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Criminal - Disorderly Conduct . 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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