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Does an Accused have Privacy Rights in Text Messages

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Liam K. Thompson

Neuberger & Partners LLP

 

Do you retain a constitutional right to privacy in your text messages, even after you have sent them to another person? In recent years, Canadian courts have offered some guidance on this issue. To repeat the oft heard lawyer’s refrain: it depends.

The right to be free from unreasonable search and seizure is one of the hallmarks of a democratic society. In Canada, this right is contained within s. 8 of the Charter. Having been created in the 70s and 80s, the Charter’s drafters could not have foreseen a world where one could carry multiple highly personal conversations in their pockets. In 2017, the Supreme Court of Canada was called to opine on the issue of privacy rights as they relate to text messages in R v Marakah. Two arms dealers had their phones seized. Marakah was successful in challenging the warrant for his home, and the text messages found on his phone were excluded from evidence against him. However, the trial judge held that Marakah had no standing to challenge the admission of the text messages found on his accomplice’s phone.  At the Supreme Court, a majority held that, depending on the totality of the circumstances, a person may retain a reasonable expectation of privacy in their text messages, even after they have been sent to another person. The majority clarified that courts must ask what the police were ‘really after’ in terms of defining the subject matter of a given search.[1] In the context of text messages, what the police are really searching for is the electronic conversation between the parties.[2]  While a person obviously gives up a degree of control of their text messages and the information contained therein when they are sent to another person—the acceptance of such a risk does not equate to relinquishing one’s s. 8 rights.[3] Therefore, an accused may succeed in challenging the admission of text messages unreasonably seized from someone else’s phone, depending on the circumstances.

The devil is in the details, and with respect to privacy rights in text messages, the details that matter are the parties and whether any of them consented to a police search of the messages. Two years after Marakah in R. v Mills, the Supreme Court was called upon to deal with another fact scenario: Mills was charged with child luring. He had been communicating with Leann, who portrayed herself as a 14-year-old girl, but who was actually a police officer. Mills attempted to challenge the admission of the incriminating messages that he had sent to “Leann”. The Supreme Court held that this challenge must fail: Mills could not have an objectively reasonable expectation of privacy in his electronic conversation with Leann. Privacy is assessed on a normative rather than a purely descriptive standard, and Justice Brown, for the majority, held that “adults cannot reasonable expect privacy online with children that they do not know.”[4] Also important to Justice Brown was the fact that in the circumstances of this case, namely a police sting operation, the police knew from the outset—before any breach of privacy occurred—that the interlocutor with their fictious child was a stranger to her, as she did not exist.[5]

In certain circumstances, warrantless searches of another person’s phone can constitute s. 8 breaches even when that other person consents to a search. In R v CM,[6] the accused was charged with luring his former stepdaughter. Both the stepdaughter and her mother had consented to the search of the phone, but Justice Konyer ultimately held that the accused’s expectation of privacy in this case was objectively reasonable. The case was distinguished from Mills on the basis that the parties to the conversation were well known to each other (as opposed to the stranger-child in Mills) and that the police knew this fact before they searched the phone.[7] The mother and step-daughter’s consent in CM was not a valid waiver of the accused’s rights against seizure. While the accused’s interlocutor inarguably had the right to disclose the contents of the conversations to the police, this does not excuse the police from seeking judicial authorization to search the text messages between the parties, in which the accused held a reasonable expectation of privacy.[8] However, would be s. 8 claimants beware: the ultimate finding that the stepdaughter’s consent was not valid may be dependent on the fact that there was a pre-existing relationship between the parties. In a recent Superior Court decision, the normative assessment of a reasonable expectation of privacy cut against the accused. In R v Amdurski, the accused was charged with multiple serious offences relating to the human trafficking of a 13-year-old girl. Justice Molloy held that the accused’s expectation of privacy was not objectively reasonable, relying on Justice Brown’s formulation of the inquiry on a normative basis: Mr. Amdurski’s relationship to the victim was similar to the relationship in Mills, in that there was an adult communicating with a child who was a stranger to him.[9]  Justice Molloy also found that in the circumstances before her, where the child and her mother had freely handed over the text messages to the police, the accused had no standing to assert his s. 8 rights in the text messages.[10] In considering his decision in CM, Justice Konyer distinguished Amdurski on just this basis: Amdurski was effectively a stranger to his minor interlocutor, while the accused in CM  had a long standing relationship with his former stepdaughter. Justice Konyer thus distinguished CM from Amdurski on the basis that the normative question of whether there ought to have been a reasonable expectation was decided in the negative.

In sum: a person may, in some circumstances, retain a reasonable expectation of privacy in their text messages, even if the police obtain them by seizing another person’s phone. Whether a privacy interest remains will turn on the nature of the relationship between the parties to the conversation, and whether that person consented to the seizure of those messages.

[1] R v Marakah, 2017 SCC 59 at para 15.

[2] Ibid at para 17.

[3] Ibid at paras 40-41.

[4] R v Mills, 2019 SCC 22 at para 23.

[5] Ibid at para 24.

[6] 2022 ONCJ 372.

[7] Ibid at paras 36-37.

[8] Ibid at pars 46-47. Justice Konyer relied on the Supreme Court’s decision in R v Reeves 2018 SCC 56, which concerned the accused’s wife consenting to the police seizing the computer that the wife and the accused shared.

[9] R v Amdurski #4, 2022 ONSC 1338 at paras 76, 79.

[10] Ibid at para 35. Justice Molloy in Amdurski went about her reasoning in a different order than Justice Konyer in CM, in that she first considered the issue of the owner of the phone consenting to the phone’s seizure, only considering the issue of the accused’s expectation of privacy in the messages in the alternative.

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