Sign in with Twitter Sign in with Facebook

Type the topic in any language to check out real time results of Who's Talking on Social Media Sites


Trending Topics: #THEJTEAMRadioVaiDesmaiarEspecialDarlos#WeLoveMummyOTYTürklükNeferi EsatBOZKURT#GugukDevletiyseDefol#AskBuymusSubatta40Binle MusterihOlalimZEKİMUREN MorgulOlayTvde#影山飛雄生誕祭2014KatliamcıZihniyetMaraşı AnmayıYasaklıyor#AKPfurkanVakfınınBüyümesiniİstemiyor#RIPMummyTarjomani#AnittaComoDeusaSolaris#JustinIsLookingForNewHomeInBrazil#DavidLuizNoDomingoShow#アイコンにキスしてって言わせると萌えるらしい#ShortGirlAppreciationDay#NewSingleJustinFeatMcGui#LeaveItIn2014#NYPDLivesMatter#enuzungecedeben#olympiascreenHoyer to Cameron#PatsVsJetsラバキー#EdepYaHuマガツMarcus Williams21 Aralık#KCvsPIT4期ありがとうSurprise SurpriseFelipe AndersonBilly Davies冬至冬休み時間The Terminal終業式Men In Black 3Rodgers to NelsonFaustãoMadagascar 3Roman HarperChris OwensElianaChristmasJane BownScott SolomonZé Felipe#SaintsvsFalcons#802rcKony EalyBugsy Maloneシーズン2Kareem JacksonSaintsJimmy GrahamKuhnNight At The Museum 3PK movieBenji MaddenAmerican SniperChris KyleChampsLegend of Korranfl scoresnfl scheduledetroit lionsEastbaykate upton49erswinter solsticenfl playoff pictureAmy AdamsNFLphiladelphia eaglesAmber RoseNYPDMore

Most recent 19 results returned for keyword: Supreme Court (Search this on MAP)

https://plus.google.com/104525733175678094329 Reliable Divorce : Reliable Divorce | DIVORCE IN BC BY RELIABLE DIVORCE If you are looking for an affordable solution ...
Reliable Divorce | DIVORCE IN BC BY RELIABLE DIVORCE

If you are looking for an affordable solution to filing your divorce, Reliable Divorce can help. We have helped thousands of couples successfuly file their divorce papers. Fast, affordable and 100% guaranteed.


If you live in British Columbia and are wanting to file for a divorce, the good news is, this is something that you can do yourself. No more expensive attorney fees, or long court process and hearing dates that you must attend. Now you can get a divorce in BC by Reliable Divorce(http://www.reliabledivorce.ca/province/british_columbia_divorce.htm), using our proven process which has helped tens-of-thousands across Canada.

Every month, thousands of couples file their divorces without an attorney and successfully complete their divorce in two to three months, usually without any court hearing.

A divorce is a legal procedure for ending your divorce. The divorce papers and separation agreement that you sign are filed in the Supreme Court of BC, starting with filing the “Notice of Family Claim”. After the divorce has been fully processed, and the clearance from the Divorce Registry has been obtained from Ottawa, an order for divorce is signed by the Supreme Court judge, making your divorce official. The final divorce papers are sent to you in the mail by the clerk of the court.

Before you are able to file your divorce (http://www.reliabledivorce.ca/index.htm), you must meet the requirement of filing for divorce, which is that you have lived in British Columbia for at least 12 months, and that you are able to file your divorce on one of the three grounds available, which are as follows:

1. Filing on the grounds of one-year separation. This does not mean that you must be living in separate residences. Simply put, you must be living “separate and apart” from each other for a period of one year, whether you still live under the same roof, or live at separate residences. Filing on the grounds of adultery.

2. Filing on the grounds of cruelty.

Many people are deterred from filing their own divorce because they don’t know if they can file given their particular circumstances. It doesn’t matter what circumstances you may have, whether it be minor children, or substantial assets and debts, Reliable Divorce can handle any type of divorce situation, including the following:

1. Divorce with children.

2. Divorce involving the division of assets and debts, including retirement or investment accounts, real property, personal property, etc.

3. Divorce from a spouse who lives in another country.

4. Divorce from a spouse whose whereabouts are unknown.

5. Divorce including support.

6. Military divorces

Whatever your situation, you can file and obtain a divorce in BC by Reliable Divorce, and eliminate the high cost of a divorce lawyer. We are experienced in preparing your divorce in BC (http://www.reliabledivorce.ca/divorce-papers.htm), in accordance to the “Divorce Act” and the “Family Law Act”.

Visit the Reliable Divorce Canada website to find out more about our simple and affordable options for obtaining a divorce. A divorce in BC by Reliable Divorce may be the best solution available for you. We provide professionally prepared BC divorce papers, and offer full support from an experienced representative. We take the worries out of filing your own divorce in BC.
BRITISH COLUMBIA DIVORCE FORMS | File Your British Columbia Divorce Online.
British Columbia Divorce forms and papers to file your online divorce in BC. Free British Columbia separation agreement. Save thousands over an British Columbia divorce lawyer.
3 minutes ago - Via - View -
https://plus.google.com/114118370083899123137 walter taylor : Oklahoma and Nebraska Marijuana Sales in Colorado are Against Foreign Laws, So Stop it! Nebraska and...
Oklahoma and Nebraska Marijuana Sales in Colorado are Against Foreign Laws, So Stop it!

