elaboration that the right to SITA includes a right to cursorily
inspect is arguably unnecessary.
[T]he reasonable prospect standard is a low threshold. In my view, based on the
nature and circumstances of a given offence, it should be possible for the police to
form the reasonable belief in the prospect that a phone will contain evidence of an
offence without having to view its contents. An encroachment on privacy cannot
be used to justify itself. Indeed a system permitting after-the-fact justification
“runs the risk of countenancing an unlimited number of unjustified
encroachments. 50
In other words, an officer does not need actually to peek at a cell-phone in order to satisfy
himself that the cell-phone might contain evidence as an officer might do in the examples Justice
Trafford in Polius 51. All of his examples are self-evident. For example, Justice Oleskiw found
that the circumstances of the case justified the officer’s belief that Mr. Fearon’s cell-phone
contained evidence of the crime Mr. Fearon was being arrested of and not from the officer’s
cursory inspection of the phone. 52
65.
A fourth problem is that Justice Trafford’s concept of a ‘cursory inspection’ is a legal
chimera. The use of modifiers such as the words ‘cursory’ or ‘limited’ give little direction to
49
Toronto Police Services, “After Action Review” (June 2011), p. 46 [BA Tab 40].
Liew, supra, at para. 137 [BA Tab 11].
51
Polius, supra, at paras. 42-45 [BA Tab 18.]
52
R v. Fearon, [2013] ONCA 106, at para. 43 [AR Tab 4].
50
26
police officers. By any other name, a SITA remains an open-ended power to search all the stored
data in any cell-phone found in the possession of an arrested person, since it is not clear when a
cursory inspection becomes an unreasonable search: i.e., what are the limitations to a cursory
inspection? Should the police be limited in looking at text messages? How many? What about
photographs? How many? What about the record of recent calls, contact names, saved past
calendar appointments or future scheduled events, websites visited or twitter feeds, or even voice
mails? Indeed, during the trial before Justice Boswell in Liew he asked the above questions.
What he found was that “five experienced counsel and highly competent counsel” struggled to
provide him with a definition of what a cursory inspection meant.
66.
Fifth, the concept of a cursory inspection works within the assumption those cell-phones
are physically no different than any other physical receptacle such as a bag, purses or briefcase.
Indeed, perhaps a better paradigm to think about computers and cell-phones is to recognize that
both are digital technologies on which resides digital information. In this regard in Vu this Court
rejected comparing the search of digital technology, a computer, to the search of an actual filing
cabinet, in part, because of the networking capabilities of a computer did not make it a standalone object. The same has been argued of all cell-phones.
67.
There is another reason why the comparison from computer to filing cabinet is not
appropriate. A physical search of a computer/cell-phone conjures the image, for example, of a
police officer rummaging through each drawer of a filing cabinet. This image is misleading. As
one American author has put it:
The government in Carey suggested that a computer is like a file cabinet –a form
of container. In order to search a file cabinet, it is necessary to open each file
drawer, regardless of labels, in order to discover the contents. The court rejected
this metaphor:
[B]ecause this case involves images stored in a computer, the file cabinet
analogy may be inadequate. “Since electronic storage is likely to contain a
greater quantity and variety of information than any previous storage method,
computers make tempting targets in searches for incriminating information.”
Relying on analogies to closed containers or file cabinets may lead courts to
“oversimplifying a complex area of Fourth Amendment doctrines and ignore
the realities of massive modern computer storage. 53
53
“Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of
27
68.
The physical analogy oversimplifies our concept of a cursory inspection because a cell-
phone does not offer a plain view like a briefcase into which an officer can take a ‘quick peek’
inside to look for a bag of marijuana or an actual notebook. Respectfully, Justice Trafford is
incorrect when he states that “a cell phone is the functional equivalent of a locked briefcase 54.” It is this
failure to fully appreciate the suis generis characteristic of digital technology and digital information that
leads the learned jurist to thinking that a cursory inspection –the functional and practical equivalent to a
plain view doctrine of a quick peek inside a receptacle- can save a SITA from offending Section 8 of the
Charter. The underlying assumption of a cursory search is that evidence is easily identifiable on a
‘plain view’ basis. Evidence that “falls into view of an officer who has the right to be in the
position he is in to have the view he has had” 55 can be seized. However, in order to “open” a
cell-phone, a police officer must activate it and then ‘open’ each function or application. As a
result of how this is accomplished on a cell-phone, a police officer might search through the full
contents of a phone before finding possible evidence related to the arrest. In the meantime, that
officer may well have looked through the arrested person’s entire voice emails, text messages,
photo album, other digital files from the past, or the officer might retain the phone for a period of
time and wait to see what information the phone receives. 56
69.
