IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Ontario) KEVIN FEARON. - and - HER MAJESTY THE QUEEN.

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1 BETWEEN: IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Ontario) KEVIN FEARON - and - HER MAJESTY THE QUEEN - and - File Number: APPELLANT (Appellant) RESPONDENT (Respondent) DIRECTOR OF PUBLIC PROSECUTIONS OF CANADA, ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF ALBERTA, SAMUEL- GLUSHKO CANADIAN INTERNET POLICY & PUBLIC INTEREST CLINIC, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CRIMINAL TRIAL LAWYERS ASSOCIATION (ALBERTA), CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN ASSOCIATION OF CHIEFS OF POLICE, AND CRIMINAL LAWYERS ASSOCIATION INTERVENERS FACTUM OF THE INTERVENER CRIMINAL TRIAL LAWYERS ASSOCIATION (ALBERTA) (PURSUANT TO RULE 42 OF RULES OF THE SUPREME COURT OF CANADA) DANE F. BULLERWELL Counsel for the Intervener Criminal Trial Lawyers Association (Alberta) Pringle, Chivers, Sparks, Teskey Street NW Edmonton, AB T5J 0P6 Phone: (780) Fax: (780) dbullerwell@pringlelaw.ca JEFFREY W. BEEDELL Ottawa Agent for the Intervener Criminal Trial Lawyers Association (Alberta) Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Phone: (613) Fax: (613) jeff.beedell@gowlings.com

2 SAM GOLDSTEIN SHELLEY FLAM Counsel for the Appellant Kevin Fearon Sam Goldstein 880 Broadview Avenue Toronto, ON M4K 2R1 Phone: (416) Fax: (416) RANDY SCHWARTZ Counsel for the Respondent Her Majesty the Queen Attorney General of Ontario 720 Bay Street, 10 th Floor Toronto, ON M5G 2K1 Phone: (416) Fax: (416) MARIE-FRANCE MAJOR Ottawa Agent for the Appellant Kevin Fearon Supreme Advocacy LLP Gilmour Street Ottawa, ON K2P 0R3 Phone : (613) Ext: 102 Fax: (613) mfmajor@supremeadvocacy.ca ROBERT E. HOUSTON, Q.C. Ottawa Agent for the Respondent Her Majesty the Queen Burke Robertson 441 MacLaren Street, Suite 200 Ottawa, ON K2P 2H3 Phone: (613) Fax: (613) rhouston@burkerobertson.com KEVIN WILSON W. PAUL RILEY Counsel for the Intervener Director of Public Prosecutions of Canada Director of Public Prosecutions Ontario Regional Office 130 King Street West, Suite 3400, Box 36 Toronto, ON M5X 1K6 Phone: (416) Fax: (416) kevin.wilson@ppsc.gc.ca FRANÇOIS LACASSE Ottawa Agent for the Intervener Director of Public Prosecutions of Canada Director of Public Prosecutions 160 Elgin Street, 4 th Floor Ottawa, ON K1A 0H8 Phone: (613) Fax: (613) flacasse@ppsc-sppc.gc.ca - ii -

3 DOMINIQUE A. JOBIN ABDOU THIAW Counsel for the Intervener Attorney General of Quebec Procureur général du Québec 1200, route de l Église, 2e étage Québec, QB G1V 4M1 Phone: (418) Ext: Fax: (418) djobin@justice.gouv.qc.ca PIERRE LANDRY Ottawa Agent for the Intervener Attorney General of Quebec Noël & Associés 111, rue Champlain Gatineau, QB J8X 3R1 Phone: (819) Fax: (819) p.landry@noelassocies.com TAMIR ISRAEL Counsel for the Intervener, Samuel-Glushko Canadian Internet Policy and Public Interest Clinic University of Ottawa Faculty of Law 57 Louis Pasteur Street Ottawa, ON K1N 6N5 Phone: (613) Ext: 2914 Fax: (613) tisrael@cippic.ca GERALD CHAN NADER R. HASAN Counsel for the Intervener British Columbia Civil Liberties Association Ruby Shiller Chan Hasan 11 Prince Arthur Avenue Toronto, ON M5R 1B2 Phone: (416) Fax: (416) gchan@rubyshiller.com COLLEEN BAUMAN Ottawa Agent for the Intervener British Columbia Civil Liberties Association Sack Goldblatt Mitchell LLP Metcalfe St. Ottawa, ON K1P 5L4 Phone: (613) Fax: (613) cbauman@sgmlaw.com - iii -