Nebraska and Oklahoma – both red states – don’t like that. And they want the Supreme Court to do something about it. Whatever happened to the Tenth Amendment? What ever happened to that oppressive federal government meddling where it doesn’t belong?

#StatesRights #Marijuana  #LegalizeIt
Oklahoma and Nebraska Marijuana Sales in Colorado are Against Foreign Laws, So Stop it!
Red States Nebraska and Oklahoma incredibly claim federal law trumps state law, and that foreign laws are more important than state laws.
5 minutes ago - Via Reshared Post - View -
https://plus.google.com/111576948647979662819 Ann Arbor DUI Attorney Stacey M. Washington, Attorney and Counselor : NEVER CONSENT TO A SEARCH You have a right to be free from search, and the cops either need a search...
NEVER CONSENT TO A SEARCH You have a right to be free from search, and the cops either need a search warrant or some other constitutional justification to support why they are searching you, your car or your home. You have the right to say NO. Then the cops have to convince a Judge that there is a good legal basis for the search, and you get to fight the seizure with a Motion to Suppress when you go to Court...if you consent, you only make it easier for the cops to convict you.

Howard W. Bailey, Esq.
Certified by the NJ Supreme Court as a Criminal Trial Attorney
Admitted as an Expert in Criminal Defense by the NJ Superior Court.
550 Broad Street, Suite 601
Newark, NJ 07102
973-982-1200

ANY COURT. ANY CRIME. ANY TIME.

#njcriminaldefenselawyer   #njcriminaldefenseattorney  
https://lh3.googleusercontent.com/-UinIEp9Dj20/VJX-bDjB4QI/AAAAAAAABnQ/Cvf0AH8Zu9M/w506-h750/S%2526S%2B1.jpg
7 minutes ago - Via Reshared Post - View -
https://plus.google.com/116546007964858387617 Shane Graef : Oklahoma and Nebraska Marijuana Sales in Colorado are Against Foreign Laws, So Stop it! Nebraska and...
Oklahoma and Nebraska Marijuana Sales in Colorado are Against Foreign Laws, So Stop it!

Nebraska and Oklahoma – both red states – don’t like that. And they want the Supreme Court to do something about it. Whatever happened to the Tenth Amendment? What ever happened to that oppressive federal government meddling where it doesn’t belong?

#StatesRights #Marijuana  #LegalizeIt
Oklahoma and Nebraska Marijuana Sales in Colorado are Against Foreign Laws, So Stop it!
Red States Nebraska and Oklahoma incredibly claim federal law trumps state law, and that foreign laws are more important than state laws.
12 minutes ago - Via Reshared Post - View -
https://plus.google.com/112398265041024324940 State Times : Dear Editor, Panchayats, Gram Sabhas, NGOs and other local bodies must come forward to eradicate bonded...
Dear Editor, Panchayats, Gram Sabhas, NGOs and other local bodies must come forward to eradicate bonded and child labour and coordinate with the authorities. In a judgement on 15th October, 2012, the Supreme Court Bench had asked the government to…
news.statetimes.in/bonded-labour/

17 minutes ago - Via - View -
https://plus.google.com/114771922671645308683 All College Students' Association (R) : The New CET ACT: Parents and Students Anxious! With effect from year 2015-16, an Act will be brought...
The New CET ACT: Parents and Students Anxious!

With effect from year 2015-16, an Act will be brought into effect in Karnataka, which will significantly change the seat distribution and fee fixation in the colleges imparting professional education courses like M.B.B.S, B.E, B.D.S, B.Arch, B.A.M.S etc. in the state.

This Act, called The Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 was passed by the State Government as per the directions of the Supreme Court to all the states with more than one college imparting education in any of the disciplined mentioned above.

As per the Act, a rank in Common Entrance Test, popularly known as CET will no more be a criteria to get seats in private unaided colleges which are in quite a large number. 172 out of 212 engineering  and 30 out of 42 medical colleges in the state are private unaided institutions. 85% of the seats in these colleges will be henceforth filled through a single entrance test conducted by an Association of all these private unaided colleges in the state, which will be open to non-Karnataka students as well.  This test will be similar to COMEDK. The NRI quota constitutes remaining 15% of the seats.

Also, two committees will be formed as per the Act, called the Admission Overseeing Committee to regulate the admissions and Fee Regulatory Committee for determination and regulation of fee for admission in private unaided professional educational institutions. Both committees will have retired High Court Judges as their chairman who will be nominated by the Chief Justice of Karnataka High Court.

If this Act comes into effect, the fee structure in private unaided colleges will be different from each other depending upon the infrastructure, facilities, expenditure, location etc of the respective college. The institution will have to submit their proposed fee structure before the Fee Regulatory Committee before the end of December which will be finally decided by the committee and will remain fixed for the next three years.

