The Fearon Case: A Question Of Common Law Police Powers

Everyone has at least one of these: a cell phone, a smart phone, a tablet, or a mini-computer. What they have in common is their portability. We carry these devices around as we carry our wallets and purses. They are our most prized and most used possessions. Add WiFi or 4G to these and we have instant access to information: no longer are we armchair travelers on the Internet but we are travelers on the Internet. Indeed, with WiFi service being offered on long-haul flights in the USA, we are travelers traveling on the Internet. However, although these technological wonders have opened unexplored vistas for us, it has also opened an unbidden Pandora’s Box of legal issues, particularly in the area of criminal law.

In a prior posting, Can Criminal Law Keep Up With The Digital World?, I discussed the mounting technological impasse between investigation of crime and privacy rights. As the government rushes toward the new technological era, it seems those using this technology as an aid to their criminal activities, seem to be further ahead. The Courts, too, have been slow to offer guidance on these issues, resulting in uncertain and obfuscated laws. With the new judgment from the Court of Appeal for Ontario, R v Fearon, the law appears to be as clear as mud.

Let’s start with the media’s representation of this case, which by the way, involves a police search of an arrested person’s cell phone revealing information and photographs pertinent to the alleged crime. This is best described through the headlines used such as: OK for police to search cell phone if no password, says court or Ontario judge rules police can search non pass code-protected cell phones or better yet, Cell phones: No password, no protection: Why the Ontario court is right, and bad guys should get passwords. This emphasis on password protection seems overly simplistic. Even the articles suggesting the case is all about privacy rights seem to miss the mark. However, the articles on warrantless searches do come closer but not quite close enough in my view.

What Fearon raises does involve password protection, privacy rights, and warrantless searches but the issue is the extension of the common law right of the police to search incident to arrest. The Fearon case is all about the common law, how the common law can apply to present law conditions, and how the present law can be extended by the past. Incidentally, much of our present law is, in fact, merely a modification of previous law through the use of precedent and analogy. For a further discussion of the use of precedent and metaphors in law, read my previous posting Blog As Graffiti? Using Analogy and Metaphor In Case Law.

Police authority and the power to act can be found in legislation, by agreement, and in common law. The primary source of investigative power is found in the Criminal Code but the supreme law of Canada, the Charter of Rights and Freedoms through sections 7 to 13, has circumscribed and greatly impacted those powers. Police can also act upon agreement or consent of an individual. Although this power must be clearly and unequivocally given, the “ask and you will receive” police power permits consensual searches without a warrant.

Finally, the police have common law powers to effect an investigation. Common law, is unwritten law created through custom and practice and comes to us through the English common law tradition. Much of the common law has in fact been translated into written rules and has therefore become statutory but much has not. Case in point is the police powers found in the common law.

Historically, the police power to search incident to arrest is a common law power. Also a common law power is the police authority to enter a private dwelling place when in “hot pursuit” of a suspect. Common law, although historical, is subject to change. Custom and practice change and thus the common law must evolve with these changes in order to be relevant and responsive to societal needs. Thus, the police common law power to search incident to arrest has evolved into the police power to not only search an accused incident to arrest but to search the offender’s vehicle as well. This search incident to arrest must be connected to the arrest and there must be an articulable reason for it such as a reasonable prospect that the officer will find evidence of the commission of the crime or for police officer safety.

Another common law power to search and seize is known as the “plain view” doctrine. This common law principle permits a warrantless search and seizure where police are lawfully at a location and the contraband is in plain view to the police. In this instance the police do not need reasonable and probable grounds to believe that the item would be present but the police cannot be previously aware of the evidence and must come across it “innocently” or inadvertently. This power does not permit a full search of the location. 

This brings us back to the Fearon case and his cell phone. The argument advanced on appeal did raise the issue of the police common law powers but only on the issue of the police power to search incident to arrest. Plain view was not considered as although the phone itself was found in plain view, it was not contraband. Although the information found on the phone was evidence of a criminal offence, it was not found inadvertently but was found as a result of a purposeful search of the contents of the phone. One wonders if the plain view doctrine might have been engaged if the home screen of the phone showed an incriminating picture or text. That, however, was not the case in Fearon.

The question posited on the issue of search incident to arrest was whether or not the search went beyond what is considered a search incident to arrest. The Fearon court referred to two previous Ontario cases: the 2009 Polius case from the Ontario Superior Court of Justice, which found only a “cursory” search was permissible where the search was incident to arrest and the Court of Appeal for Ontario Manley case from 2011, which permitted a search of a cell phone, incident to arrest.