An analogy can be made to R v. Law 57 in which an officer removed documents from an
opened safe that had been abandoned in a field by thieves. The discussion turned on whether the
police conduct was reasonable. This Court rejected the Crown’s justification that the search was
justified on the basis that the retrieved documents were in plain view 58:
[27] The respondent attempts to rely on the plain view doctrine, arguing that
evidence that comes within the view of a “lawfully positioned” officer may
be admissible if it is discovered inadvertently … In this case I agree with McKee
Prov. Ct. J. that the incriminating evidence was neither immediately obvious to
Corporal Desroches nor discovered inadvertently. On the contrary, it came to
Elctronic Devices” by Joshua A. Engle, page 250, 41 U. Mem. L. Rev. 233 2010-2011 [BA Tab 30].
54
Polius, supra, at para, 47 [BA Tab 18].
55
Fontana in the Law of Search and Seizure in Canada (3d) at page 602, found in R v. Spindloe, [2001]
S.J. No. 266 at paragraph 25 [BA Tab 19].
56
In Hiscoe that court acknowledged that the cell-phone in question continued to receive in-coming calls
that were part of the ‘data-dump’ and that, therefore, contributed to the problem of the Charter infringing
over-breadth of the search.
57
R v. Law, [2002] SCR 227 [BA Tab 10].
58
Law, supra, at para. 27 [BA Tab 10].
28
light only after he examined, translated and photocopied several documents.
Corporal Desroches admitted there was nothing facially wrong with the
documents. He testified they contained a series of numbers and Chinese
characters, and that he lacked both accounting expertise and proficiency in
Chinese. Not having detected anything incriminating through the unaided use of
his senses, Corporal Desroches cannot rely on the plain view doctrine either to
establish reasonable and probable grounds to search, or to avoid the requirement
of reasonable and probable grounds entirely … (Emphasis added.)
70.
Similarly, a SITA, ordinarily ‘lawfully positions’ an officer, but there is nothing
‘immediately obvious’ to see in a cell-phone unless the officer activates the digital device and
looks through its various applications and functions -in which case the evidence is not found
‘inadvertently’ by the analysis in Law.
71.
This Appeal will set the law for SITAs of cell-phones for the future. Its outcome will
directly affect up to 25,543,872 Canadians. 59 That is the exact number of cell-phone users in
Canada as of 2011. By the time of the hearing of this Appeal that number will no doubt be
higher. Yet, ironically, Mr. Fearon’s phone is increasingly in disuse. An Ipsos Reid 2013 poll
indicates that 47 per cent of Canadians use a ‘smart’-phone. 60 It should come as no surprise that
the ‘smart’-phones discussed in this Factum are fast being replaced by new and more powerful
digital technologies such as tablets that function as ‘mensa’-cell-phones in addition to being
portable personal computers.
72.
This Court stated in Telus that “[t]he task of adapting laws that were a product of the
1970s to the world of smartphones and social networking is a challenging and profoundly
important one 61.” Given that the “world of smartphones and social networking” is changing by
the day, this Court is asked to require police officers to seek a warrant to search incident to arrest
a cell phone so that the law of today will continue to be relevant for the future.
59
Or 73 per cent of the population according to “Residential Telephone Survey” Statistics Canada 2011
[BA Tab 39]
60
Barbour, Mary Ann, Press Release: “Close to Half of Canadian Now Own a Smartphone”,
http://www.ipsos-na.com/news-polls/pressrelease.aspx?id=6005 [BA Tab 23]
61
Telus, supra, at para. 53 [BA Tab 21].
