Oct 24, 2018 | 0 comments

Oct 24, 2018 | Miscellaneous | 0 comments


TO: Professor



DATE: November 18, 2015

SUBJECT: A Comparison of Two Cases

You asked me to read the following two cases and answer the questions set out in Assignment #3. My responses with explanations follow.

Case read: R. v. Stephenson, 2014 ONSC 1006 (hereinafter referred to as “Stephenson”)

R. v. Fearon, 2013 ONCA 106 (hereinafter referred to as “Fearon”)

The Fearon decision in R v. Stephenson

1. The Fearon case was discussed and mentioned in paragraph 67 of the decision making process. In this paragraph, it was concluded that the first search into the phone of the accused 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 boundary and violated the rights of the accused. However, the evidence collected from the phone of the accused was admitted and in thus weighed heavily on the decision of the court.

During the time of 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 of his phone. Since the accused was insistent that his rights were violated, he needed to have voiced his concerns not just in court but at the time of the search. By invoking his right to privacy and requesting a warrant in order for the officers to access his phone, the decision of the judge would have been in his favor. On the other hand, the events superseding the search of 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 thereby negating the need for a warrant.

The second search was conducted by officers after the arrest and in an attempt to find evidence not just to solve the case, but to actually 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. In order to determine this, the judge had to examine the extent of the evidence gathered. From his decision. He found the evidence lacking in relevance and could therefore not harm the accused in his own pursuit of justice.

Should the evidence have been excluded, it might have been possible for the accused to argue the facts presented into the court. The accused insisted that all he did was drive around with two strangers, while at the same time indicating that he used his phone far from the scene of the crime. However, admission of the phone evidence raised doubt with regard to his activities thereby creating a loophole which the prosecutor used to get his verdict.

Considering the Charter of Rights and Freedoms

1. The judge decision is based on the analysis of the trial judge. Pursuant to 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, 2009 SCC 32 were fully satisfied.

  • The seriousness of the Charter-infringing state conduct: the accused argued that simply because he was in possession of his phone at the time of arrest, the arresting officer should have waited for a search warrant. However, the trial judge took into consideration the fact that the phone did not have a password. The lack of password therefore 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 in terms of 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 as opposed to just entertainment r private collection. Therefore the impact of the evidence would be low since the evidence alone could not convict the accused. The evidence could be used however to support and give strength to the claims of the prosecution.
  • 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 the society citizens. The trial judge highlighted that armed robbery in itself is a crime that could lead not just to loss of valuable property within the jeweler’s periphery but also loss of lives. Whenever the consideration of life is concerned the society interests increase, and such interests take precedence over the privacy of the accused as was established in this case. For the good of the society and the future of all people within in, the evidence of the phone required to be admitted.

The best describes of Latin term in this case is obiter dicta.

2. 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 the important evidence that could help in further investigation of the case and gathering of evidence. At the time of arrest, the phone is considered part of the evidence collected and is warrant to a proper search. However, any further search into the phone may require a warrant. It should be noted that in this case at the time of arrest the accused had no password. In case the phone has a password, the accused or person being arrested is not required to provide the same. He can simply opt not to give or assist the officer’s in their investigation and such lack of assistance will not be held against him during the period at which the case is presented to court. However, a lack of 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 no rights of privacy have been violated. The evidence gathered can therefore be used by the prosecution to prove its own case. Cell phones are held in different account with laptops, computers and homes of accused. Searches into these are clearly considered violation of privacy thereby requiring warrants.

3. The Court of Appeal decision was upheld by the Court of Appeal in 2011. 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 the society versus that of the accused. Is the accused really 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 right cannot be upheld without considering the justice and truth that society expects.

4. The case begins with the arrest of the accused Fearon, at the lobby of his building. This was after a robbery of a jewelry store 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 that the phone would yield any reasonable evidence but proceeded to search and look into it. Fearon at the time of the search was still under arrest ad could clearly 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 in addition to incrementing photos. Further unwarranted search into the hone yielded no other evidence.

The argument of the accused was based on violation of his privacy, while the prosecution felt that no rights were violated in the search. The judge had to determine the authentic 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 by which 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 in the interest of justice and because the accused did not object, the evidence would be submitted. With this evidence in place, the accused was found guilty of the armed robbery.


In both cases, the trial judge relied on precedent to make his decisions. The courts ruled to allow evidence collected from cell phones. For a long time, the debate with regard to the limit of privacy where cell phones has been going on. Whereas cell phones are considered private property on one hand, on the other hand, they are often on the person of the individual being arrested and therefore subject to a search. For both trial judges, however the pursuit of justice and truth in the case superseded the accused’s desire and right to privacy. Therefore, computers and other gadgets maybe considered private property protected by law. Any search of these items requires a warrant and any unwarranted search could lead to exclusion of evidence. Cell phones on the other hand, seem to fall into a different category where privacy is limited.