4 JOLAINE ANTONIO Counsel for the Intervener Attorney General of Alberta Justice and Solicitor General Appeals, Education & Prosecution Policy Branch 3 rd Floor, Centrium Place 300, Avenue S.W. Calgary, AB T2P 0B2 Phone: (403) Fax: (403) jolaine.antonio@gov.ab.ca HENRY S. BROWN, Q.C. Ottawa Agent for the Intervener Attorney General of Alberta Gowling Lafleur Henderson LLP Barristers & Solicitors 2600, 160 Elgin Street Ottawa, ON K1P 1C3 Phone: (613) Fax: (613) henry.brown@gowlings.com MATTHEW MILNE-SMITH Counsel for the Intervener Canadian Civil Liberties Association Davies Ward Phillips & Vineberg LLP 1 First Canadian Place, 44 th floor Toronto, ON M5X 1B1 Phone: (416) Fax: (416) HENRY S. BROWN Ottawa Agent for the Intervener Gowling Lafleur Henderson LLP Elgin St P.O. Box 466, Stn D Ottawa, ON K1P 1C3 Phone: (613) Fax: (613) henry.brown@gowlings.com BRONSON TOY LEONARD T. DOUST, Q.C. Counsel for the Intervener Canadian Association of Chiefs of Police City of Vancouver 453 West 12 th Avenue Vancouver, BC V5Y 1V4 Phone: (604) Fax: (604) bronson.toy@vancouver.ca LYNDA A. BORDELEAU Ottawa Agent for the Intervener Canadian Association of Chiefs of Police Perley-Robertson, Hill & McDougall Albert Street Ottawa, ON K1R 0A5 Phone: (613) Fax: (613) iv -

5 SUSAN M. CHAPMAN Counsel for the Intervener Criminal Lawyers Association Ursel Phillips Fellows Hopkinson LLP 10 th Fl., 30 St Clair Ave W Toronto, ON M4V 3A1 Phone: (416) Fax: (416) schapman@upfhlaw.ca MARIE-FRANCE MAJOR Ottawa Agent for the Intervener Criminal Lawyers Association Supreme Advocacy LLP 340 Gilmour Street, Suite 100 Ottawa, ON K2P 0R3 Phone: (613) Ext: 102 Fax: (613) mfmajor@supremeadvocacy.ca - v -

6 - i - TABLE OF CONTENTS PARTS I and II Overview, Facts and Questions in Issue... 1 PART III Argument... 1 A. The ancillary powers doctrine and searches incident to arrest... 1 B. Searches of cell phones incident to arrest are not reasonably necessary... 5 C. Warrantless searches of cell phones risk breaches of solicitorclient privilege... 8 PART IV and V Costs and Order Sought PART VI Table of Authorities PART VII Statutory Provisions Page No.

7 R. v. Fearon 1 Factum of the CTLA (Alberta) PARTS I AND II OVERVIEW, FACTS, AND QUESTIONS IN ISSUE [1] The Criminal Trial Lawyers Association of Alberta (CTLA) takes no position on the facts of this case, and instead limits its submissions to the legal issue raised on this appeal, i.e., whether the power of search incident to arrest extends to searches of cellular telephones (and other similar mobile electronic devices). In summary, the CTLA respectfully submits as follows: Under the Waterfield/Dedman framework for defining common law police powers, searches of cell phones incident to arrest are not reasonably necessary. Given the extraordinarily high expectation of privacy in the information stored by these devices, and the lack of any demonstrable need to search them without warrant (either for officer safety reasons, or to prevent evidence from being lost or destroyed), the power of search incident to arrest should not extend to these devices. When considering whether searches of mobile electronic devices incident to arrest are reasonably necessary, the possibility of low-visibility breaches of solicitor-client privilege weighs against recognizing such a police power. PART III ARGUMENT A. The ancillary powers doctrine and searches incident to arrest. [2] In recent decades, this Court has frequently relied upon the ancillary powers doctrine to define the scope of common law police powers. 1 The power of search incident to arrest is an early example of a long-established common law police power being placed within the Waterfield/Dedman framework applying the ancillary powers doctrine. 2 [3] The ancillary powers doctrine is one of the most controversial features of this Court s criminal procedure jurisprudence, 3 and this Court has divided sharply on its correctness and proper application in landmark decisions such as Dedman, Orbanski, Clayton, and Kang- 1 See Dedman v. The Queen, [1985] 2 SCR 2 at pp , 20 CCC (3d) 97, R. v. Godoy, [1999] 1 SCR 311 at paras , 131 CCC (3d) 129, R. v. Mann, 2004 SCC 52 at paras , [2004] 3 SCR 59, R. v. Orbanski and Elias, 2005 SCC 37 at paras , [2005] 2 SCR 3, R. v. Clayton, 2007 SCC 32 at paras , [2007] 2 SCR 725, R. v. Kang-Brown, 2008 SCC 18 at paras (per LeBel J.), paras , 62 (per Binnie J.), paras , (per Deschamps J.), [2008] 1 SCR 456, R. v. Aucoin, 2012 SCC 66 at paras , [2012] 3 SCR 408, R. v. MacDonald, 2014 SCC 3 at paras Cloutier v. Langlois, [1990] 1 SCR 158 at pp , 53 CCC (3d) See generally the articles cited by S. Penney, V. Rondinelli, and J. Stribopoulos, Criminal Procedure in Canada (Markham: LexisNexis Canada, 2011), at p. 62, footnote 281 ( The use of the ancillary power doctrine to create new police powers has been widely criticized. ). In particular, Prof. Stribopoulos (now Stribopoulos J.) has been a frequent critic of the use of the ancillary powers doctrine. See e.g. J. Stribopoulos, In Search of Dialogue: The Supreme Court, Police Powers and the Charter (2005), 31 Queen s L.J. 1 at pp