29
C. Did the SITA of Mr. Fearon’s cell-phone breach section 8 of the Charter?
73.
Section 24(2) of the Charter requires that evidence obtained in a manner that infringes
the rights of an accused under the Charter be excluded from the trial if it is established that
“having regard to all the circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute”. The burden is on the party seeking exclusion to
persuade the court that this is the case. In R. v. Grant the Court established that 62:
[w]hen faced with an application for exclusion under s. 24(2), a court must assess
and balance the effect of admitting the evidence on society’s confidence in the
justice system having regard to: (1) the seriousness of the Charter-infringing state
conduct (admission may send the message the justice system condones serious
state misconduct), (2) the impact of the breach on Charter-protected interests of
the accused (admission may send the message that individual rights count for
little), and (3) society’s interest in the adjudication of the case on its merits.”
74.
Mr. Fearon’s cell-phone was searched three times. The first search took place at the scene
of the arrest. The second search took place throughout the night at the police station, and the
third search took place a year later by way of warrant.
75.
First, if this Court finds that the trial judge characterized the conduct as “not conduct on
the serious end of the scale” and that the officers acted in “good faith” given the lack of binding
authority on the issue of SITAs of cell-phones, then the breach is not on the serious end of the
spectrum; notwithstanding that cell-phones have a heightened expectation of privacy.
76.
In addition, there was nothing preventing the officer from obtaining a warrant at that
time. Indeed, the Detective admitted, regarding the search back at the station, that there was no
urgency to search the phone at the station.
77.
Second, in the alternative, if this Court concludes that a SITA is limited to a ‘cursory
inspection,’ it is submitted Srgt. Hicks’ search of the cell-phone at the scene of the arrest went
beyond a cursory inspection. At trial her Honour found that he searched through the cell-phone
62
R. v. Grant, 2009 SCC 32, at para. 71[BA Tab 7].
30
first in order to determine whether to seize the phone. According to Polius, a SITA gives an
officer the power to seize an item and then to cursorily inspect it for any evidence. In this case,
the officer did the reverse. He had not formed the grounds to search the phone until he had
already searched it.
78.
Moreover, the second search back at the station also went beyond a cursory inspection of
the phone. Detective Abdel-Malik spent at least four minutes looking through the cell-phone
before passing it over to another officer for that officer to search the phone. Both of these
searches must be considered egregious in light of the privacy interests at stake.
79.
The s. 24(2) inquiry also requires the Court to consider society’s interest in the
adjudication of the case on its merits. The question here is whether the truth-seeking function of
the criminal trial process would be better served by admission of the evidence, or by its
exclusion. The factors to be considered are the reliability of the evidence, the importance of the
evidence to the Crown’s case, and the seriousness of the offence, although both of these
considerations have the potential to cut both ways.
80.
The trial judge found the text message and photographs retrieved from Mr. Fearon’s
phone to be cogent. Nevertheless, in balancing the societal interests in having trials determined
on their merits against whether the administration of justice would be brought into disrepute, the
balance must favour exclusion.
81.
There was significant negative public clamour resulting from the widespread publicity of
this case. There were numerous newspaper editorials across the country that expressed the
opinion that cell-phones should have a heightened expectation of privacy 63. This same sentiment
63
See for example: Canada – New Media Trend Watch Long Haul Usage Patterns “Mobile Devices” [BA
Tab 25]; Canadian Wireless Telecommunications Association, "Wireless phone subscribers in Canada
2011" [BA Tab 26]; Editorial, “ Court wrong to allow police to look into cellphone without
warrant,” The Globe and Mail, A14, February 24th, 2013 [BA Tab 27]; Editorial, “Police can search
through your cellphone without a warrant” The Gazette, February 21st, 2013 [BA Tab 28]; Editorial,
“Police cellphone searches threaten privacy:” Toronto Star, February 25, 2013 [BA Tab 29]; Jones,
Allison, “OK for police to search cellphone on arrest if no password: court” The Vancouver Sun article on
February 21, 2013 [BA Tab 31]; Jones, Allison, “Phones Can Be Searched If No Password Lock: Ontario
Court”, The Huffington Post, posted February 20th, 2013 [BA Tab 32]; “Mobile cellular subscriptions
31
was expressed by the dozens of readers commenting on websites across Canada. On the basis of
this informal poll, the criminal trial process would be better served by exclusion.