In spite of the state government claiming that the said Act is a model Act in the country and will remove all difficulties and confusion in connection to the seat matrix and fee fixation, this Act suffers from severe shortcomings.

Students belonging to the lower income families are the worst hit if this Act comes into effect. There will be a steep fall in the number of seats available under CET. There will be a decrease of about 85% in engineering and about 50% decrease in medical seats available under CET when compared to the year 2014-15. Since large number of top engineering colleges belong to private unaided institutions, it will be a day dream for students with low income who have merit to get seats in such colleges, as the fees in these colleges will be high as per the new law, and hence unaffordable to them.

Though the Minister of Medical Education of State claim that the severe shortage of medical seats will be solved by building government medical colleges in all the 30 districts of our state by 2018, the assurance gives no relief to the present shortage of medical seats.

The students from the middle class families will also be considerably effected as the government’s control over the private unaided colleges will weaken. This will definitely lead to a alarming rise in collection of capitation fees in one form or the another like donations etc..

The government claims that it will be able control this practice as The Fee Regulatory Committee is given enough powers to check it through the Act. This assurance seems to far from reality as the State Government already had similar powers as per The Karnataka Educational Institutions (Prohibition of Capitation Fees) Act, 1984 and it is a well known fact that in spite of the Act being in effect from last 29 years it has miserably failed to check the alarming rise in capitation fees. With lack of clear strategy and political will, these rules and powers are confined only  to the books and rarely is brought into action.

Another matter of great concern is the illegal practices committed while filling the seats through COMEDK. A number of students who get seats through COMEDK surrender their seats for money, which is then converted into management seats earning lakhs of rupees to the colleges. This unethical practice came into limelight when the fake student scam in COMEDK hit the headlines this year and while investigation it was known that 556 non-Karnataka students have surrendered their COMEDK seats in last three years.

Though the Admission Overseeing Committee is given sufficient powers to monitor COMEDK, it is still unclear regarding how they are going to stop such practices as no action can be taken against students who get the seats and then surrender it for money, due to absence of any such provision and difficulty in determining  whether the student surrendered it for money or not.

With shortage in number of seats under CET and lack of clarity about the effective implementation of the Act, lakhs of parents and students are said to be worried and anxious regarding this new system to be coming into effect from the year 2015-2016.

-Dheeraj K. Shetty, Executive President, All College Students’ Association ®, Karnataka

( A State level non-political students organisation registered under the  Karnataka Societies Registration  Act, 1960)
https://lh6.googleusercontent.com/-YNqGZFkVkDw/VJc1mkEMtNI/AAAAAAAAACg/XvFlMDIHYj0/w506-h750/255595-be.jpg
23 minutes ago - Via Google+ - View -
https://plus.google.com/111462413352202424588 BHANGAL LAW FIRM : SUPREME COURT OF CANADA Citation:  R. v. Fearon, 2014 SCC 77 Date: 20141211 Docket: 35298 Between...
SUPREME COURT OF CANADA

 

Citation:  R. v. Fearon, 2014 SCC 77

Date: 20141211

Docket: 35298

 

Between:

Kevin Fearon

Appellant

and

Her Majesty The Queen

Respondent

- and -

Director of Public Prosecutions of Canada, Attorney General of Quebec, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and 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

 

Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

 

Reasons for Judgment:

(paras. 1 to 99)

 

Dissenting Reasons:

(paras. 100 to 198)

Cromwell J. (McLachlin C.J. and Moldaver and Wagner JJ. concurring)

 

Karakatsanis J. (LeBel and Abella JJ. concurring)

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 


 

 


r. v. fearon

Kevin Fearon                                                                                                  Appellant

v.

Her Majesty The Queen                                                                              Respondent

and

Director of Public Prosecutions of Canada,

Attorney General of Quebec,

Attorney General of Alberta,

Samuelson‑Glushko Canadian Internet Policy and 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

Indexed as:  R. v. Fearon

2014 SCC 77

File No.:  35298.

2014:  May 23; 2014:  December 11.

Present:  McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

on appeal from the court of appeal for ontario

                    Constitutional law — Charter of Rights  — Search and seizure — Search incident to arrest — Cell phone found on accused and searched without warrant  — Text message and photos on cell phone introduced as evidence at trial — Whether general common law framework for searches incident to arrest needs to be modified in case of cell phone searches incident to arrest — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — If so, whether evidence discovered in search should be excluded — Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .

                    Police — Powers — Search incident to arrest — Warrantless search of cell phone — Text message and photos on cell phone introduced as evidence at trial of accused — Whether common law police power to search incident to arrest permits cell phone searches — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — Canadian Charter of Rights and Freedoms , s. 8 .

                    Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery.  The robbers grabbed some bags, one of which was filled with jewellery, and fled in a black vehicle.  The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun.  Later that evening, they located and secured the getaway vehicle, and arrested F and C.  During the pat‑down search of F conducted incident to arrest, police found a cell phone in F’s pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun.  A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo.  Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

                    On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8  of theCharter .  She admitted the photos and text message and convicted F of robbery with a firearm and related offences.  The Court of Appeal dismissed an appeal.