8 R. v. Fearon 2 Factum of the CTLA (Alberta) Brown. 4 Yet as Binnie J. acknowledged in Kang-Brown, we have crossed the Rubicon, 5 and the ancillary powers doctrine is now undeniably an important part of Canadian criminal law. As such, it is surprising that none of the leading decisions addressing cell phone searches in the courts below have considered this issue using the Waterfield/Dedman framework, since it provides a clear formula for determining how far common law police powers should extend. The CTLA respectfully submits that, in the specific context of searches of mobile electronic devices incident to arrest, the Crown must satisfy the reasonable necessity branch of the Waterfield/Dedman test, which was recently summarized in MacDonald by LeBel J.: 6 [F]or the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances. To determine whether a [proposed common law police power] is reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question. These factors include: 1. the importance of the performance of the duty to the public good; 2. the necessity of the interference with individual liberty for the performance of the duty; and 3. the extent of the interference with individual liberty. If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an unjustifiable use of... police power[s]. [4] The Court below defined the issue as whether courts should carve out a cell phone exception to the police power of search incident to arrest. 7 Given the breadth of this police power, limiting searches of cellular phones would, of course, be an exception to the general rule. But defining the issue in terms of carving out an exception risks subtly shifting the persuasive and evidentiary burden onto the accused to justify why police should not have the power to search mobile electronics. Indeed, Armstrong J.A. seems to have approached the issue from this perspective, rejecting the CCLA s position in the Court below as a significant departure from the existing state of the law on the basis of a record that does not suggest it is necessary. 8 [5] The CTLA submits that this reverses the analytical approach demanded by both the ancillary powers doctrine and section 8 of the Charter. The second stage of the Waterfield/Dedman analysis focuses on whether a police power is reasonably necessary; if there 4 See Dedman at pp (per Dickson C.J.C.), Orbanski at paras (per LeBel J.), Clayton at paras (per Binnie J.), and Kang-Brown at paras (per LeBel J.). 5 Kang-Brown at para MacDonald at paras [citations omitted]. 7 R. v. Fearon, 2013 ONCA 106 at para. 1, 114 OR (3d) Fearon at para. 72 [emphasis added].

