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Charter - Section 8 - Informational Privacy (3). 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 Charter s.8 ['search and seizure'] electronic communications doctrine (here, 'text messages') (informational privacy):[5] The law governing the freedom from unreasonable search and seizure is not so doctrinaire as to prevent the police from receiving and acting on text message evidence per se. A normative evaluation is required, and in my view the respondent cannot establish that he has a reasonable expectation of privacy in the circumstances of this case. Moreover, because the respondent’s text messages constitute the means of committing the offence against the recipient, they have no claim to s. 8 protection in any event.
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Electronic communications
Supreme Court of Canada
[27] The Supreme Court addressed the reasonable expectation of privacy in the context of electronic communications in Marakah. That case involved text messages concerning illegal firearms transactions sent by the accused to an accomplice. The court began from the premise that the subject matter of the search was the conversation between the sender of the communication and the recipient – not simply whether the conversation had occurred, but the identities of the participants, the information they shared, and the inferences that can be drawn from that information: Marakah, at para. 20. There was no question that the sender of the communications had a direct interest in them and a subjective expectation that the communications were private. This will be so in most cases involving electronic communications. The real issue was whether the expectation of privacy in the communications was objectively reasonable.
[28] A majority of the court in Marakah concluded that the accused had a reasonable expectation of privacy in his text messages despite the illegality they revealed. The majority noted that the focus was not on the content of the messages but, instead, on their potential to reveal personal or biographical information: Marakah, at paras. 32, 37. That the conversation was accessed through a phone that did not belong to the accused did not render the expectation of privacy unreasonable, nor did the shared nature of the accused’s “control” over the conversation: Marakah, at paras. 25-30, 38-45.
[29] That being said, the majority was careful to note that an exchange of electronic messages does not automatically give rise to a reasonable expectation of privacy. Rather, whether a claimant has a reasonable expectation of privacy in a given conversation falls to be assessed on the facts of each case; different facts may lead to different results. The reasonable expectation of privacy must be assessed in the totality of the circumstances: Marakah, at paras. 5, 10, and 55.
[30] McLachlin C.J. rejected concerns raised by Moldaver J. in dissent that her approach to standing was “effectively boundless” because it meant that a sexual predator victimizing children would have a reasonable expectation of privacy in their conversations on a child’s device: Marakah, at paras. 168-69. McLachlin C.J. noted that such communications might be admitted into evidence despite the existence of a reasonable expectation of privacy: the police could obtain a warrant before reviewing the messages; the Crown could establish that a warrantless search was otherwise authorized by law, was reasonable and carried out reasonably; or the court could admit messages obtained in violation of s. 8 pursuant to s. 24(2) of the Charter: Marakah, at paras. 49-52. However, as Moldaver J. observed, none of these hypotheticals contemplate a participant in an electronic conversation lacking a reasonable expectation of privacy in that conversation, nor do they provide guidance on the circumstances that would weigh against finding a reasonable expectation of privacy in an electronic conversation, despite the majority’s instruction that standing is to be assessed on a case-by-case basis: Marakah, at paras. 171-72.
[31] Subsequently, the court was required to address text messaging in the context of sexual offences against children in Mills. In that case, the accused asserted that he had a reasonable expectation of privacy in his electronic conversation with an undercover police officer posing as a 14-year-old girl. The result was a fractured court. Writing for three members of a seven-member panel, Brown J. concluded that an adult could not reasonably expect privacy with someone he believed to be a child, who was a stranger to him, in the context of an undercover police sting. Karakatsanis J., writing for two members of the court, concluded that it was not reasonable to expect text messages would be kept private from the intended recipient, “Leann” (the fictional child created by the police). Moldaver J. concurred with both decisions, while Martin J. found a breach of s. 8 but would have admitted the evidence under s. 24(2). Mills reveals considerable disquiet about the state of the law and concerns about excluding text messages from the evidence where a reasonable expectation of privacy has been found, but the police have reviewed the messages without first obtaining a search warrant.