PART IV – SUBMISSION ON COSTS
82.
Not applicable.
PART V - ORDER REQUESTED
83.
The Appellant respectfully requests that this Honourable Court allow the appeal and rule
that the search incident to arrest of the cell-phone was an infringement of Section 8 of the
Charter and to find that the cell-phone evidence is not admissible.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS DAY OF NOVEMBER, 2013
____________________
Sam Goldstein
Shelley Flam
Counsel for the Appellant
(per 100)” World Bank Data 1998 [BA Tab 33]; Reproduction of reader comments posted on-line to the
Globe and Mail website in relation to editorial of February 25th, 2013 [BA Tab 34]; Reproduction of
reader comments posted on-line to the Toronto Star website in relation to editorial of February 25th, 2013
[BA Tab 35]; Richwood, Lee, “Smartphone users face legal requirement for password protection”
Calgary Herald, March 19th 2013 [BA Tab 36]; Shaw, Gillian, “Tablets fastest growing tech gadget In
Canada” appearing on-line in the Vancouver Sun, January 17th, 2012 [BA Tab 38]
32
PART VI – TABLE OF AUTHORITIES
PARA.
Cases
1. Cloutier v. Langlois, [1990] 1 SCR 158 ..................................................................5, 22, 50
2. Hunter v. Southam, [1984] 2 S.C.R. 145 ...............................................................23, 24, 60
3. R. v. Belnavis, (1996) 107 C.C.C. (3d) 195 (OCA) ...........................................................25
4. R. v. Caslake, [1998] 1 SCR 51 ................................................... 5, 6, 12-16, 19, 23, 25, 29
30, 34, 35, 39, 42, 50, 51
5. R. v. Giles, 2007 BCSC 1147 (CanLII) .........................................28, 30, 32, 34, 35, 42, 43
6. R. v. Golden, [2001] S.C.J. No. 81.....................................................................................25
7. R. v. Grant, 2009 SCC 32 ..................................................................................................73
8. R. v. Hiscoe, 2011 NSPC 84 (CanLii) ...............................................................................53
9. R. v. Hiscoe, 2013 NSCA 48............................................................................33, 45, 53, 68
10. R. v. Law, [2002] SCR 227 ..........................................................................................69, 70
11. R. v. Liew, 2012 ONSC 1826 ...............................................................15, 16, 30, 31, 33, 60
12. R. v. Manley, [2011] ONCA 128 .....................................................................15, 19, 32, 34
13. R v. Marten, [2004] B.C.J. No. 2300 .................................................................................25
14. R. v. Miller, [2003] O.J. No. 3544 (OCJ)...........................................................................25
15. R. v. Mohamad, [2004] O.J. No. 279 .................................................................................25
16. R. v. Morelli, [2010] 1 S.C.R. 253 ...............................................................................35, 43
17. R. v. Plant (1994), 84 C.C.C. (3d) 203 (S.C.C.) ...............................................................45
18. R. v. Polius, [2009] O.J. No. 3074 ................................ 12-15, 19, 29-34, 51, 53, 57, 64, 66
19. R. v. Spindloe, [2001] S.J. No. 266 ....................................................................................68
20. R. v. Stillman, [1997] S.C.J. No. 34 ...................................................................................26
21. R. v. TELUS Communications Co., 2013 SCC 16 .................................................43, 47, 72
22. R. v. Vu, [2013] SCC 60...................................................................6, 38, 43, 44, 48, 61, 66
Books and Articles
23. Barbour, Mary Ann, Press Release: “Close to Half of Canadian Now Own a
Smartphone”, Ipsos, posted Thursday February 21, 2013 http://www.ipsosna.com/news-polls/pressrelease.aspx?id=6005..................................................................71
24. Burke, Brian, “The Apollo 11 mission’s computers were less powerful than
today’s mobile computers”, Computer Weekly.Com, posted July 15, 2009
http://www.computerweekly.com/blogs/editors-blog/2009/07/the-apollo-11missions-compute.html. ....................................................................................................46
33
25. Canada – New Media Trend Watch Long Haul Usage Patterns “Mobile Devices” ..........81
26. Canadian Wireless Telecommunications Association, "Wireless phone subscribers
in Canada 2011" ................................................................................................................81
27. Editorial, “Court wrong to allow police to look into cellphone without warrant”
The Globe and Mail, A14, February 14th, 2013 .................................................................81
