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Charter - s.8 Search and Seizure - Reasonable Expectation of Privacy - Exception for Illegal Acts. R. v. Knelsen
In R. v. Knelsen (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal which sought to exclude text messages from evidence, here where the appeal court found no Charter s.8 'privacy interest'.
Here the court notes an alternative approach to finding a Charter s.8 privacy breach, here where "there is no reasonable expectation of privacy in text messages where the messages themselves constitute a crime against the recipient":An Alternative Approach
[61] The Crown’s alternative argument proposes a second and narrower approach, which I will address briefly in the event I am wrong in my conclusion that the “totality of the circumstances” does not support the appellant’s reasonable expectation of privacy in the text messages.
[62] The Crown submits that this court should adopt in the alternative the interpretation of Mills that was offered by Trotter J.A. in Campbell, a 2022 decision of this court. In that case, while they were arresting a known drug dealer, G, the police seized two cell phones, one of which lit up with text messages that the police believed revealed a drug transaction in progress. The police impersonated G with the aim of having drugs delivered to his residence. When Mr. Campbell arrived at the residence with drugs, he was arrested for various offences. He was ultimately convicted. On appeal, this court concluded that the trial judge erred in failing to find a reasonable expectation of privacy in Mr. Campbell’s text messages with G, but ultimately upheld the decision to admit the evidence on the basis of the exigent circumstances doctrine.[7]
[63] Similar to Mills, Campbell was a case in which the police had employed an investigative technique where they had accessed an offender’s electronic messages without prior authorization and impersonated the person with whom the offender was communicating. In the course of his reasons, Trotter J.A. rejected the Crown’s argument that Mills had recognized that there is no true search – and therefore no reasonable expectation of privacy – in electronic communications where, as a result of an investigative technique, the police initiated or became involved in the exchange. Rather, he interpreted Mills as having “carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient” – in that case, the victimization of children: at para. 62. See also Lambert, at para. 60, where Paciocco J.A., in obiter, similarly suggested that there is no reasonable expectation of privacy in an electronic message sent by a Charter claimant to a victim where the electronic messages are used to commit the offence.
[64] To the extent that Mills carves out an exception that there is no reasonable expectation of privacy in text messages where the messages themselves constitute a crime against the recipient, this case falls squarely within that exception. The text messages sent by the appellant to the complainant constituted the offence of child luring: they were sent to the complainant to further the commission of the offences of sexual assault and sexual interference. As such, the appellant had no reasonable expectation of privacy in the messages.
[65] Accordingly, I accept the Crown’s alternative argument for concluding that the appellant lacked standing under s. 8 of the Charter to challenge the admissibility of the text messages at his trial. . R. v. Gauthier [voicemail]
In R. v. Gauthier (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from a first degree murder conviction.
Here the court considered whether there was "no reasonable expectation of privacy [SS: Charter s.8 'search and seizure'] in a voicemail that the trial judge described as threatening and harassing", and thus voicemail recordings could be admitted:[8] The appellant’s primary ground of appeal is that the trial judge erred by admitting the voicemail left for Dr. Morrison. The appellant argues that the police violated the appellant’s s. 8 Charter rights when they made and seized a copy of the voicemail without a warrant. He argues that the evidence should have been excluded from the trial.
[9] I do not accept the appellant’s submission. As I will explain below, the trial judge did not err in admitting the voicemail. There is no question that individuals have a reasonable expectation of privacy in private medical communications. But here, I agree with the trial judge that there was no reasonable expectation of privacy in a voicemail that the trial judge described as threatening and harassing. In this case, the appellant left a voicemail that was part of an overall pattern of harassment of Dr. Morrison and her staff. Indeed, the appellant was consequently charged with criminal harassment. Since the appellant had no reasonable expectation of privacy in the voicemail he left for the doctor, the Charter was not triggered and there was no violation of s. 8: R. v. Lambert, 2023 ONCA 689, (2023) 169 O.R. (3d) 81 (C.A.), at paras. 59 to 62.
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(d) The Appellant Did Not have a Reasonable Expectation of Privacy
[37] The applicable s. 8 principles are not controversial. Section 8 protects a claimant’s reasonable expectation of privacy against unreasonable state intrusion. State action will amount to a search and seizure under s. 8 if that conduct infringes on the complainant’s reasonable expectation of privacy in the subject matter of the search or seizure: see Lambert, at para. 70; and R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, at para. 43.
[38] I agree with the trial judge’s conclusion that the appellant did not have a reasonable expectation of privacy in the voicemail message he left for Dr. Morrison.
[39] The determination of whether a claimant has a reasonable expectation of privacy involves a factual and a normative inquiry. In R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28, Karakatsanis J. put it this way:In assessing whether a claimant has a reasonable expectation of privacy in an item that is taken, courts must consider “the totality of the circumstances”. In particular, they must determine (1) the subject matter of the alleged seizure; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable. The reasonable expectation of privacy standard is normative, rather than descriptive. The question is whether the privacy claim must “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society”. Further, the inquiry must be framed in neutral terms — “[t]he analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought”. [Citations omitted.] [40] In a recent decision in Singh, at para. 63, Doherty J.A. observed that broader societal concerns, particularly public safety and security, must be factored into the reasonable expectation of privacy calculus.
