COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Marakah, 2016 ONCA 542
DATE: 20160708
DOCKET: C60175
MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen
Respondent
and
Nour Marakah
Appellant

Mark J. Sandler and Wayne Cunningham, for the appellant
Randy Schwartz, for the respondent Her Majesty in Right of Ontario
Nick Devlin, for Her Majesty in Right of Canada
Susan Chapman and Naomi Greckol-Herlich, for the intervener Criminal
Lawyers’ Association
Heard: April 4 and 5, 2016
On appeal from the pre-trial ruling by Justice Laurence A. Pattillo of the Superior
Court of Justice, dated September 17, 2014 and the convictions entered on
November 14, 2014 by Justice Brian P. O’Marra of the Superior Court of Justice.

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MacPherson J.A.:
A.

INTRODUCTION

[1]

The appellant, Nour Marakah, was convicted of multiple firearms offences.

The convictions were ultimately dependent on the contents of text messages
between Marakah and his former co-accused, Andrew Winchester. The text
messages contained discussions between the two men concerning gun
trafficking.
[2]

In a pre-trial ruling on a Charter application, the application judge held that

the appellant did not have standing to challenge the search of Winchester’s
iPhone as unlawful. He lacked standing because he did not have a reasonable
expectation of privacy in the text messages extracted from Winchester’s iPhone.
In the words of the application judge:
[102] … Once the message reaches its intended
recipient … it is no longer under the control of the
sender. It is under the complete control of the recipient
to do with what he or she wants. In my view, there is no
longer any reasonable expectation of privacy in the
sender.
[3]

The principal issue on this appeal is whether the application judge’s ruling

is correct.
[4]

This appeal was heard together with R. v. Jones, 2016 ONCA 543 and R.

v. Smith, 2016 ONCA 544. The court has released three separate sets of
reasons in these appeals.

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B.

FACTS
(1)

[5]

The parties and events

In 2012, the Toronto Police Service commenced an investigation into

persons who had legally purchased a number of firearms over a short period of
time. The investigation led to Winchester who had legally purchased 45 firearms
over a six-month period.
[6]

As part of the investigation, the police received information from a

confidential informant that implicated Marakah.
[7]

The police obtained search warrants at four locations – three associated

with Winchester and one with Marakah.
[8]

On November 6, 2012, the police executed all four search warrants. They

arrested Winchester and seized his iPhone. Later that same day, the police
searched Marakah’s residence. When the police entered Marakah’s residence,
Marakah grabbed his Blackberry phone. A police officer knocked it out of his
hand and arrested him.
[9]

Both phones were put through a forensic search. The phones contained

text messages between Marakah and Winchester that clearly implicated them in
gun trafficking.

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(2)
[10]

The application judge’s decision

Marakah challenged the search warrant on his residence and the search

and seizure of both his and Winchester’s cell phones. After a 10-day hearing, the
application judge delivered a comprehensive judgment in which he reached three
conclusions:
[126] For the above reasons therefore, the following are
my conclusions with respect to the three parts of Mr.
Marakah’s Charter Application:
1. Mr. Marakah’s s. 8 Charter challenge to
exclude from evidence the items seized by the
police during the search of his residence on
November 6, 2012 is allowed and the evidence is
excluded pursuant to s. 24(2) of the Charter;
2. Mr. Marakah’s s. 8 Charter challenge to
exclude evidence obtained from his phone that
was seized from him by police at the time of his
arrest on November 6, 2012 is also allowed and
the evidence is excluded pursuant to s. 24(2) of
the Charter; and
3. Mr. Marakah’s s. 8 Charter challenge to
exclude the evidence of his text messages found
by the police on Andrew Winchester’s phone on
November 6, 2012, is dismissed.
[11]

On the third issue above, the core of the application judge’s ruling is

contained in the following paragraphs:
[84] In order to assert a s. 8 Charter right, the applicant
must establish a reasonable expectation of privacy.
See: R. v. Edwards, [1996] 1 S.C.R. 128 (SCC) at
paras. 33 and 39.