[32] In this court’s decision in R. v. Campbell, 2022 ONCA 666, 163 O.R. (3d) 355, at para. 62 (“Campbell ONCA”), aff’d 2024 SCC 42, 498 D.L.R. (4th) 195, Trotter J.A. suggested that Mills had carved out an exception to the reasonable expectation of privacy in electronic communications established in Marakah “where the electronic communications themselves constitute a crime against the recipient – in [Mills], the victimization of children.” Writing for a majority of the Supreme Court in Campbell SCC, at para. 78, Jamal J. expressed the view that Marakah remains the governing authority on text messages and that it was not necessary to decide whether Mills created an exception or departed from the content neutral approach.
Court of Appeal for Ontario
[33] This court has considered the reasonable expectation of privacy in the context of text messages in two recent judgments. In Knelsen, the court held that the appellant, a 27-year-old man, had no reasonable expectation of privacy in text messages he exchanged with the complainant, whom he knew to be 15 years old, for purposes of committing sexual offences. His expectation of privacy was not objectively reasonable given “the totality of the circumstances and the important societal interest in protecting vulnerable children from sexual exploitation”: Knelsen, at para. 58. In the alternative to this normative argument, van Rensburg J.A. said that the case, involving the offence of child luring, fell squarely within the exception carved out in Mills: there is no reasonable expectation of privacy in text messages that themselves constitute a crime against the recipient: Knelsen, at para. 64.
[34] In R. v. P.M., 2025 ONCA 208, 176 O.R. (3d) 193, this court held that the societal interest in protecting children from sexual offences facilitated by electronic communications meant that an adult man had no reasonable expectation of privacy in text messages sent to his 10-year-old niece that facilitated the alleged sexual abuse. This court accepted the application judge’s analysis that it would have been obvious to a reasonable person that the cell phone would have been provided by the child’s parents and that they would have exercised control over it, and there was no obligation of privacy between the complainant, nor her parents, and the appellant: P.M., at para. 32.
[35] The decisions of this court in Knelsen and P.M. reinforce the notion that the reasonable expectation of privacy is context specific and emphasize the importance of protecting children from sexual exploitation. They also demonstrate that the content neutrality principle does not preclude reliance on information confirmed by the search of electronic communications per se. When analyzing the totality of the circumstances, courts may rely on information about the nature of the parties’ relationship as it was known to police prior to reviewing the communications. The consent of recipients to the police reviewing communications and the control over the communications exercised by the child’s parent are also relevant considerations.
[36] The normative rationale for the approach in Knelsen and P.M. is strong: children are vulnerable to sexual abuse and text messaging affords perpetrators the opportunity to contact victims in secrecy. Adults have no strong claim to communicate with children in secrecy, while parents have every right to control their children’s use of texting and social media in order to keep their children safe.
[37] But Knelsen also confirms the existence of an exception to any broad reasonable expectation of privacy in electronic communications based on the analysis in Marakah: there is no reasonable expectation of privacy in electronic communications that are the means of committing the offence against the recipient. In R. v. Gauthier, 2024 ONCA 621, 173 O.R. (3d) 561, leave to appeal refused, [2024] S.C.C.A. No. 436, a case that did not involve sexual offences against children, this court applied the exception identified by Trotter J.A. in Campbell ONCA, and described as arguable by Paciocco J.A. in R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at para. 60, holding that there is no reasonable expectation of privacy where the communication is the means of committing the offence against the recipient – in Gauthier, criminal harassment and harassing communications. As Coroza J.A. put it, “a reasonable person in Canada ought not to expect privacy in leaving a voicemail for a recipient that itself constitutes a crime”: Gauthier, at para. 51.
[38] This line of authority was not available to the application judge; it post-dates his decision in this case. It has not been endorsed by the Supreme Court, but neither has it been countermanded. Although a majority of that court stated in Campbell SCC that Marakah remains the governing authority, the court denied leave to appeal in both Knelsen and Gauthier. If the Supreme Court considers this authority inconsistent with Marakah, it is incumbent on that court to resolve the matter. Unless it does so, this court’s authority must be followed. . R. v. Suman [text messages]
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 'reasonable expectation of privacy', here in a text message scenario:The normative analysis
[40] There is no doubt that the respondent was directly interested in the privacy of his text messages with K.G. and had a subjective expectation of privacy in them. Text messaging has the potential to reveal deeply personal and biographical information about the participants in a conversation: Campbell SCC, at para. 59; Marakah, at para. 37. In this case, the text messages revealed the respondent’s sexual preferences and desire to pay for sex, intimate details that can be said to be part of his biographical core of personal information. That is on one side of the scale in evaluating his claim to a reasonable expectation of privacy. But on the other side are interests of considerable importance.
