R v Balendra – 2019 ONCA 68 (Harvison Young):

[40] The Supreme Court of Canada reviewed the law applicable to the scope of searches incident to arrest in the context of cell phones in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621. Cromwell J., writing for the majority, wrote of the need to recognize, on the one hand, the high potential invasion of privacy inherent in the search of a cell phone, and, on the other, the importance that cell phones may play with respect to law enforcement objectives. At para. 83, Cromwell J. set out four conditions with which a search of a cell phone incident to arrest should comply in order to be lawful:
1. The arrest itself must be lawful;
2. The search must be “truly” incidental to arrest, and have a valid law enforcement purpose in (a) protecting the police, the accused or the public; (b) preserving evidence; or (c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
3. The nature and extent of the search must be tailored to the purpose of the search; and
4. The police must take detailed notes of what they have examined on the device and how it was searched.

[41] The three valid law enforcement purposes identified by Cromwell J. are drawn from the Supreme Court’s previous decisions in Cloutier v. Langlois, [1990] 1 S.C.R. 158, and R. v. Caslake, [1998] 1 S.C.R. 51. In Caslake, the Court clarified, with respect to the “discovering evidence” purpose, that “if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested”: at para. 22 (emphasis in original).

[42] This restrictive approach to the “discovering evidence” purpose was affirmed by Cromwell J. in Fearon, though he added three additional restrictions in the context of cell phone searches. First, where the purpose of the search is to discover evidence, it will only be lawful if the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. The rationale for this restriction is that it strikes the proper balance between law enforcement objectives and privacy interests, in light of the nature and vast range of personal information that a cell phone might hold. Second, where a search is conducted for any valid purpose, both the nature and extent of the search must be tailored to that purpose. Finally, officers must take detailed notes of what they have examined on a cell phone, in order to help them focus their search and to permit effective after-the-fact judicial review. See R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at paras. 89-94.
|
[44] With respect, I agree with the appellant that the trial judge erred on this point. It is clear from Caslake and Fearon that the requirement that the search be “truly incidental” to the charge for which an accused has been arrested is to be strictly interpreted. At para. 76 of Fearon, Cromwell J., having stated that the requirement that the search of a cell phone be truly incidental to arrest should be “strictly applied”, continued: …it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. [Emphasis added.]

[46] The test for determining whether a search is incidental to arrest has both a subjective and an objective component. While Sgt. Humber subjectively believed his look at the USB key was incident to the appellant’s arrest, this belief was not objectively reasonable because the officer was not looking for information relating to the stolen van charge but rather to the investigation that was superseding it with respect to which no charges had yet been laid. Put another way, he was not (subjectively) aware that the initial arrest did not (objectively) authorize him to look at the USB key in order to find evidence of impersonation or fraud.

|

[48] The other issue with the search conducted by Sgt. Humber on March 13 is that there was no evidence that the investigation would be “stymied or significantly hampered absent the ability to search” the USB key incident to arrest. To the contrary, both the appellant and Mr. Pidliskovyy had been arrested and placed in police custody. The USB key and the van had also been seized and secured. In contrast to computers and cell phones, there was no risk of the USB key being accessed or otherwise tampered with remotely. As Cromwell J. put it in Fearon, at para. 80, if “all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect’s cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose.” The same reasoning applies to the search of the USB key in this case.

|

[50] The fact that the search was not objectively incidental to arrest is sufficient to address its reasonableness on those grounds. However, I disagree with the appellant’s argument that the search could not have been valid because it was conducted a number of hours after his arrest. While there are temporal limits to a search incident to arrest, there is no “firm deadline” that defines this limit. Rather, as Lamer C.J. stated in Caslake, at para. 24: As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after that arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest.

[51] Here, Sgt. Humber inserted the USB key into a computer later during the same day, and during the same shift. This was within a reasonable period of time after the arrest. There was no problem with the temporal nexus to the arrest in itself in the circumstances of this case.