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…
[87] Mr. Marakah’s assertion of a privacy interest in text
messages he sent to Winchester invokes an assertion
of informational privacy. Patrick dealt with informational
privacy, specifically information contained in garbage.
Paraphrasing the totality of circumstances test set out
by Binnie J. at para. 27 of Patrick, it is necessary to
address:
1. Whether Mr. Marakah had a direct interest in the
contents of the text messages?
2. Whether Mr. Marakah had a subjective expectation of
privacy in the text messages?
3. If so, whether the expectation was objectively
reasonable?
…
[89] Mr. Marakah was the author of the text messages
in issue. They contained details about his activities,
albeit criminal, which were personal to him. In my view,
Mr. Marakah had a direct interest in the text messages.
[90] Binnie J. stated in Patrick, at para. 37, that the
subjective stage test was not a high hurdle. The
question is whether Mr. Marakah had or is presumed to
have had an expectation of privacy in the information
contained in the text messages.
[91] Mr. Marakah testified that the text messages he
sent to Winchester dealt with gun trafficking. He
expected them to be kept confidential by Winchester
and said that he told him a number of times to delete
the messages. Notwithstanding Mr. Marakah’s candor
about the contents of his messages, I have some
difficulty accepting his evidence that he expected the
messages to be kept confidential. If that was the case,
there would have been no need to tell Winchester to
delete them. However, given the low hurdle and the
subject matter of the messages, I am prepared to

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accept that Mr. Marakah had a subjective expectation of
privacy in the text messages.
[92] The search in issue here was of Winchester’s
phone. There is no suggestion or evidence that Mr.
Marakah had any ownership interest in or control over
Winchester’s phone.
[93] The text messages in issue were sent by Mr.
Marakah knowing that he had no control over what
would happen to them once they reached Winchester’s
phone. He obviously had some concern over what might
happen to them, given his instruction to Winchester to
delete them. Winchester was purchasing guns legally in
large numbers which were subsequently re-sold
illegally. Some were involved in criminal acts. Mr.
Marakah is alleged by the Crown to have been buying
guns from Winchester and reselling them. In such
circumstances, it is reasonable to assume that at some
point the police would trace the guns back to
Winchester and that his phone may fall into the hands of
the police.
[94] Mr. Marakah submits that in R. v. Duarte, [1990] 1
S.C.R. 30, the Supreme Court rejected the notion that a
reasonable expectation of privacy no longer exists
because the recipient of a private communication may
choose to disclose or disseminate it. Duarte dealt with
the simultaneous interception of voice communication
by the state. In my view, the risk that was considered
and rejected in Duarte is much different than the risk
that an intended recipient will forward the text to a third
party. The message has already been recorded by the
originator and is not being intercepted by the state. In
my view, a text message, because it is written, is more
akin to an email or letter than voice communication. And
because it is sent to the recipient, it is completely
beyond the control of the sender and entirely at the
whim of the recipient.
…

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[100] Mr. Marakah relies on the statements of Abella J.
in R. v. Telus Communications Co., [2013] 2 S.C.R. 3,
to the effect that text messages are like voice
communications and are made under circumstances
that attract a reasonable expectation of privacy.
[101] Telus considered whether a general warrant under
the Criminal Code could be used to authorize the
prospective daily production of text messages stored on
a computer database maintained by a service provider.
The case did not involve text messages on the
recipient’s phone. Nor did it consider the issue of
standing of the sender where the text messages were in
the hands of the recipient.
[102] I do not consider that the reasoning in Telus
changes my analysis. I accept that the sender of a text
message has a reasonable expectation of privacy in its
contents after it has been sent but before it reaches its
intended destination. This would include text messages
stored in a service provider’s data base. Once the
message reaches its intended recipient, however, it is
no longer under the control of the sender. It is under the
complete control of the recipient to do with what he or
she wants. In my view, there is no longer any
reasonable expectation of privacy in the sender.
…
[105] Having regard to the circumstances of this case,
therefore, I am unable to conclude that Mr. Marakah’s
expectation of privacy in regards to his text messages
on Winchester’s phone was objectively reasonable.
Accordingly, I hold that Mr. Marakah had no reasonable
expectation of privacy in respect of the text messages
on Winchester’s phone and therefore has no standing to
bring a s. 8 Charter challenge concerning the search of
Winchester’s phone.
[12]