                    Held (LeBel, Abella and Karakatsanis JJ. dissenting): The appeal should be dismissed.

                    Per McLachlin C.J. and Cromwell, Moldaver and Wagner JJ.:  The common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, although some modification of the existing common law framework is necessary because the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest.

                    The power to search incident to arrest is extraordinary in that it permits reasonable searches when the police have neither a warrant nor reasonable and probable grounds.  That the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested.  This power must be exercised in the pursuit of a valid purpose related to the proper administration of justice and the search must be truly incidental to the arrest.

                    Like other searches incident to arrest, prompt cell phone searches incident to arrest may serve important law enforcement objectives:  they can assist police to identify and mitigate risks to public safety; locate firearms or stolen goods; identify accomplices; locate and preserve evidence; prevent suspects from evading or resisting law enforcement; locate the other perpetrators; warn officers of possible impending danger; and follow leads promptly.  Cell phone searches also have an element of urgency, which supports the extension of the power to search incident to arrest.

                    Safeguards must be added to the law of search of cell phones incident to arrest in order to make that power compliant with s. 8  of the Charter . Ultimately, the purpose of the exercise is to strike a balance that gives due weight to the important law enforcement objectives served by searches incidental to arrest and to the very significant privacy interests at stake in cell phone searches. Consequently, four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8 . First, the arrest must be lawful. Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes.  In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.  Third, the nature and the extent of the search must be tailored to its purpose.  In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.  Finally, the police must take detailed notes of what they have examined on the device and how they examined it.  The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration.  The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review.  It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

                    None of the three main modifications to the common law power to search cell phones incident to arrest previously suggested in the case law strike the balance required by s. 8 .  First the considerations that prompted the Court to take a categorical approach with respect to the non‑consensual seizure of bodily samples are entirely absent in this case.  Second, police will rarely have reasonable and probable grounds to search for safety purposes or to believe that evidence of the offence will be found on the phone at the time of arrest.  Third, allowing cell phone searches only in exigent circumstances would share the pitfalls of imposing a standard of reasonable and probable grounds, and would give almost no weight to the law enforcement objectives served by prompt searches.  Moreover, the search incident to arrest exception to the warrant requirement is not a subset of the exigency exception.

                    In this case, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, breached F’s s. 8  rights.  Although they were truly incidental to F’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which F had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking.

                    Despite that breach, the evidence should not be excluded.  The impact of the breach on F’s Charter ‑protected interests favours exclusion of the evidence, but it does so weakly.  Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F’s privacy was not particularly grave.  Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact.  However, other factors favour inclusion.  As to the seriousness of the Charter ‑infringing state conduct, the dominant view at the time of the search approved cell phone searches incident to arrest.  In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone.  While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused’s potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence.  Society’s interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth‑seeking function of the justice system.

                    Per LeBel, Abella and Karakatsanis JJ. (dissenting): Searches of personal digital devices — including personal computers — risk serious encroachments on privacy and are therefore not authorized under the common law power to search incident to arrest. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the intensely personal and uniquely pervasive privacy interests in our digital devices. Section 8  of the Charter  provides constitutional protection for privacy, which includes the right to be free of the threat of unreasonable intrusions on privacy and the right to determine when, how, and to what extent we release personal information.

                    Generally, the law enforcement interests will outweigh the privacy interest that an arrested person has in the physical items in his immediate vicinity. However, because the privacy interest in a digital device is quantitatively and qualitatively different from that in other physical items traditionally subject to such searches, the constitutional balance between privacy and the needs of law enforcement with respect to the search of cell phones and similar digital devices incident to arrest must be reassessed, using first principles.

                    A cell phone cannot be treated like any other piece of physical evidence that may be found on an arrestee and searched incident to arrest. Individuals have a high expectation of privacy in their digital devices because they store immense amounts of information, are fastidious record keepers, retain files and data even after users think they have been destroyed, make the temporal and territorial limitations on a search incident to arrest meaningless, and can continue to generate evidence even after they have been seized.

                    The law enforcement interests relate to the three purposes justifying searches incident to arrest:  safety, the preservation of evidence, and the discovery of evidence. Digital devices are not physically dangerous weapons and they cannot conceal such a weapon. The mere possibility that a phone could have been used to summon backup or that evidence on the cell phone could be remotely deleted should not justify a search incident to arrest.  Although the delay of obtaining a warrant may come at a cost to the prompt pursuit of the investigation, this cost must be weighed against the privacy interest in a personal digital device.

                    The most pressing state interests can be accommodated by the existing doctrine that permits warrantless searches under exigent circumstances. Exigent circumstances exist when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent destruction of evidence can be prevented by a warrantless search. Where exigent circumstances do not exist, a telewarrant can usually be obtained relatively quickly and with little harm to the investigation.

                    Thus, the weighty privacy interest that an arrested person has in a personal digital device will outweigh the state interest in performing a warrantless search incident to arrest, except in exigent circumstances.

                    Searches that treat a cell phone merely as a physical object continue to be permissible incident to arrest since it is the information that attracts a heightened expectation of privacy. As such, the police may usually seize a phone incident to arrest in order to preserve the evidence, but will require a warrant before they can search its contents.