9 R. v. Fearon 3 Factum of the CTLA (Alberta) are unique circumstances or new considerations that call into question whether an existing police power applies to certain facts, the CTLA submits that the burden remains on the Crown to show why the police power continues to be reasonably necessary. Similarly, when an exercise of police power intrudes upon a reasonable expectation of privacy, the assessment of reasonable necessity should not take place in a constitutional vacuum, and instead, should explicitly consider the applicable section 8 jurisprudence, including Hunter v. Southam. 9 In particular, departures from the Hunter requirements (i.e. prior judicial authorization, based on reasonable and probable grounds) must be justified by the state. 10 And as a warrantless search, a search incident to arrest is presumptively unreasonable; 11 the burden should remain on the Crown to justify how far that power extends. [6] Although limited departures from the Hunter standards are sometimes permitted, these generally involve minimally intrusive searches, reduced expectations of privacy, or particularly compelling state interests. 12 Yet searches incident to arrest are often precisely the opposite: highly intrusive, interfering with strong expectations of privacy, and performed on a routine basis. This is not to suggest that warrantless searches incident to arrest are never justified. But the CTLA respectfully cautions that the power of search incident to arrest must not be allowed to evolve into an unprincipled evidentiary windfall that allows police to avoid the strictures of the Hunter rules, in situations where the underlying rationale for such an extraordinary power does not apply. [7] The ancillary powers doctrine is not a one-way street, leading only towards greater police powers. The common law may incrementally contract as well as incrementally expand, and it is this Court s ongoing responsibility to establish the boundaries of common law police powers in a way that vigorously protect[s] individuals right to privacy. 13 Accordingly, just as the Waterfield/Dedman framework may be used to identify new common law police powers, the ancillary powers doctrine may circumscribe existing common law powers in circumstances where the reasonable necessity analysis weighs against continuing to recognize a particular police 9 Hunter v. Southam Inc., [1984] 2 SCR 145, 14 CCC (3d) See e.g. Kang-Brown at para. 10, R. v. Monney, [1999] 1 SCR 652 at para. 29, 133 CCC (3d) Hunter at p. 161, R. v. Collins, [1987] 1 SCR 265 at pp , 33 CCC (3d) 1, R. v. Caslake, [1998] 1 SCR 51 at para. 11, 121 CCC (3d) 97, R. v. Golden, 2001 SCC 83 at para. 84, [2001] 3 SCR 679, R. v. Cole, 2012 SCC 53 at para. 37, [2012] 3 SCR See Kang-Brown at para. 60, R. v. A.M., 2008 SCC 19 at paras , [2008] 1 SCR 569, R. v. Chehil, 2013 SCC 49 at paras Deviations from the Hunter standards will rarely be permitted in criminal proceedings: see R. v. Grant, [1993] 3 SCR 223 at p. 240, 84 CCC (3d) See Caslake at para. 15, Golden at para. 87.

10 R. v. Fearon 4 Factum of the CTLA (Alberta) power. This Court implicitly acknowledged as much in Stillman, 14 where it refused to authorize seizure of bodily samples for DNA analysis incident to arrest, and in Golden, 15 where it refused to apply the general common law power of search incident to arrest to strip searches. Where, as here, there are factors that call into question whether a common law police power should extend to a specific circumstance, the CTLA submits that the police power should be subject to rigorous scrutiny. An existing common law police power, even if broadly defined, must be strictly limited to circumstances where the Crown can demonstrate reasonably necessity. [8] Finally, the CTLA respectfully cautions that, when applying the second stage of the Waterfield/Dedman test, it is important not to treat fundamental constitutional rights as just another factor to be weighed. Although section 8 of the Charter obviously aims to strike a balance between competing interests, this does not mean that the goals of protecting individuals privacy and facilitating police investigations should always be given equal weight or priority, or that privacy rights must always be relaxed in the face of a plausible reason why police might need access to information. By constitutionally entrenching the right to be secure from unreasonable search and seizure, Canadian society accepts that there are circumstances where the police are not permitted to search or seize without first satisfying stringent prerequisites even if the police are performing an important public duty, and even if the information sought is necessary to perform that public duty. On this point, the CTLA refers to recent academic commentary which compares the Waterfield/Dedman test to the Oakes test, 16 both of which involve similar cost-benefit analyses. As Prof. MacDonnell notes, unless the constitutional rights that are being limited by a common law power remain the focal point of the Court s analysis, there is a risk that the ancillary powers doctrine will simply defin[e] rights in a way that allows the police to do their job, 17 and downgrade[] the Charter from constitutional document to mere interpretive tool R. v. Stillman, [1997] 1 SCR 607, 113 CCC (3d) See Golden at para V. MacDonnell, R. v. Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter (2012), 38 Queen's L.J. 137, V. MacDonnell, Assessing the Impact of the Ancillary Powers Doctrine on Three Decades of Charter Jurisprudence (2012), 57 Sup. Ct. Law Rev. (2d) 225, and R. Jochelson, Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory (2012), 43:3 Ottawa L. Rev See also the comments of Binnie J. in Clayton at paras and 77-79, where he discusses whether Waterfield/Dedman is less stringent than the Oakes test. 17 V. MacDonnell, R. v. Sinclair: Balancing Individual Rights at p V. MacDonnell, Assessing the Impact of the Ancillary Powers Doctrine at para. 21.