In Manley, the cell phone search revealed a photograph of the gun used in the robberies for which the offender had been just arrested. The “cursory” search of the phone was considered valid as the officer had done so in order to establish ownership of the cell phone as the accused was known to have stolen cell phones in the past. The search was for no other purpose and the photograph was found before the officer established ownership of the phone. Finding the incriminating photograph, in other words, was like finding contraband in plain view. A warrant was later requested to do a complete search of the phone. It should be noted that the robberies were completely unrelated to stolen cell phones and therefore the suggestion that the search was connected to the crime is questionable. In any event, the Court in Fearon preferred to follow the Manley case, believing it similar in facts and actions to Fearon.

Leaving aside the efficacy of the Manley decision, the bottom-line of Fearon concludes that a search of a cell phone, as incident to arrest, where the officer is seeking evidence connected to the arrest, is lawful. The difficulty with Fearon comes with the “throw away” line in the Court’s conclusion as follows

This case is not significantly different from Manley.  I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest.  Apparently, the cell phone was turned “on” and it was not password protected or otherwise “locked” to users other than the appellant.  The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery.  The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence. (underlined for emphasis)

This comment on the cell phone being turned “on” and not locked or password protected to other users seems to have been commented on by the Court without explanation. If the search of the cell phone is permissible under the common law authority of a search incident to arrest as defined in the Supreme Court of Canada case of Caslake, then the fact the cell phone is in the off or on position makes no difference. The emphasis should be on the legitimate connection between the arrest and the incidental search. In Fearon, the search was wholly connected to the investigation of the crime committed by the accused. As explained by Chief Justice Lamer, as he then was, in Caslake,

The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual.  Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy.

How then would the fact a cell phone may be locked impact this legitimate interest? It should not, unless the Court found that a cell phone itself has such a high privacy interest to outweigh law enforcement interests. This argument would bring us back to the SCC Cole case and whether, like a personal computer, the information contained on a cell phone touches a person’s biographical core. For a further discussion of this, see my previous blog on the case. However, Fearon did not refer to the Cole case or the issues raised by it.

Interestingly, the Court of Appeal for Ontario in an earlier case from 2011, R v Jones, which incidentally had Justice MacPherson, who was a member of the Court in Fearon, as a panel member, decided on the issue of a plain view seizure of information relating to child pornography during a legal search of a computer for a fraud offence, acknowledged that

Whether the plain view doctrine should apply in circumstances involving a computer search has been a matter of much debate.  The debate has centred on the intrusive nature of computer searches and the somewhat awkward fit between traditional search and seizure concepts and computer technology.

This “awkward fit” appears to be continuing as seen by the Manley and Fearon cases and will continue until we have some clarity from our Supreme Court.

The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post. 

War Crimes: Canadian and International Milestones

With the announcement on March 14, 2012 of the first verdict by the UN sponsored International Criminal Court (ICC), it seems fitting to look back at the first prosecution in 1989, R.v. Imre Finta, in Canada under the then new federal Crimes Against Humanity and War Crimes Act. Imre Finta, originally from Hungary and, as a Hungarian police captain, deported thousands of Jews to the death camp Auschwitz in World War II, was the first individual charged under the Act in 1988. Finta, at the time of his arrest, was a retired restaurant owner living in Toronto. 

The Act was conceived as a result of the Deschenes Commission, which was struck in 1985 to inquire into the presence of war criminals in Canada and to provide recommendations on how Canadian laws should respond. At the time of the Commission, Canada’s immigration laws and policies were not stringent enough to keep war criminals from immigrating to Canada. Indeed in 1962, Josef Mengele, or as infamously known as the “Angel of Death,” had applied to immigrate to Canada even though his identity was well known to government officials. Although, Mengele did not in fact enter Canada, it was clear such entrance would have been possible considering the laxity of Canadian laws. It was equally clear at the time of the Commission, there were in Canada at the time of the Commission alleged war criminals from the World War II era.

The final Commission report was tabled before parliament by then Justice Minister, Ray Hnatyshyn, after examining over 800 cases of alleged war criminals in Canada. Although the Commissioner, Justice Jules Deschenes of the Quebec Court of Appeal and formally the Chief Justice of the Quebec Superior Court, recommended some individuals be deported from Canada, he also recommended ways in which the alleged war criminals could be prosecuted in Canada for their crimes. His proposed recommendations, including changes to the Criminal Code to permit such prosecution, culminated in the Crimes Against Humanity and War Crimes Act in 1987.

