Summary

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Summary

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Charter of Rights - Constitutional law - Search and seizure - Search incident to arrest - Evidence - Whether a search of the appellant’s cell-phone during his arrest breached s. 8 of the Charter - Whether the legal framework governing searches incident to arrest extends to cell-phones - Whether a cell phone exception should be made to the common law power of police to search incident to arrest - Whether evidence found on the appellant’s cell-phone during his arrest should have been excluded pursuant to s. 24(2) of the Charter?

Two men robbed a merchant and one of the robbers carried a gun. The armed robber wore a red hoodie and he got into the front passenger seat of the get-away car. When the police found the get-away car, they discovered a red hoodie on the front passenger seat and a loaded handgun under that seat. The gun bore distinctive etchings. The police suspected the appellant had been involved and they arrested him. One of the arresting officers conducted a pat down search and seized the appellant’s cell phone. The cell phone was turned on and it was not password-protected or locked. The officer searched the cell phone and discovered incriminating evidence. The appellant admitted that he was one of the robbers and that he wore a red and black hoodie. However, he claimed that the gun used in the robbery was a fake and that he threw it away after the robbery. A voir dire was held to determine whether the search of the appellant’s cell phone incident to his arrest had violated s. 8 of the Charter of Rights and Freedoms and whether the incriminating evidence found on the cell phone should be admitted. The trial judge admitted the evidence and relied on it to convict the appellant of armed robbery and possession of a loaded restricted firearm without a license or a registration certificate.

Lower Court Rulings