Turning to s. 24(2) of the Charter, the application judge applied the factors

in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and excluded the evidence

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obtained from both the search of Marakah’s residence and the search of his cell
phone.
(3)
[13]

The trial

On November 14, 2014, Marakah was convicted of two counts of

trafficking in firearms, and one count of conspiracy to traffic in firearms,
possession of a loaded restricted firearm, and possession of a firearm without a
valid license. Two other counts of conspiracy to traffic in firearms were
conditionally stayed.
[14]

On February 20, 2015, Marakah was sentenced to nine years’

imprisonment, less 910 days as credit for pre-trial custody.
[15]

Marakah appeals his convictions. Although the Crown has not filed a

cross-appeal, it seeks to challenge the application judge’s exclusion of evidence
from the search of Marakah’s apartment and the seizure and search of his cell
phone.
C.

ISSUES

[16]

The issues on this appeal are:
Appellant’s issues

(1) Did the application judge err by concluding that the appellant had no standing
to bring a s. 8 Charter challenge concerning the search of Winchester’s cell
phone?

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(2) If the answer to (1) is ‘Yes’, should the evidence obtained by the search of
Winchester’s cell phone be excluded pursuant to s. 24(2) of the Charter?
Respondent’s issues
(3) Did the application judge err by concluding that the search of the appellant’s
apartment infringed s. 8 of the Charter?
(4) Did the application judge err by concluding that the seizure and search of the
appellant’s cell phone infringed s. 8 of the Charter?
(5) If the answers to (3) or (4) are ‘No’, did the application judge err by excluding
the evidence obtained by these searches and seizure pursuant s. 24(2) of the
Charter?
D.

ANALYSIS ON STANDING
(1)

[17]

The parties’ positions

The appellant contends that the application judge erred in concluding that

his subjective expectation of privacy in the text messages was not objectively
reasonable after the messages were received by Winchester. The appellant
makes three arguments on this issue.
[18]

First, the appellant submits that the application judge erred in law in

concluding that a reasonable expectation of privacy only extends to text
messages prior to reaching their intended destination. He relies on the broad
language in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3,

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that text messages are “private communications” akin to voice communications.
He submits that this means a reasonable expectation of privacy exists over text
messages regardless of where the text message is located, or whether it is
outside the control of the sender.
[19]

Second, the appellant argues that the factors set out in R. v. Edwards,

[1996] 1 S.C.R. 128, relate to claims of proprietary privacy interests and, as a
result, are not the appropriate lens through which courts should assess
informational privacy claims. He submits that the application judge erred in
relying on the analysis in R. v. Thompson, 2013 ONSC 4624, [2013] O.J. No.
6302, and R. v. Pammett, 2014 ONSC 1213, [2014] O.J. No. 918, which
assessed the standing issue through the lens of the Edwards factors.
[20]

In support of his argument, the appellant points to the recent British

Columbia Court of Appeal decisions in R. v. Pelucco, 2015 BCCA 370, 327
C.C.C. (3d) 151, and R. v. Craig, 2016 BCCA 154, [2016] B.C.J. No. 699. Both of
these cases found that the accused had standing to challenge the search and
seizure of electronic messages on someone else’s electronic device. In Pelucco,
the court held that a sender will ordinarily have an objectively reasonable
expectation that text messages will remain private in the hands of the recipient.
[21]

Third, the appellant submits that the application judge erred in finding the

appellant had no reasonable expectation of privacy on the basis that Winchester

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could have shared the text messages with third parties. He argues that Duarte
rejected this exact “risk analysis”. The appellant argues that Duarte cannot be
distinguished from the current situation simply because it concerned voice
communications instead of text messaging.
[22]

The intervener, the Criminal Lawyers’ Association supports the appellant’s

position.
[23]

The respondent submits that TELUS has no application to the issue of

standing in this case. Abella J.’s references to prospective text messages as
“private communications” giving rise to a reasonable expectation of privacy, in
the specific context of that case, does not mean text messages are equally
private once they are sent and stored in a recipient’s phone.
[24]

