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Charter - Section 8 - 'Reasonable Expectation of Privacy' (5). 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. . 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".
Here the court considered a Charter s.8 ['search and seizure'] standing issue, turning on whether the defendant has a 'reasonable expectation of privacy':Standing to challenge a search
[23] In order to have standing to assert a breach of s. 8, the burden is on the respondent to establish, on a balance of probabilities, that he has a reasonable expectation of privacy in the subject matter of the putative search or seizure. The court considers the subject matter of the search; whether the claimant has a direct interest in the subject matter; whether the claimant has a subjective expectation of privacy in the subject matter; and, if so, whether that expectation was objectively reasonable in all the circumstances: see e.g., R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-11. Only if the expectation of privacy was objectively reasonable will the respondent have standing to challenge the search on s. 8 grounds: Marakah, at para. 12.
[24] It is well established that the reasonable expectation of privacy is a normative concept: R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 7; Mills, at para. 20; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 136-37; and R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28. This means that it is an expectation of privacy that ought to be respected in particular circumstances because it deserves to be respected and, as a result, constitutionally protected. Whether an expectation of privacy deserves to be protected can be answered only following identification and careful consideration of the interests and values of a free and democratic society – the aspirational context in which normativity is determined.
[25] The analysis is content neutral in this sense: the existence of a reasonable expectation of privacy does not turn on what a search reveals. Searches are not to be justified after the fact: R. v. Campbell, 2024 SCC 42, 498 D.L.R. (4th) 195, at paras. 50-52 (“Campbell SCC”); R. v. Knelsen, 2024 ONCA 501, 439 C.C.C. (3d) 378, at para. 52, leave to appeal refused, [2024] S.C.C.A. No. 369.
[26] An accused individual’s dignity, integrity, and autonomy are important considerations in determining whether a reasonable expectation of privacy should be recognized but, as the Supreme Court has emphasized, so too are the goals of effective law enforcement: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. As the court said in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 17: “Safety, security and the suppression of crime are legitimate countervailing concerns.” This court has also affirmed the importance of public safety and security: see e.g., R. v. Chow, 2022 ONCA 555, 163 O.R. (3d) 241, at para. 34; R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, at para. 63. The question is not whether these competing goals should be balanced but how that balance is to be determined.
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