Drug trial. Vehicle stop. Police took photos from the screen of a locked cell phone that was found in the closed center console of the vehicle. The settings on the phone allowed notifications to be displayed on the screen. Messages were indicative of possible criminal behaviour. Issue regarding compliance with Fearon, 2014 SCC 77.

Held: Section 8 breach. Evidence excluded.

In view of the balancing required by Fearon, no aspect of cell phone searches (including displays of incoming messages) may properly be treated within any form of a “documents in possession” exception. “All police access to seized phones must conform to Fearon standards … Here the Crown has failed to prove both there was any need to promptly access these phones, ie to access them without a warrant, and that the police … took detailed notes of what they examined and how the devices were searched.” Fearon criteria not met.

P. Moreau – Defence Counsel