A case for passwords

The evidence on the phone — a photo of the accused holding a weapon — led to his conviction. Now the Ontario Court of Appeal has released its long awaited decision in R. v. Fearon — another case involving a police search of the contents of a cell phone. When arrested for “robbery while armed with a firearm,” Fearon was subjected to a pat down search by the arresting officer, who found Fearon’s cell phone. The officer examined its contents and found photographs of a gun and cash as well as an incriminating text message. Fearon was brought to the police station and placed in an interview room where he later gave a full videotaped confession, throughout which Fearon maintained that the firearm used in the commission of the robbery was an imitation handgun.

At trial, Fearon sought to exclude the evidence that had been obtained from his cell phone upon his arrest. He claimed the cell phone search was a breach of his right to be free from unreasonable search and seizure protected by s. 8 of the Charter of Rights and Freedoms. The trial judge found no breach and admitted the evidence. Fearon was convicted of robbery and sentenced to six years. He appealed.

His appeal was dismissed. The Ontario Court of Appeal held that the trial judge did not err in her finding that “the examination of the contents of the cell phone at the time and place of arrest and later at the police station were within the ambit of the common law doctrine of search incident to arrest.

“In respect of the photographs found in the cell phone, the police knew from experience that robbers will sometimes take photos of the stolen property and even of themselves with the loot.”1

The appellate Court was asked by the accused’s lawyer to “carve out a cell phone exception to the common law doctrine of search incident to arrest.” The Court declined to do so.  The Court acknowledged the highly personal and sensitive nature of the contents of a cell phone and the high expectation of privacy, but found it difficult to generalize and create an exception based on the facts herein. Those facts suggest that the search and seizure of the cell phone at the scene of the arrest were carried out appropriately and within the limits of the law (i.e., the police must be able to explain why they searched — to protect the police, or to protect or discover evidence).

The appellate Court noted that “the cell phone was not password protected or otherwise ‘locked’ to users other than the accused when it was seized.” The Court held that if the cell phone had been password protected or “locked,” it would not have been appropriate for the police to open the cell phone and examine its contents without first obtaining a search warrant.

The lessons to be learned by Fearon and others are: password protect, or lock, your cell phone if you don’t want others to gain access to its contents; don’t take pictures of stolen property and pose with it; and most importantly, don’t commit robbery!  

Elliott Goldstein, B.A., J.D. is a Woodbridge, Ont.-based lawyer (elgold@rogers.com).

1. R. v. Fearon, 2013 ONCA 106 (Ontario Court of Appeal).