Text Messages and Privacy InterestsR. v. Pelucco, 2015 BCCA 370 (CanLII)
After arresting a third party, police discovered on his mobile phone text messages between him and the accused. The messages indicated a potential drug transaction and police, posing as the third party, carried on the conversation with the accused to set up a meeting. Police attended the meeting and based on information from the earlier text message conversation arrested the accused and searched his vehicle, which turned up a kilogram of cocaine in the trunk. A warrant was obtained to search the accused’s home.
After two voir dires determined that the majority of the evidence was inadmissible due to violations of the accused’s Charter rights, the accused was acquitted at trial on all three counts. The Crown appealed.
At issue was whether or not the accused had a reasonable expectation of privacy with respect to his sent text messages discoverable on the third party’s mobile phone.
a. Reasonable Expectation of Privacy
The Crown’s position on appeal was that the accused maintained no reasonable expectation of privacy with respect to the recipient’s record of communication (at para. 31). The defence, on the other hand, argued that text messages constituted private communication and that the accused maintained an ongoing privacy interest in that communication (at para. 31).
Writing for the majority, Groberman J. first notes that s. 183 of the Code is not of use, as the current situation does not involve intercepted communication, as the text messages were delivered to the recipient (at para. 33). Groberman J. goes on to review the role control plays in determining a reasonable expectation of privacy.
Based on his review of the law, beginning with R. v. Edwards,  1 S.C.R. 128, Groberman J. states that there are various factors involved in determining whether or not there is a reasonable expectation of privacy in the “totality of the circumstances” (at para. 35). The decisions in R. v. Cole, 2012 SCC 53 and R. v. Spencer, 2014 SCC 43 are relied on to support a finding that, while control over the subject matter of a search is relevant to a s. 8 analysis, it is not determinative of the issue (at paras. 42 and 52).*
The majority states at para. 50 that the two most important factors involved are the subjective expectation of privacy and the objective reasonableness of that expectation. Groberman J. agrees with the trial judge’s finding that the accused held a subjective expectation of privacy, notwithstanding not having called evidence to that effect (at para. 53).
With respect to the objective reasonableness of the accused’s expectation, the appellate court departs from the trial judge’s reasoning but reaches the same conclusion that the accused’s expectation was objectively reasonable (at paras. 51-71). The majority finds that the trial judge erred in considering whether or not the text message conversation would remain private on a balance of probabilities, when the proper approach is a normative assessment rather than a descriptive one (at para. 58).
b. Unreasonable Search
On appeal, the Crown conceded that the arrest and subsequent search of the third party’s phone/text messages were unlawful (at para. 29).
Based on the foregoing analysis, the majority upholds the trial judge’s finding that the accused’s s. 8 Charter right was violated when the police reviewed his text message conversation with the third party on the latter’s mobile phone (at para. 72). Unable to rely on the text messages, the police were unable to establish reasonable and probable grounds for having arrested the accused. The accused’s arrest was, therefore, unlawful, as well as any search incident to arrest. Evidence flowing from the breach of the accused’s Charter rights was deemed inadmissible and tainted for the purposes of the ITO, and when excised from it, left the ITO unable to support the warrant that allowed for a search of the accused’s home.
*It is on this point that Goepel J. departs from the majority decision. In his minority opinion, Goepel J.’s analysis of Edwards leads him to conclude that the ability to control or regulate the dissemination of the content of communication voluntarily sent to another is determinative of the issue at hand (at para. 88). Distinguishing cases where a contractual agreement governs the recipient, as in R. v. Tessling, 2013 SCC 16 (at para. 99), or where there is some other guarantee or indication of confidentiality, Goepel J. concludes that it is wholly unreasonable to have an expectation of privacy when one voluntarily sends a text message to another person, especially a stranger (at para. 118). This leads Goepel J. to conclude that the accused had no objectively reasonable expectation of privacy in the circumstances (at para. 134).
Amidst a rapidly changing technological landscape, the majority’s decision signifies the importance of the subjective expectation of privacy as opposed to reliance solely on the medium used to communicate. In this regard, the majority’s recognition – that conversation via text messaging is similar in nature to telephonic conversation (at para. 64) – is agreeable and in line with progressive amendments to the Code, which incorporate “telecommunication” into “communication” for the purposes of the offences enlisted therein.