                    In performing a search of a cell phone, whether under exigent circumstances or pursuant to a warrant, the police officers must not extend that search beyond the scope of the grounds permitting the search.

                    Tailoring the scope of the common law power to search incident to arrest does not adequately protect the reasonable expectations of privacy in personal digital devices. The majority’s proposed modifications generate problems of impracticality, police uncertainty, and increased after-the-fact litigation. And while detailed note-taking may be desirable, it may prove to be an impractical requirement, and it is not an adequate remedy to what would be an extraordinary search power. Fundamentally, the police are not in the best position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a digital device, and, if they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation.

                    Here, the searches of F’s phone were not justified and unreasonably infringed his privacy, in violation of s. 8  of theCharter . The facts of this case fall far below either standard for exigency.

                    The evidence which was unconstitutionally obtained should be excluded.  The state conduct was not particularly objectionable, given that the police acted in good faith, and the evidence is reliable; however, the high privacy interest individuals have in their electronic devices tips the balance in favour of exclusion. Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices.  This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal ― or indeed more pervasive ― than that found in an individual’s personal digital device or computer.  To admit evidence obtained in breach of this particularly strong privacy interest would tend to bring the administration of justice into disrepute.
49 minutes ago - Via Google+ - View -
https://plus.google.com/114935049765540915555 Avtar Bhangal, Criminal Defence Lawyers : SUPREME COURT OF CANADA ---- CELL PHONE SEARCHES Citation:  R. v. Fearon, 2014 SCC 77 Date: 20141211...
SUPREME COURT OF CANADA ---- CELL PHONE SEARCHES

 

Citation:  R. v. Fearon, 2014 SCC 77

Date: 20141211

Docket: 35298

 

Between:

Kevin Fearon

Appellant

and

Her Majesty The Queen

Respondent

- and -

Director of Public Prosecutions of Canada, Attorney General of Quebec, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and 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

 

Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

 

Reasons for Judgment:

(paras. 1 to 99)

 

Dissenting Reasons:

(paras. 100 to 198)

Cromwell J. (McLachlin C.J. and Moldaver and Wagner JJ. concurring)

 

Karakatsanis J. (LeBel and Abella JJ. concurring)

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 


 

 


r. v. fearon

Kevin Fearon                                                                                                  Appellant

v.

Her Majesty The Queen                                                                              Respondent

and

Director of Public Prosecutions of Canada,

Attorney General of Quebec,

Attorney General of Alberta,

Samuelson‑Glushko Canadian Internet Policy and 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

Indexed as:  R. v. Fearon

2014 SCC 77

File No.:  35298.

2014:  May 23; 2014:  December 11.

Present:  McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

on appeal from the court of appeal for ontario

                    Constitutional law — Charter of Rights  — Search and seizure — Search incident to arrest — Cell phone found on accused and searched without warrant  — Text message and photos on cell phone introduced as evidence at trial — Whether general common law framework for searches incident to arrest needs to be modified in case of cell phone searches incident to arrest — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — If so, whether evidence discovered in search should be excluded — Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .

                    Police — Powers — Search incident to arrest — Warrantless search of cell phone — Text message and photos on cell phone introduced as evidence at trial of accused — Whether common law police power to search incident to arrest permits cell phone searches — Whether search of cell phone incident to arrest was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — Canadian Charter of Rights and Freedoms , s. 8 .

                    Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery.  The robbers grabbed some bags, one of which was filled with jewellery, and fled in a black vehicle.  The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun.  Later that evening, they located and secured the getaway vehicle, and arrested F and C.  During the pat‑down search of F conducted incident to arrest, police found a cell phone in F’s pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun.  A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo.  Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

                    On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8  of theCharter .  She admitted the photos and text message and convicted F of robbery with a firearm and related offences.  The Court of Appeal dismissed an appeal.

                    Held (LeBel, Abella and Karakatsanis JJ. dissenting): The appeal should be dismissed.

                    Per McLachlin C.J. and Cromwell, Moldaver and Wagner JJ.:  The common law power to search incident to a lawful arrest permits the search of cell phones and similar devices found on the suspect, although some modification of the existing common law framework is necessary because the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest.

                    The power to search incident to arrest is extraordinary in that it permits reasonable searches when the police have neither a warrant nor reasonable and probable grounds.  That the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested.  This power must be exercised in the pursuit of a valid purpose related to the proper administration of justice and the search must be truly incidental to the arrest.

                    Like other searches incident to arrest, prompt cell phone searches incident to arrest may serve important law enforcement objectives:  they can assist police to identify and mitigate risks to public safety; locate firearms or stolen goods; identify accomplices; locate and preserve evidence; prevent suspects from evading or resisting law enforcement; locate the other perpetrators; warn officers of possible impending danger; and follow leads promptly.  Cell phone searches also have an element of urgency, which supports the extension of the power to search incident to arrest.

