BC Court of Appeal Upholds a Reasonable Expectation of Privacy in a Text Message: R v PeluccoR. v. Pelucco, 2015 BCCA 370 (CanLII)
Relatively recent advances in technology and surveillance powers raise new questions about expectations of privacy that an individual may have in regards to that technology. For example, courts have held that individuals have a high expectation of privacy in their own homes, as the oft quoted line from Semayne's Case, 77 Eng Rep 194; 5 Co Rep 91 (1604) illustrates: “the house of every one is to him as his castle and fortress.”
Similar to the home, the information that can be obtained from a search of a computer is highly personal, as it can illustrate an individual’s private thoughts in the subjects they choose to search on the Internet, or in the projects or photos stored on the hard drive. Thus there is a high reasonable expectation of privacy in a computer.
Yet with the rise of communication by text message, courts have struggled to define the expectation of privacy in a text message or in the cell phone itself. The question for the courts is whether a text message is more like an email or a written form of a telephone conversation.
Furthermore, courts have questioned whether it makes a difference if the text message is intercepted, or if it is read after it has already been delivered to the recipient. While it seems like text messages and cell phones have been in existence for quite some time, it is only recently that the Supreme Court of Canada contemplated these issues in relation to the protections afforded by section 8 of the Charter, the right to be free from unreasonable search and seizure. For this reason, lower courts are also still grappling with these determinations as to the expectation of privacy that one has in a cell phone.
These were all live issues for the BC Court of Appeal in R v Pelucco, 2015 BCCA 370 [Pelucco]. The accused, Mr. Pelucco, had been sending text messages to Mr. Guray, discussing a cocaine transaction, when the police arrested Mr. Guray and seized his cellphone. Posing as Mr. Guray, the police sent Mr. Pelucco text messages and arranged to buy one kilogram of cocaine from him. Upon meeting Mr. Pelucco, the police arrested him and drugs were found in a search of his vehicle. Based on the probative strength of the text messages that the police had read, they were able to obtain a search warrant to search Mr. Pelucco’s home. More drugs were found and Mr. Pelucco was charged with three drug offences.
At trial Mr. Pelucco argued that Mr. Guray had been unlawfully arrested, yet the search of the text messages on Mr. Guray’s cellphone violated his own right to be secure against unreasonable search and seizure. Although Mr. Pelucco was aware that he could not claim a breach of another person’s Charter rights to attempt to exclude the evidence, he argued that the police had violated his right to be secure against unreasonable search and seizure when they read the text messages sent to Mr. Guray.
Mr. Pelucco was successful at trial in his application to have the evidence excluded and was acquitted on all counts. The trial judge ruled that there had been “no lawful basis for Mr. Pelucco’s arrest” (Pelucco, para 2).
The Crown appealed this ruling to the BC Court of Appeal, arguing that the trial judge had erred in finding that Mr. Pelucco’s section 8 Charter rights had been engaged in the search of Mr. Guray’s cellphone. The Crown further argued that a new trial was necessary, in which the evidence of the text messages should be included.
A majority of the BC Court of Appeal dismissed the Crown’s appeal and held that Mr. Pelucco had a reasonable expectation of privacy in a text message that he had sent to another person. A majority of the Court of Appeal concluded that text messages fall under ‘private communication’ under section 183 of the Criminal Code and the police must have authorization to intercept them.
Furthermore, the majority found that the trial judge did not err in law in finding that the accused’s section 8 Charter rights were violated. Thus it was open to the trial judge to exclude the evidence under section 24(2) of the Charter. The majority agreed with the trial judge’s finding that Mr. Pelucco had a subjective expectation of privacy in the text messages he had sent to Mr. Guray, however they differed as to whether that expectation was objectively reasonable.
In reaching this decision, the majority noted that it is clear that there is a reasonable expectation of privacy in a text message before it has been delivered to a recipient, and its interception must be authorized under Part VI of the Criminal Code, as per R v TELUS Communications Co., 2013 SCC 16. Yet the Court of Appeal also noted that once a text is delivered to the recipient, Part IV of the Criminal Code no longer applies to the text, as per R v Belcourt, 2015 BCCA 126 [Belcourt].
