The Fearon decision in R V. Stephenson
The Fearon case was discussed and mentioned in paragraph 67 of the decision-making process. This paragraph concluded that the first search into the accused’s phone was within the legal limits set for investigative officers. However, with the in-depth analysis and search into the activities of the accused phone, the judge agreed that the detectives may have crossed some boundaries and violated the rights of the accused. However, the evidence collected from the accused’s phone was admitted and thus weighed heavily on the court’s decision.
The first search
During the arrest, the accused did not object to officers checking his phone the first time. Instead, while he was being searched in plain view of his phone, he watched the officers go through the phone. A different matter would have arisen had the accused been vocal in challenging the search for his phone. Since the accused insisted that his rights were violated, he needed to have voiced his concerns in court and at the time of the search. The judge’s decision would have been in his favor by invoking his right to privacy and requesting a warrant for the officers to access his phone.
On the other hand, the events superseding the search for his phone did not help to rule in his favor. The judge felt that the search was essentially in plain sight and without objection; therefore, it was simply a matter of concession. The accused essentially agreed to the search, negating the need for a warrant.
The second search
Officers conducted the second search after the arrest to find evidence to solve the case and use against the accused. In this case, the judge found that while this search would have been against the rights of the accused, it was in the interest of justice and truth. To determine this, the judge had to examine the extent of the evidence gathered from his decision. He found the evidence lacked relevance and could not harm the accused in his pursuit of justice.
Should the evidence have been excluded, it might have been possible for the accused to argue the facts presented in the court. The accused insisted that all he did was drive around with two strangers while simultaneously indicating that he used his phone far from the crime scene. However, the admission of the phone evidence raised doubt about his activities, thereby creating a loophole that the prosecutor used to get his verdict.
Considering the Charter of Rights and Freedoms
The judge’s decision is based on the analysis of the trial judge. Under making the decision, the trial judge in the Fearon case showed that the three aspects of section 24, as determined and established in R V. Grant, were fully satisfied.
- The seriousness of the Charter-infringing state conduct: the accused argued that simply because he had his phone at the time of arrest, the arresting officer should have waited for a search warrant. However, the trial judge considered that the phone did not have a password. The lack of a password reduced the seriousness of the infringement. This is because had the phone fallen or become lost, anyone could have had access to the information therein.
- The impact of the breach on the Charter-protected interests of the accused: This is whereby the evidence from the phone alone would have been enough to convict the accused. The only evidence gathered was pictures of a gun and other incriminating pictures. However, the prosecution still had the burden of proving that these pictures were relevant to the case instead of just entertainment in r private collections. Therefore the impact of the evidence would be low since the evidence alone could not convict the accused. The evidence could be used to support and strengthen the prosecution’s claims.
- Society’s interests in the adjudication of the case on its merits: the accused was involved in a crime of violent nature. The possession of a gun would have caused severe harm to society’s citizens. The trial judge highlighted that armed robbery in itself is a crime that could lead to the loss of valuable property within the jeweler’s periphery and the loss of lives. Whenever the consideration of life is concerned, society’s interests increase, and such interests take precedence over the accused’s privacy, as was established in this case. The phone’s evidence must be admitted for the good of society and the future of all people within.
Does the Manley decision bind the Court of Appeals for Ontario?
In the court of Appeals case of Manley, the judge indicated that all accused, that is, anyone under arrest, can expect a search into their phone. This immediate search is protected under the law because officers often gather important evidence that could help further the case’s investigation and gathering of evidence. At the time of arrest, the phone is considered part of the evidence collected and warrants a proper search. However, any further search into the phone may require a warrant. It should be noted that in this case, the accused had no password at the time of the arrest. If the phone has a password, the accused or arrested person is not required to provide the same. He can opt not to give or assist the officers in their investigation, and such lack of assistance will not be held against him during the period the case is presented to the court. However, a lack of a password is like the lack of objection in the case of Stephenson; it generally means that the individual has conceded to the search and, therefore, privacy rights have been violated. The evidence gathered can therefore be used by the prosecution to prove its case. Cell phones are held in different accounts with the accused’s laptops, computers, and homes. Searches into these are considered a violation of privacy, thereby requiring warrants.
Fearon C.A. decision
The court of appeal 2011 upheld the CA decision. The delicate line between an accused’s privacy and the search for justice is often called to question in these cases. The main bone of contention is often the interest of society versus that of the accused. Is the accused looking to protect his privacy or simply refusing to submit evidence that can be used to provide justice to society? While the accused has a right to privacy, such a right cannot be upheld without considering the justice and truth that society expects.
Summary Of R V. Fearon
The case begins with the arrest of the accused, Fearon, in the lobby of his building. This was after a jewelry store robbery in which one of the witnesses recalled a license plate that led officers to his building. During the subsequent search of the accused, a cell phone was found. The officer did not believe the phone would yield any reasonable evidence but proceeded to search and look into it. At the time of the search, Fearon was still under arrest and could see his phone being searched by the officer. He did not raise any objections. During the search, the officers uncovered a text message confessing to the crime and incrementing photos. Further unwarranted search into the hone yielded no other evidence.
The accused’s argument was based on violating his privacy, while the prosecution felt that no rights were violated in the search. The judge had to determine the authenticity of the evidence and whether such evidence should be presented and used in the decision. It is important to note that the officers lacked sufficient evidence to hold the accused. The text message, on the other hand, was an immediate confession to the crime, thereby rendering strength to their case. The Judge felt that the evidence would be submitted in the interest of justice because the accused did not object. With this evidence in place, the accused was found guilty of armed robbery.
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