[41] I accept the appellant’s argument that the jurisprudence supports a broad grant of protection to two-way electronic communications, and that the nature of the relationship between Dr. Morrison and the appellant (i.e., doctor and patient) was an important normative factor in assessing the reasonable expectation of privacy: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608. For example, in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, four justices held that there should not be a reasonable expectation of privacy in communications between adults and children who are strangers to them. This decision was summarized by Trotter J.A. in Campbell, at para. 63, where he acknowledged that an analysis of the relationship between the parties to a communication, in determining whether normative factors negate a reasonable expectation of privacy, is generally an important consideration.
[42] However, there is another competing normative consideration in this case, namely that the evidence before the trial judge established that the appellant was committing the act of criminal harassment in the communication he now claims to have been private. In Campbell, the police arrested an individual. An officer looked at the arrestee’s cell phone, and saw notifications for incoming text messages that were indicative of a drug transaction in progress. The police took the arrestee’s phone, and texted in-character to arrange to meet, surprise, and arrest the person texting with them, who turned out to be Mr. Campbell. At trial, Mr. Campbell asserted a reasonable expectation of privacy in his text exchange with the arrestee’s phone. The Crown argued that under Mills, there was no reasonable expectation of privacy. Trotter J.A. disagreed. He found that the facts were very similar to the Supreme Court of Canada’s decision in Marakah, and so presumptively there was a reasonable expectation of privacy. Ultimately, Trotter J.A. concluded that Marakah sets out a broad presumption of reasonable expectation of privacy over text messages, but that “Mills carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient – in that case, the victimization of children”: Campbell, at para. 62.
[43] In Lambert, Paciocco J.A. also recognized that a Charter claimant may have no reasonable expectation of privacy “where electronic messages sent by the Charter claimant to the victim are used as the means of committing the offence charged, such as the offence of threatening to cause death or bodily harm, or criminal harassment”: Lambert, at para. 60.
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[50] I conclude that s. 8 of the Charter was not triggered because the appellant had no reasonable expectation of privacy in the voicemail. My conclusion is fortified by the British Columbia Court of Appeal’s decision in R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151. There the court considered whether a person who sends a threatening text message has a reasonable expectation of privacy in that message. The court held that they do not. The court noted that the reasonable expectation of privacy is a normative standard and the court reasoned that on a normative perspective, “a person who threatens another has no right to expect that the person who has been threatened will keep the threat private”: Pelucco, at para. 61. The same holds true with harassing messages.
[51] In sum, the appellant had no reasonable expectation of privacy in the knowledge that Dr. Morrison had regarding the details disclosed in the message, and he had no reasonable expectation of privacy in a voicemail sent to Dr. Morrison that was the means of committing an offence with which he was charged in this case: criminal harassment: Lambert, at para. 60.[7] The reason why boils down to this: a reasonable person in Canada ought not to expect privacy in leaving a voicemail for a recipient that itself constitutes a crime. . R. v. Suman
In R. v. Suman (Ont CA, 2026) the Ontario Court of Appeal allows a Crown appeal, this brought against acquittals when the trial court found that the respondent had "a reasonable expectation of privacy in his text messages to K.G. and excluded the messages from trial, along with evidence obtained as a result of those messages".
The court considers CCC 172.1 ['Disorderly Conduct - Agreement or arrangement — sexual offence against child'], here in a text message context where the issue was 'reasonable expectation of privacy':[48] In all of these circumstances, the respondent’s subjective expectation of privacy in his conversation with K.G. was not objectively reasonable.
The exception analysis
[49] A more straightforward route to the same conclusion is possible based on the exception recognized in Knelsen and in Gauthier.
[50] It is an offence pursuant to s. 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, to communicate by means of telecommunications with a person under the age of 18 to facilitate the commission of an offence with respect to that person under s. 286.1(2) – specifically, obtaining for consideration, or communicating with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18. These offences reflect Canadian public policy, which among other things is designed to protect people from sexual exploitation, an approach Parliament adopted following the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. As this court explained in R. v. N.S., 2022 ONCA 160, 169 O.R. (3d) 401, at para. 21, leave to appeal refused, [2022] S.C.C.A. No. 281:While some advocated for the decriminalization and regulation of the sex trade, Parliament adopted a variant of the so-called “Nordic Model”, which had been adopted in several other countries. The Nordic Model views the sex trade as a form of sexual exploitation. It targets those who create the demand for prostitution and those who capitalize on it. Parliament did not accept that persons who provide sexual services for consideration should be viewed as “workers” and that prostitution should be legal sex “work”[.] [Citation omitted]. [51] As in Gauthier, the communication is the means of committing the offence against the recipient, and as a result there can be no reasonable expectation of privacy in the communication. To conclude otherwise is, in effect, to conscript the recipient of an electronic message – the victim of the offence – into protecting the privacy of the person who seeks to shield their commission of the offence.
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