28. Editorial, “Police can search through your cellphone without a warrant” The
Gazette, February 21st, 2013. .............................................................................................81
29. Editorial, “Police cellphone searches threaten privacy:” Toronto Star, February
25, 2013..............................................................................................................................81
30. Engel, Joshua A., “Doctrinal Collapse: Smart Phones Cause Courts to Reconsider
Fourth Amendment Searches of Electronic Devices”, HeirOnline – University of
Memphis Law Review, Vol. 41, 2010-2010 ......................................................................67
31. Jones, Allison, “OK for police to search cellphone on arrest if no password:
court” The Vancouver Sun article on February 21, 2013 ...................................................81
32. Jones, Allison, “Phones Can Be Searched If No Password Lock: Ontario Court”,
The Huffington Post, posted February 20th, 2013 .............................................................81
33. “Mobile cellular subscriptions (per 100)” World Bank Data 1998. ..................................81
34. Reproduction of reader comments posted on-line to the Globe and Mail website in
relation to editorial of February 25th, 2013. .......................................................................81
35. Reproduction of reader comments posted on-line to the Toronto Star website in
relation to editorial of February 25th, 2013 ........................................................................81
36. Richwood, Lee, “Smartphone users face legal requirement for password
protection” Calgary Herald, March 19th 2013...................................................................81
37. Rise of the Mobile Phone, National Post, April 5, 2013....................................................46
38. Shaw, Gillian, “Tablets fastest growing tech gadget In Canada” appearing on-line
in the Vancouver Sun, January 17th, 2012 ..........................................................................81
39. Statistics Canada, “Residential Telephone Service Survey”, previous release,
December 2010, last modified, January 9, 2013 ................................................................71
40. Toronto Police Services, “After Action Review” (June 2011) ..........................................62
PART VII – STATUTORY PROVISIONS
Charter of Rights and Freedoms, ss. 8, 24(2)
Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 487.1
34
Charter of Rights and Freedoms, ss. 8, 24(2)
8. Everyone has the right to be secure against unreasonable search or seizure.
24 (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained
in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the
evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings would bring the administration of justice into disrepute.
8. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives.
24 (2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments
de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis
par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux
circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice.
35
Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 487.1
487.1 (1) Where a peace officer believes that an indictable offence has been committed and that
it would be impracticable to appear personally before a justice to make application for a
warrant in accordance with section 256 or 487, the peace officer may submit an information on
oath by telephone or other means of telecommunication to a justice designated for the purpose
by the chief judge of the provincial court having jurisdiction in the matter.
(2) An information submitted by telephone or other means of telecommunication, other than a
means of telecommunication that produces a writing, shall be on oath and shall be recorded
verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the
court for the territorial division in which the warrant is intended for execution, the record or a
transcription of it, certified by the justice as to time, date and contents.
(2.1) The justice who receives an information submitted by a means of telecommunication that
produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for
the territorial division in which the warrant is intended for execution, the information certified
by the justice as to time and date of receipt.
(3) For the purposes of subsection (2), an oath may be administered by telephone or other
means of telecommunication.
(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1)
may, instead of swearing an oath, make a statement in writing stating that all matters contained
in the information are true to his or her knowledge and belief and such a statement is deemed to
be a statement made under oath.
