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.

Are You Listening to This? The Constitutionality of Interceptions of Private Communications In Exceptional Circumstances

Justice Moldaver and Justice Karakatsanis, writing for an unanimous court in the Tse case and their first decision as Justices of the Supreme Court of Canada, found s.184.4 of the Criminal Code, which governs investigatory interceptions of private communications in “exceptional” circumstances, lacking in the constitutionally required safeguards required for such interceptions. According to the Code, “exceptional” circumstances refers to the situation where a peace officer is facing an “urgent” situation whereby he or she is reasonably unable to follow the normal procedures outlined in the Code for such interceptions.

What would these normal procedures require? First, we must step back from the section and pause to consider the context. Section 184.4 is in Part VI (6) of the Criminal Code relating to “invasion of privacy,” or when a peace officer wants to investigate a criminal matter by using an investigative technique involving the surreptitious interception of private communications. In other, more colloquial terms, the police want to “spy” or “eavesdrop” on a targeted individual, whom the police believe on reasonable grounds to be committing or planning to commit a crime. As we know from television and movies, spying is a very high tech activity requiring the most cutting edge devices such as wiretaps accessed by loads of smart looking mechanical equipment found in plain white cube vans with cool looking techies wearing enormous noise-cancelling headphones. Also present is the ubiquitous computer laptop, as today’s savvy cop needs to use the best in order to combat the even technologically savvier criminal.

As great as these techniques look on the big screen, they do not translate well in the constitutional setting; a context, which takes individual rights seriously, and violations of such rights even more seriously. In our Charter, through sections 7 and 8, the state is required to respect the dignity, autonomy, and integrity of the individual as a defining element of individual freedom. However, with this state obligation, as Pierre Trudeau so eloquently stated “there's no place for the state in the bedrooms of the nation,” comes the competing need to protect society from harm through state-sponsored police investigation and protection. It is the judiciary’s role to determine the appropriate balance between these competing rights through a generous and flexible interpretation of the Charter.

As a result, the starting point in the Criminal Code for invasion of privacy is to create an offence where private communication is intercepted by any means. Private communications are any oral, telephone, or radio-based communication made in the context of a reasonable expectation of privacy. Thus, the originator of the communication intended the communication to be made to another person, with an expectation no one else other than the intended receiver would hear it. Any non-consensual interceptions to such private communication are therefore unlawful and contrary to section 184 of the Criminal Code.

There are two exceptions to the rule, wherein the interception is unlawful. One scenario involves the consent to intercept by either the originator or the receiver of the communication. The other scenario, which is of interest in the Tse case, contemplates a lawful interception where the investigators obtained prior judicial authorization to intercept the communications in accordance with the procedure as set out in the Criminal Code. The application to a Judge for such an authorization is described in section 185 of the Criminal Code.

The application procedure is rigorous: it must be made in writing, it must be made before a superior court judge or a designated judge, it must be signed by the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or a duly authorized agent specially designated in writing, and must be accompanied by a sworn document (affidavit) of the investigating officer. 

In turn, this affidavit, based on the information and belief of the investigator, must include the following information: the facts justifying the authorization should be given; the particulars of the alleged crime; the type of communication to be intercepted; the names, addresses, and occupations, if known, of all the persons intended to be intercepted together with the reasonable grounds to believe such interception may assist the investigation; a description of the place, if known, where the communication is to be intercepted; general description of how the communication will be intercepted; the number of times, if any, such an application for interception has previously been made under the section and the specific details of that prior application; the length of time for which the interception is required; and why other investigative techniques would not likely succeed or why it would be impractical to use other techniques due to the urgency of the situation or if other techniques were tried and failed, what those other investigative techniques were and why they failed to work.

Even if the above procedure is followed to the letter and even if the peace officer has fulfilled all of these pre-requisites, the application Judge, under section 186, must not issue an authorization unless her or she is satisfied that it is in the best interests of the administration of justice to issue the authorization to intercept and that other investigative techniques have been tried and failed, or are unlikely to succeed, or urgency requires this technique.

The steps needed and the information required before an authorization is issued emphasizes the status quo of non-interception and provides a constitutionally permissible exception to the general rule.

Now that we have stepped back from the section at issue in the Tse decision to look at the broader context, we can appreciate the constitutional deficiencies found in s.184.4. First, as earlier discussed, s. 184.4 is an exception to the exception found in s. 185. Section 184.4 permits a peace officer to intercept a private communication in prescribed exigent circumstances where: the peace officer believes on reasonable grounds that an authorization cannot reasonably be obtained and the peace officer believes on reasonable grounds the interception is “immediately necessary” to prevent an “unlawful act” that would cause “serious harm” to person or property and where either the originator of the communication or the receiver of the communication will cause the harm or is the intended victim of the harm. That’s it. There is no requirement for prior judicial authorization. It is the investigator, not an unbiased judicial officer, who makes the determination of the urgency of the situation.

All the safeguards found in sections 185 and 186 seem to disappear as “urgency” trumps “privacy” in s. 184.4.  Not so according to Justices Moldaver and Karakatsanis. In their view, certain aspects of the section pass “constitutional muster” as it provides an appropriately flexible authorization approach in dire or emergency circumstances. However, this appropriate response can only be found by stepping back once again from the section and looking to s.188.  This section contemplates a “stop-gap” authorization, which is issued in urgent situations where an interception is required before there is an opportunity to apply for an authorization under s.185. This “follow-up” authorization must be sought for the s.184.4 situation as soon as is practicable to minimize the time in which a non-authorized interception is at play, thereby maintaining the rigours of the interception exception.

But wait, did the SCC not find s.184.4 invalid and contrary to the Charter? Yes, but in a very limited way, which protects the integrity of the section and signals to the legal community that crime fighting is back on the Agenda with the Charter’s full approval. The constitutional concern with the section is not the lack of judicial approval for an interception, as that judicial-less state would last only for a short time, but it is the lack of notice, which comes after the interception is used, to the intended targets that causes constitutional concern. No notice to those involved means a lack of oversight of the use of police powers. No notice means a lack of disclosure, which in turn means no ability to take the matter before a Judge to determine the appropriateness of the extreme police actions. It is this failure, which the Harper Government has twelve months to rectify. This is an easy fix with the SCC giving explicit instructions on how to comply.

This telling decision, written by new appointments, gives us some insight into the future. The Charter has recently celebrated its 30^th anniversary without much fanfare. This similarly low-key decision reiterates the now familiar Charter values of privacy and oversight but at the same time reinforces the State’s interest to combat crime. The Tse decision appears to provide an interpretation that presumes constitutionality instead of requiring proof of it. It seems to prefer self-referential statutory interpretation as opposed to the trail-blazing early Charter years when Chief Justice Dickson and Madame Justice Wilson wrote sometimes blistering commentaries on the role of the State in protecting Charter rights. Whether or not this is a trend will be seen in the next SCC Charter decision.