                    Safeguards must be added to the law of search of cell phones incident to arrest in order to make that power compliant with s. 8  of the Charter . Ultimately, the purpose of the exercise is to strike a balance that gives due weight to the important law enforcement objectives served by searches incidental to arrest and to the very significant privacy interests at stake in cell phone searches. Consequently, four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with s. 8 . First, the arrest must be lawful. Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes.  In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.  Third, the nature and the extent of the search must be tailored to its purpose.  In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.  Finally, the police must take detailed notes of what they have examined on the device and how they examined it.  The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration.  The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review.  It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

                    None of the three main modifications to the common law power to search cell phones incident to arrest previously suggested in the case law strike the balance required by s. 8 .  First the considerations that prompted the Court to take a categorical approach with respect to the non‑consensual seizure of bodily samples are entirely absent in this case.  Second, police will rarely have reasonable and probable grounds to search for safety purposes or to believe that evidence of the offence will be found on the phone at the time of arrest.  Third, allowing cell phone searches only in exigent circumstances would share the pitfalls of imposing a standard of reasonable and probable grounds, and would give almost no weight to the law enforcement objectives served by prompt searches.  Moreover, the search incident to arrest exception to the warrant requirement is not a subset of the exigency exception.

                    In this case, the initial search of the cell phone, which disclosed all of the cell phone evidence tendered by the Crown at trial, breached F’s s. 8  rights.  Although they were truly incidental to F’s arrest for robbery, were for valid law enforcement objectives, and were appropriately linked to the offence for which F had been lawfully arrested, detailed evidence about precisely what was searched, how and why, was lacking.

                    Despite that breach, the evidence should not be excluded.  The impact of the breach on F’s Charter ‑protected interests favours exclusion of the evidence, but it does so weakly.  Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F’s privacy was not particularly grave.  Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact.  However, other factors favour inclusion.  As to the seriousness of the Charter ‑infringing state conduct, the dominant view at the time of the search approved cell phone searches incident to arrest.  In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone.  While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused’s potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence.  Society’s interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth‑seeking function of the justice system.

                    Per LeBel, Abella and Karakatsanis JJ. (dissenting): Searches of personal digital devices — including personal computers — risk serious encroachments on privacy and are therefore not authorized under the common law power to search incident to arrest. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the intensely personal and uniquely pervasive privacy interests in our digital devices. Section 8  of the Charter  provides constitutional protection for privacy, which includes the right to be free of the threat of unreasonable intrusions on privacy and the right to determine when, how, and to what extent we release personal information.

                    Generally, the law enforcement interests will outweigh the privacy interest that an arrested person has in the physical items in his immediate vicinity. However, because the privacy interest in a digital device is quantitatively and qualitatively different from that in other physical items traditionally subject to such searches, the constitutional balance between privacy and the needs of law enforcement with respect to the search of cell phones and similar digital devices incident to arrest must be reassessed, using first principles.

                    A cell phone cannot be treated like any other piece of physical evidence that may be found on an arrestee and searched incident to arrest. Individuals have a high expectation of privacy in their digital devices because they store immense amounts of information, are fastidious record keepers, retain files and data even after users think they have been destroyed, make the temporal and territorial limitations on a search incident to arrest meaningless, and can continue to generate evidence even after they have been seized.

                    The law enforcement interests relate to the three purposes justifying searches incident to arrest:  safety, the preservation of evidence, and the discovery of evidence. Digital devices are not physically dangerous weapons and they cannot conceal such a weapon. The mere possibility that a phone could have been used to summon backup or that evidence on the cell phone could be remotely deleted should not justify a search incident to arrest.  Although the delay of obtaining a warrant may come at a cost to the prompt pursuit of the investigation, this cost must be weighed against the privacy interest in a personal digital device.

                    The most pressing state interests can be accommodated by the existing doctrine that permits warrantless searches under exigent circumstances. Exigent circumstances exist when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent destruction of evidence can be prevented by a warrantless search. Where exigent circumstances do not exist, a telewarrant can usually be obtained relatively quickly and with little harm to the investigation.

                    Thus, the weighty privacy interest that an arrested person has in a personal digital device will outweigh the state interest in performing a warrantless search incident to arrest, except in exigent circumstances.

                    Searches that treat a cell phone merely as a physical object continue to be permissible incident to arrest since it is the information that attracts a heightened expectation of privacy. As such, the police may usually seize a phone incident to arrest in order to preserve the evidence, but will require a warrant before they can search its contents.

                    In performing a search of a cell phone, whether under exigent circumstances or pursuant to a warrant, the police officers must not extend that search beyond the scope of the grounds permitting the search.

                    Tailoring the scope of the common law power to search incident to arrest does not adequately protect the reasonable expectations of privacy in personal digital devices. The majority’s proposed modifications generate problems of impracticality, police uncertainty, and increased after-the-fact litigation. And while detailed note-taking may be desirable, it may prove to be an impractical requirement, and it is not an adequate remedy to what would be an extraordinary search power. Fundamentally, the police are not in the best position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a digital device, and, if they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation.

                    Here, the searches of F’s phone were not justified and unreasonably infringed his privacy, in violation of s. 8  of theCharter . The facts of this case fall far below either standard for exigency.

