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Digest of the Week | Reasonable Expectation of Privacy

B.C. Court finds reasonable expectation of privacy in social media messaging

R. v. Craig
2016 BCCA 154
British Columbia Court of Appeal

Criminal law --- Charter of Rights and Freedoms — Unreasonable search and seizure [s. 8] — Reasonable expectation of privacy

Accused was charged with sexual assault, sexual interference and Internet luring — Charges stemmed from encounters between accused and complainant, who were 22-year-old man and 13-year-old girl — Accused and complainant first contacted each other over Internet message service, then met in person — On second meeting, accused and complainant had sex in secluded area — Complainant wanted no further contact with accused after this — Complainant communicated over messaging service with another username that was later linked to accused — Accused was convicted of all charges — Accused claimed that his statement to police was not voluntary — Accused claimed that trial judge made several errors, including in restriction of cross-examination — Accused also claimed that that trial judge mishandled issues of privacy and searches, violating s.8 rights under Charter of Rights and Freedoms — Accused appealed from conviction — Appeal dismissed — Accused had some subjective expectation of privacy in communications — Accused had direct interest in messages sent from his account — Objective expectation of privacy was found not to exist by trial judge — This was incorrect though, as third-party message service created reasonable expectation of privacy — Messages were password-protected and were only gathered by police when they obtained warrant for message service — Messages were between two people and there was no expectation they would be shared to others — Messages did in fact expose personal details of accused — Although accused discussed illegal activity, this did not take away his protection under s.8 of Charter — Accused and complainant discussed keeping conversation private — There was breach of accused's s.8 rights in failure to follow proper search procedure — Police did not file fresh warrant and report — Justice of peace did not have seized information to make proper decision as to warrant.
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