11 R. v. Fearon 5 Factum of the CTLA (Alberta) B. Searches of cell phones incident to arrest are not reasonably necessary. [9] Reasonable necessity can only be assessed in light of the various justifications that underlie searches incident to arrest. These searches are not justified because arrestees are deemed to forfeit any expectation of privacy over objects that are found in their possession. 19 Instead, the common law power is essentially a pragmatic response to the realities of everyday policing, with three distinct rationales offered to justify searches incident to arrest: First, the need to discover objects that could be a threat to the police, or that may facilitate escape, 20 Second, the need to preserve evidence found on the arrestee s person (or in the arrestee s immediate surroundings) from loss or destruction, 21 and, Finally, and most controversially, the need to discover and preserve evidence in a prompt and efficient manner. 22 (a) Police officers are protected by simply seizing mobile phones from arrestees. [10] The CTLA does not dispute that police officers have a common law power to seize cellular telephones upon arrest. It is easy to imagine how such devices, if left in the hands of arrestees, could endanger officers or facilitate escape, and seizing a phone is a minimally intrusive and completely proportionate response to the risks facing officers. It does not follow that it is reasonably necessary to search these devices, however. Mobile electronics are categorically different from other types of containers found on an arrestee s person, in that they are used to store information, not physical objects such as weapons. Speculative scenarios where officers might review phone logs to determine who an arrestee called for back-up are better handled through a principled application of the exigent circumstances exception or left to be assessed on their unique facts, and do not justify a broad power to search cell phones incident to every arrest. (b) Electronic evidence is preserved by seizing and deactivating the device. [11] The memory of mobile electronic devices is non-volatile. Simply put, like the bodily samples in Stillman, files saved on a cell phone are in no danger of disappearing. 23 There is no 19 Caslake at para Cloutier at p. 186, Stillman at para. 33, Caslake at para Cloutier at p. 186, Stillman at para. 33, Caslake at para See Cloutier at p. 186, Caslake at para. 19, R. v. Lim, [1990] OJ No 3261 (QL), 1 CRR (2d) 136 (Ont. C.J.), at paras , Stillman at para. 35 (majority) and paras (dissenting reasons of L Heureux-Dube J.), R. v. Le, 2001 BCCA 658, 160 CCC (3d) 146, at para. 8.

12 R. v. Fearon 6 Factum of the CTLA (Alberta) practical evidentiary reason why the police cannot seek a warrant or telewarrant. The Crown suggests that arrestees could arrange to have their devices deleted from afar. Although this is a logical possibility, these sorts of in terrorem arguments that rely on especially sophisticated arrestees are not enough to establish reasonable necessity, especially in the absence of an evidentiary record to demonstrate that this has become a significant problem for the police. Even if attempts to remotely delete data are commonplace, it is unclear why less intrusive responses are unable to preserve the information, such as simply turning off the phone, removing the SIM card and thereby disconnecting the device from its network, or switching on airplane mode. While not every police officer will carry around a Faraday bag, every cell phone has a battery. 24 (c) Efficient discovery and preservation of evidence does not justify the significant invasion of privacy that occurs when a mobile phone is searched. [12] Although the justification of searching for the discovery and preservation of evidence finds support in some of this Court s decisions, 25 there is good reason to exercise caution when relying on such a broad rationale for searches incident to arrest. In circumstances where there are no realistic concerns about officer safety, preventing escape, or preserving evidence from loss or destruction, it is much harder to justify a search incident to arrest as reasonably necessary. Absent those considerations, there is nothing that would reasonably prevent the police from applying for a warrant. These are cases where, in the language of Hunter, it is feasible to obtain prior authorization. 26 It is noteworthy that the American authorities generally restrict searches incident to arrest to circumstances where there is a need to search for officer safety, to prevent escape, or to prevent the destruction of evidence. 27 The CTLA submits that the factor considering necessity of the interference with individual liberty for the performance of the duty within Waterfield/Dedman should not be watered down to the point where evidentiary searches are justified on the basis of expediency, convenience, or efficiency. 23 See Stillman at para It is also unclear whether permitting searches incident to arrest would actually solve the problem of remote deletion. If a phone can be remotely deleted at any time, police will need to proceed on the basis that the contents of the phone could be erased even seconds after arrest, as they first begin their search. Accordingly, one would assume that the police would want to immediately deactivate a phone or remove it from a network even if they had the power to search immediately upon arrest, without warrant. 25 See Cloutier at p. 186, Stillman at paras , Caslake at para. 19. But note that when discussing the rationales for recognizing a police power of search incident to arrest in Cloutier, L Heureux-Dubé J. placed particular emphasis on officer safety, preventing escape, and preventing destruction of evidence: see Cloutier at pp Hunter at p See Arizona v. Gant (2009), 556 US 332, 129 S Ct 1710.