                    The evidence which was unconstitutionally obtained should be excluded.  The state conduct was not particularly objectionable, given that the police acted in good faith, and the evidence is reliable; however, the high privacy interest individuals have in their electronic devices tips the balance in favour of exclusion. Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices.  This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal ― or indeed more pervasive ― than that found in an individual’s personal digital device or computer.  To admit evidence obtained in breach of this particularly strong privacy interest would tend to bring the administration of justice into disrepute.
51 minutes ago - Via Google+ - View -
https://plus.google.com/110712720781774983882 Kansas News : Mother seeks resentencing in deadly Prairie Village arson fire A former Johnson County physician who...
Mother seeks resentencing in deadly Prairie Village arson fire

A former Johnson County physician who killed two of her children in an arson fire wants a new sentencing hearing. The Kansas City Star reports that Debora Green argues that her life sentence with no chance of parole for 40 years is unconstitutional. Green, now 63, was found guilty of starting the 1995 fire that engulfed her Prairie Village home. A number of Kansas inmates are seeking to be resentenced after a 2013 U.S. Supreme Court ruling that found that the kind of sentence Green received must be considered by a jury. Green’s sentence was imposed solely by a judge. Since the ruling, the Kansas Supreme Court has reversed several murder sentences that were decided by judges, not juries. A hearing on Green’s motion is scheduled for Jan. 22. Source: http://www.kctv5.com/The post Mother seeks resentencing in deadly Prairie Village arson fire appeared first on Kansas News.
http://newsinkansas.com/mother-seeks-resentencing-in-deadly-prairie-village-arson-fire/
52 minutes ago - Via Google+ - View -
https://plus.google.com/114274071643147862645 Oklahoma Criminal Defense Lawyer Phillips & Associates : NEVER CONSENT TO A SEARCH You have a right to be free from search, and the cops either need a search...
NEVER CONSENT TO A SEARCH You have a right to be free from search, and the cops either need a search warrant or some other constitutional justification to support why they are searching you, your car or your home. You have the right to say NO. Then the cops have to convince a Judge that there is a good legal basis for the search, and you get to fight the seizure with a Motion to Suppress when you go to Court...if you consent, you only make it easier for the cops to convict you.

Howard W. Bailey, Esq.
Certified by the NJ Supreme Court as a Criminal Trial Attorney
Admitted as an Expert in Criminal Defense by the NJ Superior Court.
550 Broad Street, Suite 601
Newark, NJ 07102
973-982-1200

ANY COURT. ANY CRIME. ANY TIME.

#njcriminaldefenselawyer   #njcriminaldefenseattorney  
https://lh3.googleusercontent.com/-UinIEp9Dj20/VJX-bDjB4QI/AAAAAAAABnQ/Cvf0AH8Zu9M/w506-h750/S%2526S%2B1.jpg
53 minutes ago - Via Reshared Post - View -
https://plus.google.com/117156151769949424985 SicaGR : RT Washington Post: A quick, jargon-free explainer to the Supreme Court case that will decide the limits...
RT Washington Post: A quick, jargon-free explainer to the Supreme Court case that will decide the limits of free speech online
A quick, jargon-free explainer to the Supreme Court case that will decide the limits of free speech online
What speech is and isn't okay online? And more importantly, who gets to decide?
1 hour ago - Via - View -
https://plus.google.com/107380879424196485940 Dr. Peter A. Barone : ** Use of Force and Supreme Court Decisions It is critically important to understand the legality of...
**
Use of Force and Supreme Court Decisions It is critically important to understand the legality of the use of force to include deadly force and the 4th Amendment are critical to an officer doing their job, abiding by and acting in accordance with the 4th Ame...
Dr. Peter A. Barone with Barone Consulting and also affiliated with Hutton & Associates.
Use of Force and Supreme Court Decisions It is critically important to understand the legality of the use of force to include deadly force and the 4th Amendment are critical to an officer doing their job, abiding by and actin...
1 hour ago - Via Google+ - View -
https://plus.google.com/112485977894886901607 Global Change Awareness : The Supreme Court of Canada’s ruling that police can, without a warrant, search the cellphones of people...
The Supreme Court of Canada’s ruling that police can, without a warrant, search the cellphones of people they have just arrested is one of the most sinister in its history. Justice Minister Peter MacKay is thrilled with the ruling. You should not be. It’s…
Court ruling on cellphones ravages privacy: Mallick | Global Change Awareness
The Supreme Court of Canada’s ruling that police can, without a warrant, search the cellphones of people they have just arrested is one of the most siniste
1 hour ago - Via - View -
https://plus.google.com/109936907321316291240 Miami Herald : A South Florida man who two years ago won a U.S. Supreme Court case over the difference between a floating...
A South Florida man who two years ago won a U.S. Supreme Court case over the difference between a floating home and a vessel has lost a legal battle against the city of Riviera Beach.
South Florida floating home owner loses in court
A South Florida man who two years ago won a U.S. Supreme Court case over the difference between a floating home and a vessel has lost a legal battle against the city of Riviera Beach.
2 hours ago - Via - View -
https://plus.google.com/101318679730088826987 Free Law Project : Good news for legal data wranglers: CourtListener has now integrated the Supreme Court Database. http...
Good news for legal data wranglers: CourtListener has now integrated the Supreme Court Database. http://freelawproject.org/2014/12/21/courtlistener-is-now-integrated-with-the-supreme-court-database/
CourtListener is Now Integrated with the Supreme Court Database | Free Law Project
Earlier this week somebody on the Internet pinged us with some code and asked that we integrate the data from the Supreme Court Database (SCDB). Well, we're happy to share that less than a week later we've taken the code they provided and used it to upgrade CourtListener's database.
2 hours ago - Via - View -
https://plus.google.com/114448803900844155320 viktor kerney : http://southern4life.blogspot.com/2014/12/pam-bondi-denied-supreme-court-refuses.html
http://southern4life.blogspot.com/2014/12/pam-bondi-denied-supreme-court-refuses.html
Pam Bondi DENIED! Supreme Court refuses to Halt Same Sex Marriages in Florida
from Buzzfeed This is so good! When AG Pam Bondi heard that SCOTUS would look at her request to halt marriage equality in Florida, I bet she was patting herself on the back. Well, too bad it was all in vain. SCOTUS refused he...
3 hours ago - Via - View -
https://plus.google.com/104608060748958030043 AlterNet : Same-Sex Marriages to Begin in Florida after Supreme Court Rejects Delay The US supreme court on Friday...
Same-Sex Marriages to Begin in Florida after Supreme Court Rejects Delay

