Supreme Court of Canada Details Phone Search Protections

The Supreme Court of Canada has permitted searches of cell phones by police incidental to arrest.

But, what does this have to do with real estate?

In R. v. Fearon, 2014 SCC 77 the Court justified the search as part of an important law enforcement objective.

“[82]                          Finally, officers must make detailed notes of what they have examined on the cell phone. The Court encouraged this sort of note keeping in Vu in the context of a warranted search: para. 70. It also encouraged that notes be kept in the context of strip searches: Golden, at para. 101. In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective. In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.”

To utilize evidence and collect it properly about a real estate property or transaction, an agent should:

  1. Keep a careful record,
  2. Note the applications searched,
  3. The extent of the search,
  4. The time of the search,
  5. Purpose of the search,
  6. The duration of the search.

Going forward, what types of notes should a real estate agent have about a property? Read through the above list one more time, but this time, substitute “sources” for applications and “investigations” for searches:

  • Keep a careful record,
  • Note the sources searched,
  • The extent of the investigation,
  • The time of the investigation,
  • Purpose of the investigation,
  • The duration of the investigation.

These are the factors that Courts will weigh in terms of deciding the value of any evidence that a real estate agent must have and maintain going forward. Why investigate, if the evidence will not be worthwhile?

Agents frequently take pictures and make notes while viewing properties. Offering evidence later, they will be called to task and will have to adhere to strict evidentiary requirements.

Brian Madigan LL.B., Broker

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