No privacy interest in text messages sent from cellphone belonging to third party
Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton
The defence brought an application to exclude the contents of various text messages, allegedly sent by the accused from several different cellphone numbers, to a number of different recipients. Members of the RCMP obtained production of the accused’s text messages pursuant to s. 487.012 (now s. 487.014) of the Criminal Code. The production order was issued to Telus Communications. There was evidence on the application that at least two of the cellphones in question were not registered to the accused.
The defence sought to exclude the content of the text messages, arguing that the use of a production order to obtain the text messages constituted a breach of the accused’s rights under s. 8 of the Charter on the basis that the accused had a high privacy interest in the text messages, and as such, the police ought to have obtained a Part VI authorization to intercept his private electronic telecommunications. Given that at least two of the cellphones alleged to have been used by the accused were not registered to the accused, and given that the accused denied having sent the text messages, and otherwise presented no evidence on the voir dire to establish that he had even a personal expectation of privacy in the text messages, the Crown challenged the accused’s standing to bring the Charter application.
It is well established that an accused person can only apply to exclude evidence based on his or her own personal privacy interests, and not the privacy interests of third parties: R. v. Edwards
,  1 S.C.R. 128, 1996 CarswellOnt 1916.
In the court’s view, a text message was more akin to a letter, than an ongoing electronic conversation. When a person sends a letter, they are reducing or abandoning their privacy interests by sending that communication to another person. While there may be a privacy interest in the copy of the “sent” text message archived on the sender’s cellphone, the sender’s potential privacy interest in the copy of the text message “received” on a third party’s phone is much less obvious. A recipient might forward or share the “received” copy with one or more persons. In R. v. Pelucco
, 2015 BCCA 370, 2015 CarswellBC 2386, the majority of the British Columbia Court of Appeal found that, while there may be a presumption that the sender of a text message has a reasonable expectation of privacy in the message, whether or not that expectation of privacy is reasonable in any particular case will be dependent on the context of the communications and the parties involved, as established in evidence. Here, at least one of the phones was purchased by another individual, not the accused. This subverts the normal arrangements of two private persons communicating with their own private devices. Moreover, the accused denied sending any of the text messages in issue and otherwise presented no evidence on the Charter voir dire to establish that he had any expectation of privacy in the text message evidence. Accordingly, the Pelucco presumption for a privacy interest in the sent messages did not apply. In the absence of any evidence from the accused to establish a privacy interest in the text messages, the court found that the accused lacked standing to challenge the admission of the evidence.
R. v. Vader
, 2016 ABQB 309, 2016 CarswellAlta 1076 (Alta. Q.B.)