(4) An information submitted by telephone or other means of telecommunication shall include
(a) a statement of the circumstances that make it impracticable for the peace
officer to appear personally before a justice;
(b) a statement of the indictable offence alleged, the place or premises to be
searched and the items alleged to be liable to seizure;
(c) a statement of the peace officer’s grounds for believing that items liable to
seizure in respect of the offence alleged will be found in the place or premises to
be searched; and
(d) a statement as to any prior application for a warrant under this section or any
other search warrant, in respect of the same matter, of which the peace officer
has knowledge.
(5) A justice referred to in subsection (1) who is satisfied that an information submitted by
telephone or other means of telecommunication
36
(a) is in respect of an indictable offence and conforms to the requirements of
subsection (4),
(b) discloses reasonable grounds for dispensing with an information presented
personally and in writing, and
(c) discloses reasonable grounds, in accordance with subsection 256(1) or
paragraph 487(1)(a), (b) or (c), as the case may be, for the issuance of a warrant
in respect of an indictable offence,
may issue a warrant to a peace officer conferring the same authority respecting search and
seizure as may be conferred by a warrant issued by a justice before whom the peace officer
appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may
require that the warrant be executed within such time period as the justice may order.
(6) Where a justice issues a warrant by telephone or other means of telecommunication, other
than a means of telecommunication that produces a writing,
(a) the justice shall complete and sign the warrant in Form 5.1, noting on its face
the time, date and place of issuance;
(b) the peace officer, on the direction of the justice, shall complete, in duplicate,
a facsimile of the warrant in Form 5.1, noting on its face the name of the issuing
justice and the time, date and place of issuance; and
(c) the justice shall, as soon as practicable after the warrant has been issued,
cause the warrant to be filed with the clerk of the court for the territorial division
in which the warrant is intended for execution.
(6.1) Where a justice issues a warrant by a means of telecommunication that produces a
writing,
(a) the justice shall complete and sign the warrant in Form 5.1, noting on its face
the time, date and place of issuance;
(b) the justice shall transmit the warrant by the means of telecommunication to
the peace officer who submitted the information and the copy of the warrant
received by the peace officer is deemed to be a facsimile within the meaning of
paragraph (6)(b);
(c) the peace officer shall procure another facsimile of the warrant; and
(d) the justice shall, as soon as practicable after the warrant has been issued,
cause the warrant to be filed with the clerk of the court for the territorial division
in which the warrant is intended for execution.
37
(7) A peace officer who executes a warrant issued by telephone or other means of
telecommunication, other than a warrant issued pursuant to subsection 256(1), shall, before
entering the place or premises to be searched or as soon as practicable thereafter, give a
facsimile of the warrant to any person present and ostensibly in control of the place or
premises.
(8) A peace officer who, in any unoccupied place or premises, executes a warrant issued by
telephone or other means of telecommunication, other than a warrant issued pursuant to
subsection 256(1), shall, on entering the place or premises or as soon as practicable thereafter,
cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or
premises.
(9) A peace officer to whom a warrant is issued by telephone or other means of
telecommunication shall file a written report with the clerk of the court for the territorial
division in which the warrant was intended for execution as soon as practicable but within a
period not exceeding seven days after the warrant has been executed, which report shall include
(a) a statement of the time and date the warrant was executed or, if the warrant
was not executed, a statement of the reasons why it was not executed;
(b) a statement of the things, if any, that were seized pursuant to the warrant and
the location where they are being held; and
(c) a statement of the things, if any, that were seized in addition to the things
mentioned in the warrant and the location where they are being held, together
with a statement of the peace officer’s grounds for believing that those
additional things had been obtained by, or used in, the commission of an
offence.
(10) The clerk of the court shall, as soon as practicable, cause the report, together with the
information and the warrant to which it pertains, to be brought before a justice to be dealt with,
in respect of the things seized referred to in the report, in the same manner as if the things were
seized pursuant to a warrant issued, on an information presented personally by a peace officer,
by that justice or another justice for the same territorial division.
(11) In any proceeding in which it is material for a court to be satisfied that a search or seizure
was authorized by a warrant issued by telephone or other means of telecommunication, the
absence of the information or warrant, signed by the justice and carrying on its face a notation
of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that
the search or seizure was not authorized by a warrant issued by telephone or other means of
telecommunication.