However, the majority also distinguished the case before them from that of Belcourt. The BCCA noted that there had not been an unlawful search in Belcourt, so section 8 had not been triggered as it had been in the case of Mr. Pelucco. In effect, whether Mr. Pelucco had retained control of the text message or not once it was sent was not determinative of the issue, as it is necessary to look at “the totality of the circumstances” to make this determination per R v Edwards,  1 SCR 128 [Edwards]. As such, the majority found no error in the trial judge’s effort to determine whether Mr. Pelucco had a subjective expectation of privacy that was objectively reasonable in ruling the text messages inadmissible (Pelucco, para 50).
Justice Goepel dissented in the judgment, recommending that the Crown’s appeal be allowed, the appeal set aside, and a new trial ordered.
Justice Goepel agreed that for an accused to demonstrate that their section 8 rights have been infringed, they must first establish that they had a reasonable expectation of privacy in the “totality of the circumstances” (Edwards, para 6). Thus an individual cannot claim their own section 8 rights have been violated by a search of another’s home. From this principle Justice Goepel questioned whether Mr. Pelucco could assert a privacy right over his communication to Mr. Guray and the text messages stored in Mr. Guray’s phone.
Justice Goepel noted how Mr. Pelucco had cited R v SM, 2012 ONSC 2949 [SM] to argue that text messages are more akin to a telephone conversation rather than an email, which could be compared to a letter:
…Text messages are not like email messages where an immediate response is not an expectation inherent in the mode of communication used – although a quick response may nonetheless be wanted. Text messages occur very much more in “real time”. Indeed, text messages are often a substitute for an actual conversation and thus are much more akin to a traditional telephone conversation than they are to other modes of communication. Emails, on the other hand, are more akin to an electronic version of a letter (SM, para 18).
This observation that text messages are more like a conversation lead the judge in SM to conclude that an individual has a right to challenge the method in which the texts were seized despite not being a “named party in the authorization” (Pelucco, para 26).
Justice Goepel however disagreed that a text message should be compared to a telephone conversation and took the position that an individual’s privacy interest in a given text message ends upon sending the message. He contrasted the Court’s reasoning from both R v Fearon, 2014 SCC 77 [Fearon] and R v Vu, 2013 SCC 60 [Vu] as to the expectation of privacy in certain forms of technology. Although a majority of the Court in Fearon thought it “unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest” (Fearon, para 51), they also noted that smart phones are “the functional equivalent of computers” and thus a search of one “may” constitute a significant intrusion on privacy. However, the majority of the Court in Fearon avoided making a general pronouncement on whether police searches of cell phones would constitute an invasion of privacy in all situations.
In slight contrast, the Court in Vu included cell phones under the umbrella of “computers” in explaining how computers are different from other searchable locations, elevating them to the status of homes in terms of the expectation of privacy from the intrusions of the state. Citing R v Morelli, 2010 SCC 8 the Court in Vu noted that “it is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer” (Vu, para 40):
First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the “biographical core of personal information” referred to by this Court in R v Plant,  3 S.C.R. 281, at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic (para 41).
Another factor that also influenced Justice Goepel was what he viewed as the ‘voluntariness’ of text messages in contrast to what he saw as a more ‘inadvertent’ informational trace left behind by computer users (Pelucco, para 133). As such, this perceived difference influenced his decision that there should be less of a reasonable expectation of privacy in a cell phone than in a computer.
Given the majority’s conclusion, the principle that appears to be emerging now is that individuals can reasonably expect that police will not search their text messages without prior authorization. All levels of courts continue to struggle with a determination of this issue, but it is encouraging that a majority of the BC Court of Appeal took a stand in favour of privacy rights in a context of increasing state surveillance. It is not clear if this decision can be reconciled with the recent 4-3 majority decision in Fearon, where the Court ruled that the common law power of search incident to arrest justified the admissibility of the evidence found in the search of Mr. Fearon’s cell phone.
However, the present case must also be hailed for the appropriately generous interpretation it gives to the section 8 right to be free from unreasonable search and seizure. Surely this particular interpretation is much more in keeping with the spirit of section 8 first articulated under Hunter v Southam, Inc.,  2 SCR 145] in which a unanimous Court ruled that warrantless searches are presumed unreasonable and that searches must have prior authorization from a person who is capable of acting judicially.