Interestingly, Justice Deschenes was appointed in 1993 as one of the first Judges elected by the United Nations General Assembly to serve at the United Nations International Criminal Tribunal for the former Yugoslavia, the precursor to the present day International Criminal Court, mentioned at the beginning of this posting.

With the arrest of Imre Finta on various Criminal Code charges such as robbery, manslaughter, and kidnapping the Commission’s recommendations appeared to be finally showing results. The trial commenced before Mr. Justice Campbell and a jury with evidence of Holocaust victims from all over the world. Ultimately, Finta was acquitted after six months of trial. The Crown appealed to the Court of Appeal for Ontario, with five Justices hearing the case, including Chief Justice Charles Dubin.

Typically only three Justices sit on an appeal case but five justices are assigned when it is a matter of great national importance such as when the constitutionality of a piece of federal legislation is at issue. For example, five Justices of the Court of Appeal for Ontario heard the Bedford appeal on the constitutionality of some of Canada’s prostitution laws. The judgment is to be released on March 26, 2012. A five member panel may also be required when new legislation needs judicial interpretation or in the case of a legislative reference (see my prior posting on References) or when the appeal involves issues decided by a previous Court with a request to review that prior decision. An example from outside of the criminal law is the recent five panel Ontario appeal decision on summary judgment motions.

In the case of Finta, the Court struggled with two issues of national importance involving both Charter rights and substantive issues. The Charter arguments were dismissed. In terms of substantive issues, the Court needed to determine the appropriate implementation and use of the new war crime legislation, particularly how a trial judge must instruct himself or a jury on the correct legal requirements of such a charge in the context of criminal law principles. Finta was charged with easily identifiable Criminal Code charges, but was so charged in the context of war crimes committed years earlier in another country. It was this further layer of complexity, which required a panel of five Justices to consider the issues involved.

The Court of Appeal for Ontario came to a split decision on the application of the Act. The majority decision written by Justices Doherty, Osborne, and Arbour dismissed the Crown appeal against acquittal, finding no substantial wrong or miscarriage of justice at trial. The dissent, written by Chief Justice Dubin and concurred in by Justice Tarnopolsky. The dissent was chiefly concerned with the requisite elements of war crimes and their opinion that the trial judge erred in instructing the jury on the legal aspects of those essentials. Thus, the acquittal was upheld, as there was no palpable error of law and without resort to the constitutionality of the legislation.

As an aside, here too we have some interesting connections to international criminal law and human rights. Justice Walter Tarnopolsky had a strong background in human rights and civil liberties as an academic and law professor. Just prior to his appointment to the Court of Appeal, he was a member of the United Nations Human Rights committee. Justice Doherty as a previous Crown Attorney in the appeals division was very well versed in criminal prosecutions. I have spoken of Justice Doherty in a previous posting. Of course, Madame Justice Arbour went on to become Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia, the very same organization to which Justice Deschenes was connected. She sat on the Supreme Court of Canada as well but after the SCC Finta decision. Most notably, she later served as the United Nations High Commissioner for Human Rights. I have written about Justice Arbour in a previous posting.

The case was further appealed to the Supreme Court of Canada, with similar results. Only seven justices heard the matter, rather than the full quorum of nine. The majority decision written by Justice Cory, upheld the acquittals and dismissed the appeal and the constitutional questions. The majority (a slim majority as 4 justices dismissed the appeal, while three justices would have allowed it) confirmed the substantive charges under the Criminal Code must be proven in conjunction with the additional proof of the essential elements of a crime against humanity as defined by the Act. Thus, as both the substantive offence and the war crime must be proven beyond a reasonable doubt, Finta was properly acquitted as the Crown failed to prove the requisite elements of both offences.

This decision raised the bar in terms of the ability to prove such offences, making such prosecutions extremely difficult for the Crown. The result was fewer prosecutions (many of which were unsuccessful), more extraditions, and even more deportations under the much easier to use immigration legislation. Therefore, the first verdict under the auspices of the ICC is a welcome and much needed addition to the global fight against international crimes. It is hoped Canada will support the efforts of the ICC, while still remaining vigilant in its own efforts to prosecute war criminals.