Case information

Charter of Rights — Search and Seizure — Text message conversation — Reasonable expectation of privacy — Whether the Court of Appeal for Ontario erred in concluding that the applicant had no reasonable expectation of privacy in his communications with the complainant in the circumstances of this case — If it did so err, whether the communications in question should have been excluded from evidence, pursuant to s. 24(2) of the Charter — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

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(PUBLICATION BAN IN CASE)

After a trial before judge and jury in the Ontario Superior Court of Justice, the applicant was convicted of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46; sexual interference, contrary to s. 151; and child luring by means of telecommunication, contrary to s. 172.1(1)(b).

The applicant appealed his convictions, arguing that the trial judge erred in refusing to exclude from evidence at the trial text messages between the applicant and complainant that were stored on the complainant’s phone. The trial judge found that the text messages had been obtained in violation of the applicant’s rights under s. 8 of the Canadian Charter of Rights and Freedoms, but admitted the text messages under s. 24(2).

The Court of Appeal for Ontario unanimously dismissed the appeal. In its view the trial judge erred in concluding that the applicant had standing to assert his s. 8 rights and challenge the admissibility of the text messages. Further, and in the alternative, the text messages did not attract any protection under s. 8 of the Charter because they were the means by which the applicant committed the offence of child luring. The text messages were accordingly admissible at trial, and there was no basis to set aside the applicant’s convictions. It was therefore unnecessary to address the arguments respecting the trial judge’s s. 24(2) analysis.