Second, the respondent submits that Edwards, as modified and expanded

upon by R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, continues to be the
appropriate framework to determine the issue of standing. Applying Edwards, the
key factors in this case are one’s ability to regulate access and control. Because
the appellant could neither regulate access nor control what happens to
Winchester’s phone, he does not have a reasonable expectation of privacy in the
copy of his messages stored on Winchester’s phone.
[25]

Finally, the respondent submits that the appellant misapplies Duarte and

points to numerous cases from the Supreme Court of Canada in which the Court

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has specifically considered the factors of regulating access and control as
relevant to, and sometimes determinative of, whether a claimant has an
objectively reasonable expectation of privacy.
(2)
[26]

Section 8 of the Charter and standing

Section 8 of the Charter protects the right to be secure from unreasonable

search and seizure. It is framed in a way that attempts to strike a balance
between important societal interests and an individual’s privacy interests: see
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at 159-60.
[27]

Like all other Charter rights, s. 8 protects people, not places. The right to

challenge the legality of a search depends upon the accused establishing that his
personal privacy interests are engaged: Edwards, at paras. 34, 45.
[28]

Section 8 does not protect all privacy interests, though. It protects only a

reasonable expectation of privacy, as explained by Dickson J. in Hunter v.
Southam, at 159-60:
The guarantee of security from unreasonable search
and seizure only protects a reasonable expectation.
This limitation on the right guaranteed by s. 8, whether it
is
expressed
negatively
as
freedom
from
“unreasonable” search and seizure, or positively as an
entitlement to a “reasonable” expectation of privacy,
indicates that an assessment must be made as to
whether in a particular situation the public’s interest in
being left alone by government must give way to the
government’s interest in intruding on the individual’s
privacy in order to advance its goals, notably those of
law enforcement. [Emphasis in original.]

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[29]

Accordingly, an accused will only have standing to challenge a search or

seizure when he or she has a reasonable expectation of privacy. Standing is not
automatic. The Supreme Court of Canada long ago rejected the notion that a
particular circumstance can attract “automatic standing”. As Cory J. emphasized
in Edwards, at para. 56: “[t]he reasonable expectation of privacy concept has
worked well in Canada. It has proved to be reasonable, flexible, and viable. I can
see no reason for abandoning it in favour of the discredited rule of automatic
standing.” See also R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at
para. 139.
[30]

Further, the decision as to whether an accused has a reasonable

expectation of privacy must be made without reference to the conduct of the
police during the impugned search: see Edwards, at para. 33. The legality or
illegality of the police search is irrelevant to the determination of standing. The
court must first determine the threshold question of whether the accused has a
reasonable expectation of privacy. If one is found, the accused then has standing
to challenge the reasonableness of the search and seizure.
[31]

It is well-established that to determine whether an accused has a

reasonable expectation of privacy, courts must take a contextual approach and
consider the totality of the circumstances: Edwards, at para. 45; R. v. Cole, 2012
SCC 53, [2012] 3 S.C.R. 34, at para. 39.

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[32]

This is true whether it is a personal, territorial or informational privacy

interest at stake. The “totality of the circumstances” test is one of substance, not
of form: Cole, at para. 40.
(a)
[33]

Is TELUS determinative of standing?

The appellant contends that TELUS is conclusive on the issue of standing

in this case.
[34]

In TELUS, the police obtained a general warrant to compel Telus to

provide copies of any text messages sent or received by two subscribers. Unlike
most telecommunication service providers at the time, Telus routinely made
electronic copies of all text messages sent or received by its subscribers during
the communications process and stored them on a database for a brief period of
time.
[35]

The issue before the court in TELUS was whether a wiretap authorization

under Part VI of the Criminal Code, R.S.C. 1985, c. C-46, as opposed to a
general warrant, was required to authorize the prospective, continuous
production of text messages stored in Telus’s database. In other words, the issue
was whether the particular technique employed by the police constituted an
“interception” of “private communications” within the meaning of s. 183 of the
Criminal Code. A majority of the court determined that a Part VI authorization
was required in those circumstances.