(12) A duplicate or a facsimile of an information or a warrant has the same probative force as
the original for the purposes of subsection (11).
38
Code Criminel, L.R.C., c. C-46, s. 487.1
487.1 (1) L’agent de la paix qui croit qu’un acte criminel a été commis et considère qu’il serait
peu commode de se présenter en personne devant un juge de paix pour y demander un mandat
de perquisition en conformité avec l’article 256 ou 487 peut faire, à un juge de paix désigné par
le juge en chef de la cour provinciale qui a compétence, une dénonciation sous serment par
téléphone ou à l’aide d’un autre moyen de télécommunication.
(2) La dénonciation présentée par téléphone ou à l’aide d’un autre moyen de communication
qui ne peut rendre la communication sous forme écrite est faite sous serment et consignée mot
à mot dans un procès-verbal ou enregistrée mécaniquement par le juge de paix qui, dans les
plus brefs délais, fait déposer auprès du greffier du tribunal de la circonscription territoriale où
le mandat doit être exécuté le procès-verbal ou une transcription de l’enregistrement de la
dénonciation; le juge de paix en certifie le contenu, la date et l’heure.
(2.1) Le juge de paix qui reçoit la dénonciation présentée par un moyen de télécommunication
qui rend la communication sous forme écrite la fait déposer dans les plus brefs délais auprès du
greffier du tribunal de la circonscription territoriale où le mandat doit être exécuté et il certifie
la date et l’heure de sa réception.
(3) Pour l’application du paragraphe (2), un serment peut être prêté par téléphone ou à l’aide
d’un autre moyen de télécommunication.
(3.1) L’agent de la paix qui présente une dénonciation de la façon prévue au paragraphe (2.1)
peut, au lieu de prêter serment, choisir de faire une déclaration par écrit selon laquelle il croit
vrais, au meilleur de sa connaissance, les renseignements contenus dans la dénonciation. Sa
déclaration est réputée être faite sous serment.
(4) Une dénonciation faite par téléphone ou à l’aide d’un autre moyen de télécommunication
comporte les éléments suivants :
a) un énoncé des circonstances qui rendent peu commode pour l’agent de la paix
de se présenter en personne devant le juge de paix;
b) un énoncé de l’acte criminel présumé, des lieux qui doivent faire l’objet de la
perquisition et des objets que l’on prétend pouvoir y saisir;
c) un énoncé des motifs sur lesquels l’agent de la paix se fonde pour croire que
des objets saisissables liés à l’infraction présumée se trouveront dans les lieux à
perquisitionner;
d) un énoncé des autres demandes de mandat en vertu du présent article ou de
tout autre mandat de perquisition qui ont été faites à l’égard de la même affaire
et dont l’agent de la paix a connaissance.
39
(5) Le juge de paix visé au paragraphe (1) peut décerner à un agent de la paix un mandat
lui accordant les mêmes pouvoirs en matière de perquisition et de saisie que lui
accorderait un mandat décerné en vertu du paragraphe 256(1) ou 487(1) à la condition
d’être convaincu que la dénonciation faite par téléphone ou à l’aide d’un autre moyen de
télécommunication remplit les conditions suivantes :
a) elle vise un acte criminel et rencontre les exigences du paragraphe (4);
b) elle démontre l’existence de motifs raisonnables pour exempter l’agent de la
paix de se présenter en personne et de soumettre sa dénonciation par écrit;
c) elle démontre l’existence de motifs raisonnables pour décerner un mandat de
perquisition à l’égard d’un acte criminel en conformité avec le paragraphe
256(1) ou les alinéas 487(1)a), b) ou c), selon le cas.
Il peut exiger que le mandat soit exécuté dans le délai qu’il fixe.