13 R. v. Fearon 7 Factum of the CTLA (Alberta) [13] The Crown frames search warrants as a time-consuming burden for police. 28 Yet on the whole, even if warrants are required, the mobile computing revolution might not be as problematic or inconvenient to the police as the Crown implies. While requiring warrants to search cell phones may strain police resources, this is not because of new or especially burdensome requirements imposed by the courts. Instead, it is the natural consequence of the explosion of digital evidence that is now available to investigators a development which, on balance, has been a boon to the police. If drafting ITOs has become an inconvenience, the CTLA submits it is primarily because of the sheer amount of valuable information police can now access from seized mobile devices. Ultimately, some investigative delay and public expense is inherent in any system that seeks to protect privacy through prior judicial authorization. Avoiding the inconvenience or expense of having to justify a significant intrusion into an arrestee s privacy cannot equate to reasonable necessity, especially when considered in light of the strong preference for prior judicial authorization recognized by Hunter and numerous subsequent cases. [14] In Stillman, this Court specifically noted that the cases that supported searches for the prompt and efficient discovery and preservation of evidence were limited to searches of motor vehicles, a relatively less intrusive search. 29 In light of its recent pronouncements involving computer searches, this Court does not need to be reminded of the profound privacy concerns raised by state intrusions into our electronic devices. 30 The more intrusive a search, the higher level of justification that is required, and the higher degree of constitutional protection that should be afforded. 31 As a result, this Court should not recognize the efficient discovery of evidence as a valid reason to search cellular telephones incident to arrest. There is simply no reasonable necessity to do so. [15] The Crown attempts to distinguish Stillman and Golden by emphasizing the significant interference with an arrestee s bodily integrity that occurs during a strip search or seizure of bodily substances, and argues that searches of mobile electronics are necessarily of a less invasive 28 See Respondent s Factum at paras Stillman at para. 39. Note also Cory J. s observation: This type of search is not in issue in this case and I need not express any opinion with regard to them. 30 See R. v. Morelli, 2010 SCC 8 at paras. 2-3, [2010] 1 SCR 253, Cole at paras. 1-3, 49, Vu at paras See also R. v. Hiscoe, 2013 NSCA 48, at para See Golden at para. 88, and R. v. Simmons, [1988] 2 SCR 495 at p. 517, 45 CCC (3d) 296: it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection.

14 R. v. Fearon 8 Factum of the CTLA (Alberta) character. 32 Yet this compares apples to oranges; Stillman and Golden addressed breaches of bodily privacy, while searches of cell phones implicate informational privacy. 33 This Court s comments about the particularly intrusive nature of strip searches and seizures of bodily substances should not be read so as to minimize the impact of searches that intrude upon informational privacy. In light of the volume and nature of personal information that is revealed, it is not hyperbole to suggest that the search of an arrestee s smart phone is close to being the informational privacy equivalent of a strip search. Even if a cell phone does not have as strong a claim to constitutional protection as a person s body, there is nothing incongruous about requiring a warrant to search a cell phone while also permitting warrantless strip searches. 34 Strip searches are invariably time-sensitive, and must be carried out relatively quickly in order to achieve their goals of preventing the loss of evidence and locating weapons. This is, in most cases, inconsistent with requiring a warrant. 35 With cell phones, the reasonable necessity balance is different, and as a result, so too are the constitutional requirements. C. Warrantless searches of cell phones risk breaches of solicitor-client privilege. [16] When this Court weighs the extent of the interference with individual liberty in the second stage of the Waterfield/Dedman analysis, one potential infringement of arrestees rights is of particular concern to the CTLA: the very real possibility that these searches will result in lowvisibility breaches of solicitor-client privilege. The CTLA submits that this is an important consideration that must be weighed in the reasonable necessity analysis, because solicitor-client communications enjoy exceptional protection in Canadian law. Solicitor-client privilege is a civil right of supreme importance, 36 both an evidentiary rule and a substantive rule of law, 37 and a principle of fundamental justice. 38 In the context of the criminal law, privileged communications are jealously protected in order to avoid lawyers becoming, even involuntarily, a resource to be 32 See Respondent s Factum at paras See R. v. Tessling, 2004 SCC 67 at paras , [2004] 3 SCR See Respondent s Factum at para See MacDonald at para. 32, where this Court recently noted that the police power to conduct a safety search is necessarily warrantless, because such searches are, in effect, driven by exigent circumstances. 36 Lavallee, Rackel & Heintz v. Canada, 2002 SCC 61 at para. 36, [2002] 3 SCR Descôteaux v. Mierzwinski, [1982] 1 SCR 860 at p. 873, 70 CCC (2d) R. v. McClure, 2001 SCC 14 at para. 41, [2001] 1 SCR 445.