[41] The nature of the relationship between the parties to a conversation is an important factor in assessing the reasonable expectation of privacy: Knelsen, at paras. 51-52. So is the social value of protecting vulnerable children from exploitation through the use of electronic communications: Knelsen, at para. 45. On a normative standard, adults who are communicating with children they do not know to arrange sexual encounters cannot reasonably expect privacy in those communications: Mills, at para. 23; Knelsen, at para. 58. In this case, the respondent, an adult, was conversing online with K.G., a minor who was a stranger to him, about transactions for sex.
[42] Although K.G. initially told the respondent that she was 18, this does not tip the balance in favour of a normative justification for a reasonable expectation of privacy. The respondent chose to communicate with a stranger in order to exchange sex for money. He did so knowing that K.G. was young: he was looking for a young woman to exploit for sex and met her on a website designed to connect “younger women with older men”. He took a chance, and he continued communicating with K.G. after she confirmed she was 17. The respondent did not know K.G. except in a commercial, transactional sense. He cannot reasonably rely on any information she provided to him to establish that he was entitled to a reasonable expectation of privacy in the circumstances.
[43] The right – indeed, the moral duty – of a parent to protect his or her child weighs heavily against recognizing a reasonable expectation of privacy in the communications. As is common, K.G.’s mother owned and paid for her cellphone and had the password to it. Parents often retain control over cellphones in order to protect their children from the range of harms that may occur through Internet usage. Having found the messages to her daughter from the respondent soliciting sex, K.G.’s mother did what any parent would do – what any parent should do. She passed them on to the police to investigate the offence she thought had been committed against her daughter. It would be more than surprising if the reasonable expectation of privacy should preclude the police from acting on this information, which was voluntarily shared with them. That would be so even if K.G. refused to cooperate, but she did not; she sought the protection of law herself and authorized the police to search her cellphone.
[44] The messages were provided voluntarily by K.G. and her mother to the police. The respondent exercised a degree of control over the conversation to the extent that he chose to send messages directly to K.G., one-on-one: Marakah, at para. 39. But K.G. and her mother were free to disclose those messages to others, and they chose to do so. It is not reasonable, as a descriptive or normative matter, for the respondent to expect confidentiality in his conversation with K.G., such that third parties could not look at the communications even when invited to do so. To be sure, the possibility of disclosure does not negate a reasonable expectation of privacy against state intrusion in the electronic conversation: Marakah, at para. 45. But it does reduce the reasonableness of the expectation of privacy against voluntary disclosure of the conversation, which is what happened in this case: Knelsen, at paras. 59-60; P.M., at para. 39. The “investigative technique” employed by the police – reviewing text messages voluntarily provided to them – was not intrusive, and this supports the conclusion that the respondent’s expectation of privacy was not objectively reasonable: Tessling, at para. 50; Campbell SCC, at para. 62.
[45] This is not a case in which the Crown seeks to justify a search after the fact of the search based on the evidence the search revealed. The police did not learn of the respondent’s conduct solely as a result of a search. As in Knelsen, much was known to the police about the context and the relationship between the respondent and K.G. well before the text messages were read.
[46] Among other things, the police knew, based on interviews with both K.G. and her mother, that K.G. was a 17-year-old high school student; that she had met the respondent, an adult man, on the website “seekingarrangements.com”; that they had texted about meeting to have sex; and that sex had already taken place. The police knew that K.G. and the respondent were strangers in an exploitative relationship.
[47] The police also knew that K.G.’s mother owned and paid for her cellphone, that she had the password, and that she monitored her daughter’s text messages. And they knew that K.G. had specifically authorized the police to review her text messages.
[48] In all of these circumstances, the respondent’s subjective expectation of privacy in his conversation with K.G. was not objectively reasonable.
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