The US supreme court on Friday rejected attempts by Florida officials to postpone same-sex marriages in the state. Gay marriages are thus set to begin in  Florida on 6 January.

#LGBT #MarriageEquality  #FreedomToMarry #Florida  #NEWS
Same-Sex Marriages to Begin in Florida after Supreme Court Rejects Delay
They are set to begin in Florida on January 6.
3 hours ago - Via Google+ - View -
https://plus.google.com/117403632949354264405 Occupy The Polls : Colorado's Conservative Neighbors Ask Supreme Court to Strike Down Its Pot Law The states of Nebraska...
Colorado's Conservative Neighbors Ask Supreme Court to Strike Down Its Pot Law

The states of Nebraska and Oklahoma have asked the United States Supreme Court to issue a declaratory judgment finding that Colorado’s laws regulating the state-licensed production and sale of marijuana to adults violates the US Constitution.

#Conservatives #DrugWar  #FailedDrugWar #Cannabis  #Marijuana #PotLegalization  #Colorado  #Freedom
Colorado's Conservative Neighbors Ask Supreme Court to Strike Down Its Pot Law
Nebraska and Oklahoma don't like Colorado's legal marijuana system, and they want the US Supreme Court to get rid of it for them.
4 hours ago - Via Reshared Post - View -
https://plus.google.com/106467025279410147823 Bartlett Law Offices : Tennessee Supreme Court: Hospitals Cannot Maintain Liens After Bills Paid in Full- In a unanimous opinion...
Tennessee Supreme Court: Hospitals Cannot Maintain Liens After Bills Paid in Full-

In a unanimous opinion, the Tennessee Supreme Court has decided that hospitals are required to release their hospital lien against a patient as soon as the patient and the patient’s insurance company have paid the full amount of the hospital charges.

This lawsuit involves a common practice in the hospital industry. Hospitals charge uninsured patients more for the same services than they charge insured patients. This occurs because hospitals routinely contract with health insurance companies to discount their charges for the medical services they provide. In return for these discounts, insurance companies agree to pay their customers’ medical bills promptly.

The Regional Medical Center in Memphis (“the Med”) routinely categorizes its patients according to the type of injury and the circumstances surrounding the injury. It also calculates the charges for the medical services provided based on whether the patient is insured or not. If the patient is insured, the Med sends its discounted bill to the patient’s insurance company. The insurance company is contractually obligated to pay the patient’s bill, except for the deductibles and co-pays that are the patient’s responsibility. Hospitals also have a right by law to file a lien against the patient’s property to assure that they are paid for the services they provide.

When the Med decides that another person might be liable for a patient’s injuries, it routinely files a hospital lien against the patient for the full, non-discounted amount of its medical charges, even if the patient has insurance.

Even when the patient and the patient’s insurance company pay the entire amount of the Med’s bill, the Med customarily declines to release its lien against the insured patient’s property in hope that it will be able to recover additional money from the person or persons responsible for the patient’s injuries.

In this case, three patients who received treatment at the Med’s emergency room filed suit in the Circuit Court for Shelby County challenging the Med’s practice of filing liens against its patients and declining to release these liens after they had been paid. The trial court dismissed the lawsuit, but the Court of Appeals reversed.
 
The Tennessee Supreme Court granted the Med’s appeal. In a unanimous decision, the Court ruled that neither the laws authorizing hospital liens nor the Med’s contract with health insurance companies permitted the Med to maintain its lien after the patient’s debt to the Med has been fully extinguished with payments from the patient and the patient’s insurance company.
4 hours ago - Via Google+ - View -