Does the Sender of a Text Message Have an Expectation of Privacy? An Alberta Court says No.

Does the Sender of a Text Message Have an Expectation of Privacy? An Alberta Court says No.

One of the fastest evolving and most important areas of Canadian criminal law is electronic privacy. In virtually all types of criminal cases, the police routinely gather evidence by seizing and searching personal electronic devices such as cell phones, tablets and computers. 

The communications that occur both before and after an alleged offence can be critical pieces of evidence in a trial. In many cases, pre-trial Charter motions will focus on trying to have such messages excluded from evidence.

Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has a right to be secure against unreasonable search or seizure. In order to establish the seizure of a communication was unreasonable, an accused person must demonstrate that they had a reasonable expectation of privacy in the communication that was seized.

In recent years, the Courts have considered the question of whether or not the sender of a text message (or other electronic communication) maintains an expectation of privacy in the message once it has been sent. The lower Courts across the country are divided on the issue and neither the Supreme Court of Canada nor the Alberta Court of Appeal has provided any binding authority.

In Alberta, a recent case on this issue is R v Beairsto1. There, an individual named Ahmed was arrested for possession for the purpose of cocaine. The police searched his vehicle and found a Blackberry cell phone in the driver’s side door. The Blackberry was not password protected and the police viewed a number of chat messages on the phone’s Blackberry Messenger program. The officers believed these messages to be “indicative” of drug trafficking.

During the search of the phone, one of the police officers was added as a party to the chat conversation. He received a message from an unknown third party (the accused, Mr. Beairsto) asking who he was. The officer said he was a “friend” of Ahmed’s and another officer used Ahmed’s cell phone to send a message “vouching” for him. The police then used the phones to arrange for Mr. Beairsto to participate in trafficking cocaine with undercover officers. Mr. Beairsto was ultimately arrested and charged.

At trial, Mr. Beairsto did not challenge the legality of the initial search of Ahmed’s phone, but argued that when the officers used trickery to engage him in text messaging, it constituted an interception of his private communications and the police should have obtained a wiretap authorization. The Court dismissed Mr. Beairsto’s arguments and held that Mr. Beairsto did not have a reasonable expectation of privacy in his messages and neither a wiretap authorization nor a general warrant was required.

The findings in R v Beairsto add to the uncertainty emerging in this area of law. In R v Pelucco2, a majority of the British Colombia Court of Appeal held that when someone sends a text message, they ordinarily (and reasonably) expect it to remain private. Similarly, in R v Craig3, the British Colombia Court of Appeal held that Internet chat records sent through a third party provider (in that case, Nexopia) attracted a reasonable expectation of privacy and were therefore protected by section 8 of the Charter. In contrast, the Ontario Court of Appeal recently released two cases in which the accused were found to have no reasonable expectation of privacy in their sent text messages and as such, had no standing to bring section 8 challenges to the seizures of those messages.

Given the prevalence of text messaging and other electronic communication, this is an issue to watch for all criminal law practitioners and an area that will almost certainly require clarification from the Supreme Court of Canada.

  1. R v Beairsto, 2016 ABQB 216
  2. R v Pelucco, 2015 BCCA 370.
  3. R v Craig, 2016 BCCA 154.

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