The SCC rules on warrantless searches of cell phones: Police 1; Privacy 0

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The Supreme Court closed out 2014 with a ruling that has met not without some controversy. In R. v. Fearon, 2015 SCC 77, a bare majority held that the common law police power to search incident upon a lawful arrest survived the Charter‘s protection of the right of privacy, albeit with some limitations as imposed by Justice Cromwell (for the majority). Although the search in this case did not comply with the newly imposed qualifications and was therefore not compliant with the Charter, Justice Cromwell held that the evidence so obtained should not be excluded. The minority, led by Justice Karakatsanis, would have found the warrantless search to be unconstitutional and would have excluded the evidence so obtained. The qualifications to the police power to search incident upon an arrest are not easily and objectively assessed, and the principal criticism levied against them is that it will be difficult for the police to know if they are onside or offside of the constitutional mark.

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