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Police Powers | Expectation of privacy

Warrantless search of cell phone text messages may violate message sender’s reasonable expectation of privacy

Police Powers Newsletter

By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

10. Warrantless Interception of Text Messages (and Continued Conversation) Results in Exclusion of Evidence

Facts: Police observed a vehicle driving erratically and exceeding the speed limit northbound on the Trans-Canada highway between Ladysmith and Nanaimo B.C. The driver, Mr. Guray, appeared nervous and avoided eye contact. He told police he was on his way to a restaurant in Nanaimo where he was going to meet someone about purchasing a car. Mr. Guray explained that he was currently driving a rental because he found it easier to drive in the snow. Police grew suspicious. Although the driver had no criminal convictions, police records suggested he had gang associations and was involved in drug activity and assaults; the restaurant he purported to be driving to was closed that day; he could not (or would not) provide the name of the person he was meeting, and; his explanation for driving a rental vehicle was curious as there was no snow on the ground. Over his objections, police searched the trunk of the vehicle, discovering a backpack containing $38,000 in cash. Detecting the odor of cocaine (but no cocaine), officers arrested the driver and continued to search the vehicle.

One officer located a cell phone between the front seats. He pressed the center button and it displayed a series of text messages that appeared to relate to the purchase of one kilogram of cocaine. Believing that the driver was communicating with a cocaine supplier, police continued the text conversation impersonating Guray and arranged to meet this other person in Nanaimo.

Arriving at the designated place, police arrested the Respondent who was sitting in a parked car, holding a cell phone. His vehicle was searched and one kilogram of cocaine was found in the trunk. A search of his cell phone revealed the conversation with police.

On the strength of the text messages seized from Guray’s phone which suggested that the Respondent possessed another kilo of cocaine, and with the findings from the search of the car pursuant to the arrest, the police obtained a warrant to search his residence, a basement apartment in his parents’ home. On execution, police told the Respondent’s parents to leave, and seized some evidence from the basement. The most important evidence — a bag containing 280 grams of heroin, a money counter and $57,550 in cash — were found on the main floor.

At trial, the Respondent argued that the sender of a text message has a reasonable expectation of privacy in the recipient’s copy of the message on the recipient’s phone, on the basis that the recipient of a text message is reasonably expected to keep the message private. In taking this position, the Respondent argued that police then violated his s. 8 rights under the Charter when they read his messages on the driver’s cell phone. The Crown argued that the only possible person who had a claim under the Charter was the recipient. The trial judge found that the Respondent did have a subjective expectation of privacy, and that his expectation was objectively reasonable. Therefore, the judge found that the warrantless search of the driver’s cell phone was not authorized by law. Further, the trial judge found that once the illegally obtained evidence was excluded from the information to obtain the search warrant for the Respondent’s residence, it could not have issued, and concluded that all the evidence ought to be excluded under s. 24(2). The Crown appealed.

Held: Appeal dismissed.

The majority of the Court of Appeal held that the recipient of a text message — not the sender — controls the degree to which a delivered message is kept private. However, whether a reasonable expectation of privacy exists for the purposes of s. 8 is to be assessed on the totality of circumstances; control of the thing in which the privacy interest is claimed is only one factor to consider among many.

The trial judge examined the case law regarding the existence of a reasonable expectation of privacy under R. v. Edwards, [1996] 1 S.C.R. 128, R. v. Rahey, [1987] 1 S.C.R. 588, R. v. Tessling, 2004 SCC 67 and R. v. Patrick, 2009 SCC 17. The majority focused the analysis on whether the Respondent had a subjective expectation of privacy in the text messages and whether that expectation was objectively reasonable. The Court acknowledged that while it was true that once a text message was sent, it ceased to be under the exclusive control of the sender who cannot have absolute confidence that the message will remain private, much will depend on the nature of the message, the relationship between the sender and the recipient, the character of the recipient and the circumstances in which the message is received. However, a person’s right to privacy does not depend on there being no reasonable possibility of an intrusion on that right. In the circumstances of this case, the majority held that the Respondent had a reasonable expectation the messages would remain private on the recipient’s cell phone. He was therefore entitled to expect that police would not search the cell phone without authorization.

The minority took a different view and held that the Respondent did not have a reasonable expectation of privacy in the messages lifted from the recipient Guray’s phone pursuant to his arrest. Once the Respondent sent the messages, he lost all control over what the recipient Guray would do with them, including sharing them with third parties including the police. There was no evidence of any agreement between the Respondent and Guray which would have made the former’s subjective expectation of privacy in his messages objectively reasonable. The minority refused to follow R. v. M. (S.), 2012 ONSC 2949 where a judge of the Superior Court of Justice held, in obiter dicta, that a sender has a reasonable expectation of privacy in a recipient’s messages. The minority preferred the reasoning of the courts in R. v. Thompson, 2013 ONSC 4624 and R. v. Pammett, 2014 ONSC 1213, where different judges of the same court distinguished M. (S.) and held that a sender of a text does not, absent special circumstances, have a reasonable expectation of privacy in text messages stored on the recipient’s phone.

Commentary: This case represents the first provincial Court of Appeal decision regarding whether the sender of a text message has a reasonable expectation of privacy in messages on a recipient’s telephone. Both the majority and the dissent arrive at opposite conclusions based on the application of the factors as set out in R. v. Cole, 2012 SCC 53 and R. v. Edwards, [1996] 1 S.C.R. 128. The minority opinion seems more consistent with the case law regarding expectations of privacy where it has been found that when a person knowingly transmits to another person a post card, letter, email, missive, package or other document, the sender (absent specifically articulated contractual or special arrangements that provide special privacy arrangements in respect of the information or thing sent) generally loses control over what the recipient may choose to do with the information, thereby defeating an objectively reasonable expectation of privacy by the sender in the information in the recipient’s hands. It is essentially another form of abandonment of privacy such as was considered in Patrick. The case is presently the subject of an appeal to the Supreme Court of Canada.

R. v. Pelucco (2015), 2015 CarswellBC 2386, 2015 BCCA 370 (B.C. C.A.)

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