15 R. v. Fearon 9 Factum of the CTLA (Alberta) used in the criminal prosecution of their clients. 39 This Court has warned that solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. 40 [17] While lawyer-client communication once depended on the rotary telephone and the postman, this genteel era has passed. Just as the lives of ordinary Canadians have shifted online, lawyers communication with clients has also gone digital. In the hyper-connected legal practice of the 21 st century, it is now common knowledge that lawyers and clients regularly communicate electronically. Rapid-fire exchanges between lawyers and clients are ubiquitous. [18] As this Court has recognized, electronic devices are not ordinary receptacles, like briefcases or backpacks. 41 Modern smart phones have enormous storage capacity, and can be used to remotely access information that is not physically stored on the device, including s and other forms of correspondence. As a result, clients now often carry in their pocket the functional equivalent of a complete copy of the correspondence file that once would have been stored in a filing cabinet, locked in their lawyer s office. If an arrestee has hired or even consulted a lawyer, it is extremely likely that privileged discussions between the arrestee and the lawyer will be accessible via the person s cellular phone. This has significantly increased the risk that police will come across this correspondence during a post-arrest search. 42 [19] Searches incident to arrest are low visibility police-citizen interactions. 43 They generally take place away from a police station, usually near the scene of an arrest, and without careful recordkeeping or oversight by senior officers. Although the Crown emphasizes trial judges responsibility to carefully assess and scrutinize police compliance with limits on searches incident to arrest, 44 in the vast majority of cases, such ex post facto judicial scrutiny will only occur if officers discover incriminating evidence that is later tendered in the course of a criminal 39 Maranda v. Richer, 2003 SCC 67 at para. 12, [2003] 3 SCR Lavallee at para Vu at paras Of course, until the advent of mobile electronics such as cell phones, inadvertent discovery of solicitor-client correspondence was rarely a realistic concern when a person was searched incident to arrest, simply because most arrestees do not leave hard copies of legal correspondence in places accessible to police during these searches. 43 On the topic of these low visibility interactions, and the difficulties courts have regulating them, see generally: J. Stribopoulos, Packer's Blind Spot: Low Visibility Encounters and the Limits of Due Process and Crime Control in F. Tanguay-Renaud & J. Stribopoulos, eds., Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (Oxford: Hart, 2012) at pp , , and J. Stribopoulos, In Search of Dialogue at pp Respondent s Factum at para. 50.

16 R. v. Fearon 10 Factum of the CTLA (Alberta) trial. In many cases when police exceed their search powers perhaps even the majority of cases a breach will simply never come to the attention of a court. In the context of searches of cell phones, an officer with no special training in electronic searches may easily stumble across privileged communications (or other highly personal information) even in the course of a cursory inspection of a phone, and even if the officer is acting in good faith. Unless the officer lays charges and the Crown relies on evidence discovered on the phone, there will be no practical remedy for such an unjustified or overbroad search. Even worse, the arrestee herself may never find out that her phone was searched, and may never even learn that privilege was breached. 45 [20] Canadian law recognizes the need to prevent breaches of privacy before they occur. 46 In the context of these sorts of low-visibility police-citizen interactions, this Court has specifically warned that the judiciary must exercise its custodial role by setting meaningful limits on the scope of police powers. 47 Here, prior judicial authorization is the best prophylactic measure to prevent unjustified breaches of both privilege and privacy. It not only ensures that searches are based on credible probabilities, but equally important, it allows a judge to decide whether to place conditions on how a search is conducted. 48 While not every search of a cell phone will require a search protocol to prevent possible breaches of privilege, 49 the CTLA submits that a neutral decision-maker, acting judicially, with full and frank disclosure, is best positioned to determine whether any special conditions are required to safeguard solicitor-client privilege. PARTS IV AND V COSTS AND ORDER SOUGHT [21] The CTLA does not seek costs, and asks that no costs be awarded against it. The CTLA respectfully requests leave to present oral argument not exceeding 10 minutes in length. ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 31 st day of March, 2014: Dane F. Bullerwell Counsel for the Intervener, Criminal Trial Lawyers Association (Alberta) 45 Without awareness that a search has occurred, as a practical matter, there can be no police accountability: see R. v. Tse, 2012 SCC 16 at paras , [2012] 1 SCR See e.g. Hunter at p. 160, Feeney at para. 45, Golden at para. 89, Hiscoe at para Mann at para See Descôteaux v. Mierzwinski at p See Vu at paras