(6) Dans le cas d’un mandat décerné par téléphone ou à l’aide d’un autre moyen de
télécommunication qui ne peut rendre la communication sous forme écrite :
a) le juge de paix remplit et signe le mandat suivant la formule 5.1; il y indique
l’endroit où le mandat est décerné, la date et l’heure;
b) l’agent de la paix, sur l’ordre du juge de paix, complète en double exemplaire
un fac-similé du mandat selon la formule 5.1; il y indique le nom du juge de
paix qui décerne le mandat, le lieu où le mandat est décerné, la date et l’heure;
c) le juge de paix, dans les plus brefs délais possible après avoir décerné un
mandat, fait déposer le mandat auprès du greffier du tribunal de la
circonscription territoriale où le mandat doit être exécuté.
(6.1) Dans le cas d’un mandat décerné à l’aide d’un moyen de télécommunication qui rend la
communication sous forme écrite :
a) le juge de paix remplit et signe le mandat suivant la formule 5.1; il y indique
la date, l’heure et l’endroit de sa délivrance;
b) il transmet le mandat à l’agent de la paix qui a présenté la dénonciation; la
copie que reçoit l’agent de la paix est réputée être un fac-similé au sens de
l’alinéa (6)b);
c) l’agent de la paix produit un autre fac-similé du mandat;
d) le juge de paix, dans les plus brefs délais possible après avoir décerné un
mandat, fait déposer celui-ci auprès du greffier du tribunal de la circonscription
territoriale où le mandat doit être exécuté.
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(7) L’agent de la paix qui exécute un mandat de perquisition décerné par téléphone ou à l’aide
d’un autre moyen de télécommunication, à l’exception d’un mandat décerné en vertu du
paragraphe 256(1), doit, avant de pénétrer dans les lieux à perquisitionner ou dans les plus brefs
délais possible par la suite, remettre un fac-similé du mandat à toute personne présente et
apparemment responsable des lieux.
(8) L’agent de la paix qui exécute dans des lieux inoccupés un mandat de perquisition décerné
par téléphone ou à l’aide d’un autre moyen de télécommunication, à l’exception d’un mandat
décerné en vertu du paragraphe 256(1), doit, dès qu’il y pénètre ou dans les plus brefs délais
possible par la suite, afficher un fac-similé du mandat dans un endroit bien en vue dans le lieu
en question.
(9) L’agent de la paix à qui un mandat de perquisition a été décerné par téléphone ou à l’aide
d’un autre moyen de télécommunication prépare un rapport dans les plus brefs délais possible
mais au plus tard dans les sept jours suivant l’exécution du mandat; il dépose son rapport dans
le même délai auprès du greffier du tribunal de la circonscription territoriale où le mandat
devait être exécuté; le rapport comporte les éléments suivants :
a) une indication de la date et de l’heure de son exécution ou, si le mandat n’a
pas été exécuté, une explication des raisons pour lesquelles il ne l’a pas été;
b) une mention, s’il y a lieu, des choses qui ont été saisies en vertu du mandat et
une indication de l’endroit où elles sont gardées;
c) une mention, s’il y a lieu, des choses qui ont été saisies mais qui n’étaient pas
mentionnées dans le mandat et une indication de l’endroit où elles sont gardées;
dans ce cas, l’agent de la paix donne les motifs sur lesquels il se fondait pour
croire que ces objets supplémentaires avaient été obtenus par la perpétration
d’une infraction ou utilisés dans le cadre de celle-ci.
(10) Le greffier du tribunal visé au paragraphe (9) fait remettre dans les plus brefs délais à un
juge de paix le rapport, la dénonciation et le mandat qui s’y rattache pour qu’il en soit disposé
comme s’il s’agissait d’un mandat décerné par ce juge de paix ou un autre juge de paix de la
même circonscription territoriale.
(11) Dans des procédures où il importe au tribunal d’être convaincu qu’une perquisition ou une
saisie a été autorisée par un mandat décerné par téléphone ou à l’aide d’un autre moyen de
télécommunication, l’absence du mandat original ou de la dénonciation signée par le juge de
paix et comportant une mention des date, heure et endroit de sa délivrance est, en l’absence de
toute preuve contraire, une preuve que la perquisition ou la saisie n’ont pas été correctement
autorisées.
(12) Les copies ou fac-similés du mandat ou de la dénonciation ont, pour l’application du
paragraphe (11), la même force probante que l’original.