WestlawNext Canada insight Blog

Digest of the Week — No Privacy Interest in Someone Else's Property

R. v. Pammett |  (WestlawNext Canada)
2014 CarswellOnt 2517 |  (Westlaw Canada)
Ontario Superior Court of Justice

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

Vehicle stop resulted in arrest of three individuals, including accused, and seizure of their cell phones — Search warrant and production order of cell phones revealed contact list containing names that accused used, plus series of text messages between accused and one of arrested individuals — Accused applied for standing to challenge constitutional validity of vehicle stop and subsequent search, based on reasonable expectation of privacy in text messages and other personal information located on cell phones — Application dismissed — Text messages do not generally carry with them reasonable expectation of privacy — There were no indicia of ownership or possession by accused of text messages in question — It was presumed that accused understood that in sending text message, he was surrendering content of message to another party who inherited unfettered ability and means to preserve, forward or disseminate it — There was no evidence of any subjective expectation of privacy — There was no restriction placed on forwarding or disseminating of messages, no instruction to delete messages, and no evidence that accused or cell phone owners ever turned their minds to question of privacy — Accused must have known that recipients’ devices could not provide any assurance of privacy — Accused had no right of ownership or control over vehicle or cell phones involved in vehicle stop — He was not in position to regulate use of vehicle or cell phones at time of search and there was no evidence that he had been in such position in past — Therefore, accused had no standing to challenge constitutionality of vehicle stop.

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