17 R. v. Fearon 11 Factum of the CTLA (Alberta) PART VI TABLE OF AUTHORITIES CASES Para. #s Arizona v. Gant (2009), 556 US 332, 129 S Ct Cloutier v. Langlois, [1990] 1 SCR 158, 53 CCC (3d) 257 2, 9, 12 Dedman v. The Queen, [1985] 2 SCR 2, 20 CCC (3d) 97 2, 3 Descôteaux v. Mierzwinski, [1982] 1 SCR 860, 70 CCC (2d) , 20 Hunter v. Southam Inc., [1984] 2 SCR 145, 14 CCC (3d) 97 5, 6, 12, 20 Lavallee, Rackel & Heintz v. Canada, 2002 SCC 61, [2002] 3 SCR Maranda v. Richer, 2003 SCC 67, [2003] 3 SCR R. v. A.M., 2008 SCC 19, [2008] 1 SCR R. v. Aucoin, 2012 SCC 66, [2012] 3 SCR R. v. Caslake, [1998] 1 SCR 51, 121 CCC (3d) 97 5, 7, 9, 12 R. v. Chehil, 2013 SCC 49, 301 CCC (3d) R. v. Clayton, 2007 SCC 32, [2007] 2 SCR 725 2, 3, 8 R. v. Cole, 2012 SCC 53, [2012] 3 SCR 34 5, 14 R. v. Collins, [1987] 1 SCR 265, 33 CCC (3d) 1 5 R. v. Fearon, 2013 ONCA 106, 114 OR (3d) 81 4 R. v. Godoy, [1999] 1 SCR 311, 131 CCC (3d) R. v. Golden, 2001 SCC 83, [2001] 3 SCR 679 5, 7, 14, 20 R. v. Grant, [1993] 3 SCR 223, 84 CCC (3d) R. v. Hiscoe, 2013 NSCA 48, 297 CCC (3d) 35 14, 20 R. v. Kang-Brown, 2008 SCC 18, [2008] 1 SCR 456 2, 3, 5, 6 R. v. Le, 2001 BCCA 658, 160 CCC (3d) R. v. Lim, [1990] OJ No 3261 (QL), 1 CRR (2d) 136 (Ont. C.J.) 9 R. v. MacDonald, 2014 SCC 3, 303 CCC (3d) 113 2, 3, 15 R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59 2, 20 R. v. McClure, 2001 SCC 14, [2001] 1 SCR

18 R. v. Fearon 12 Factum of the CTLA (Alberta) R. v. Morelli, 2010 SCC 8, [2010] 1 SCR R. v. Orbanski and Elias, 2005 SCC 37, [2005] 2 SCR 3 2, 3 R. v. Simmons, [1988] 2 SCR 495, 45 CCC (3d) R. v. Stillman, [1997] 1 SCR 607, 113 CCC (3d) 321 7, 9, 11, 14 R. v. Tessling, 2004 SCC 67, [2004] 3 SCR R. v. Tse, 2012 SCC 16, [2012] 1 SCR TEXTS & ARTICLES Jochelson, R. Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory (2012), 43:3 Ottawa L. Rev. 355 MacDonnell, V. Assessing the Impact of the Ancillary Powers Doctrine on Three Decades of Charter Jurisprudence (2012), 57 Sup. Ct. Law Rev. (2d) 225 MacDonnell, V. R. v. Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter (2012), 38 Queen's L.J. 137 Penney, S., Rondinelli, V., and Stribopoulos, J. Criminal Procedure in Canada (Markham: LexisNexis Canada, 2011) Stribopoulos, J. In Search of Dialogue: The Supreme Court, Police Powers and the Charter (2005), 31 Queen s L.J. 1 at pp Stribopoulos, J. Packer's Blind Spot: Low Visibility Encounters and the Limits of Due Process and Crime Control in F. Tanguay-Renaud & J. Stribopoulos, eds., Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (Oxford: Hart, 2012) , 19 19

19 R. v. Fearon 13 Factum of the CTLA (Alberta) PART VII STATUTORY PROVISIONS None cited.