A Policing Perspective (A Student Blog): Random Musings on a trio of Supreme Court Decisions

In hindsight, 2014 seemed to be a very interesting year in regards to Supreme Court judgements. There were at least three cases that I was highly anticipating before they were even released and in all three cases, I read the judgement from the Supreme Court the very day it was released.

R v Fearon 1

The most anticipated case for me personally over the past few years was undoubtedly R v Fearon. The decision, which deals with the search of cellular phones incident to arrest, was released by the Supreme Court on December 11th, 2014. At the time, I was a plainclothes investigator working in a section that focused primarily on drug investigations as well as other serious offences. Like everyone in society these days, drug dealers also use cellular phones and as a drug investigator, I searched many phones incident to arrest.

I had previously read the Ontario Court of Appeal decision in Fearon 2 as well as R v Giles,3 a BC Supreme Court Case which was the leading case in Western Canada regarding cell phone searches. I had also read the Supreme Court of Canada’s decision in R v Vu 4 one year earlier, which established a higher expectation of privacy in computers.

I was generally content overall with the result in Fearon. While it imposed more restrictions than a regular search incident to arrest, it still provided police the leeway to conduct an immediate cursory search incident to arrest in some circumstances prior to obtaining judicial authorization for a full search.5

I was very glad I had read Fearon the day the decision was released. As it turned out, the very next day I was involved in a homicide investigation in which I assisted in the arrest of a suspect for murder. Following the requirements in Fearon, I was able carry out a search of the suspect’s seized cell phone in compliance with the new common law. As such, I was probably one of the first police officers in Canada to conduct a search of a cell phone following the courts requirements set out in this case.

R v Taylor 6

This was another Supreme Court decision from 2014 that was highly anticipated for me personally. Part of that had to do with the fact that counsel for the accused was Patrick Fagan, a former police officer turned defence counsel who currently practices in Calgary. Because of our shared backgrounds, I carry a certain appreciation for Mr. Fagan. The other part had to do with the subject matter and the question of whether individuals in custody should be able to use a police officers personal cellular phone to facilitate the right to counsel.

I was originally drawn to this case when it was still at the Alberta Court of Appeal level. There, the majority held that there is a duty on police officers to provide individuals with the right to use a police officers personal cellular phone to facilitate the right to counsel.7

While the Supreme Court ultimately did find that there was a breach of Mr. Taylor’s section 10(b) right to counsel, they also said that there is no duty on police to provide their personal cellular phones to detained individuals.

R v Hart 8

I have often been asked as a police officer what I think of Mr. Big investigations. I am not an undercover trained officer nor have I been involved in any Mr. Big investigations before. In fact, I learned more about Mr. Big investigations from reading the excellent Mike McIntyre book “To the Grave” than anything I have learned about them while policing so most of my opinions will be formed from that.

My response regarding my thoughts on Mr. Big stings is usually the same, and that is that I find them a great investigative tool, particularly when they can be used to corroborate other evidence or lead to the discovery of evidence.

Some people are highly critical of these types of investigations. However, I simply need to look at two Manitoba cases, those being the murders of Erin Chorney 9 (the subject of McIntyre’s book) and Derek Kembel,10 to support me in my opinion. In both of those cases, I personally believe that neither would have been solved without this investigative technique nor would anyone have had any idea what happened to the body or the remains of the body of the victims.

Thankfully by employing this investigative tool, families of these victims were hopefully given some semblance of closure instead of forever wondering what happened to their loved ones.

I should note however that this opinion is not based on any actual police experience or personal knowledge of these files nor any discussions with anyone involved with these files. It is based strictly on what I have read in the news. Having said all of that, I do believe that the Hart decision was an important, if not tragic, case that helped give police added direction regarding these types of investigations.

Endnotes

1 R v Fearon, 2014 SCC 77 [Fearon].

2 R v Fearon, 2013 ONCA 106.

3 R v Giles, 2007 BCSC 1147.

4 R v Vu, 2013 SCC 60.

5 Fearon at para 83.

6 R v Taylor, 2014 SCC 50.

7 R v Taylor, 2013 ABCA 342 at para 11, 13.

8 R v Hart, 2014 SCC 52.

9 http://www.cbc.ca/news/canada/sting-operation-helps-convict-manitoba-man-of-murder-1.548548

10 http://www.winnipegsun.com/2014/05/29/mr-big-goes-to-the-big-house