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[36]

Three sets of reasons were delivered in TELUS. The plurality reasons

were written by Abella J., with Lebel and Fish JJ. concurring. Moldaver J. wrote
separate concurring reasons that Karakatsanis J. joined. Cromwell J. delivered
dissenting reasons that were joined by McLachlin C.J.
[37]

The appellant relies on these passages from Abella J.’s judgment:
[1] … Despite technological differences, text messaging
bears several hallmarks of traditional voice
communication: it is intended to be conversational,
transmission is generally instantaneous, and there is an
expectation of privacy in the communication.
…
[5] Text messaging is, in essence, an electronic
conversation. The only practical difference between text
messaging and the traditional voice communications is
the transmission process. This distinction should not
take text messages outside the protection of private
communications to which they are entitled in Part VI.
Technical differences inherent in new technology should
not determine the scope of protection afforded to private
communications.
…
[32] As all parties acknowledged, it is clear that text
messages qualify as telecommunications under the
definition in the Interpretation Act. They also
acknowledged that these messages, like voice
communications, are made under circumstances that
attract a reasonable expectation of privacy and
therefore constitute “private communication” within the
meaning of s. 183. Similarly, there is no question that
the computer used by Telus would qualify as “any
device” under the definitions in s. 183.

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[38]

The appellant’s position is that the language in these passages is

conclusive of the standing issue. If text messages “attract a reasonable
expectation of privacy” then the appellant has standing to challenge the search of
Winchester’s cell phone.
[39]

I do not accept this submission for two reasons.

[40]

First, Abella J. expressly declined to decide the issue that is before the

court in this appeal:
[15] We have not been asked to determine whether a
general warrant is available to authorize the production
of historical text messages, or to consider the operation
and validity of the production order provision with
respect to private communications. Rather, the focus of
this appeal is on whether the general warrant power in
s. 487.01 of the Code can authorize the prospective
production of future text messages from a service
provider’s computer. That means that we need not
address whether the seizure of the text messages
would constitute an interception if it were authorized
after the messages were stored. [Emphasis in original.]
[41]

Second, TELUS is not a standing case. It does not address any of the

considerations relevant to the “totality of the circumstances” test applicable to the
question of standing. In my view, the appellant’s interpretation of TELUS would
create, in effect, automatic standing for anyone who sends a text message to
challenge the seizure of the text message on another’s phone. As mentioned
above, the Supreme Court of Canada explicitly rejected the automatic standing
rule.

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[42]

Such an approach would also run contrary to a long line of well-reasoned

cases that calls for an assessment of the particular facts of the case and the
totality of the circumstances, including those specifically addressing electronic
communications such as Cole and R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R.
212.
[43]

In summary, TELUS is an important case for understanding the Supreme

Court of Canada’s view of the nature and implications of informational privacy
interests. However, TELUS is far removed from being determinative of the issues
in this appeal.
(b)

Did the application judge err in applying the Edwards
factors?

[44]

The appellant contends that the assessment of a reasonable expectation

of privacy in information is governed by different considerations than those set
out in Edwards. He argues that the application judge placed undue weight on the
“territorial or proprietary analysis” in Edwards (and other cases following it) and
failed to give due consideration to the normative nature of determining a
reasonable expectation of privacy over information.
[45]

I am not persuaded by this submission.
(i) The Edwards factors and totality of the circumstances

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[46]

In my view, Edwards sets out the relevant framework for assessing

whether, “in light of the totality of the circumstances”, an asserted expectation of
privacy is subjectively and objectively reasonable: Edwards, at para. 45,
Tessling, at paras. 31-32. What particular contextual factors will be significant to
the analysis will depend on the circumstances of each case.
[47]

While I accept that the facts in Edwards concerned a privacy interest in a

property, it does not follow that the factors it sets out as relevant to standing are
inconsistent with an analysis of a right to informational privacy. On the contrary,
the factors it identifies are non-exhaustive and non-restrictive and are meant to
provide guidance, to be tailored to the precise facts of the case. Cory J. stated:
[45] … The factors to be considered in assessing the
totality of the circumstances may include, but are not
restricted to, the following:
(i)

presence [of the accused] at the
time of the search;

(ii)

possession or control of
property or place searched;

(iii)

ownership of the property or place;

(iv)

historical use of the property or item;

(v)

the ability to regulate access,
including the right to admit or exclude
others from the place;

(vi)

the existence of a subjective
expectation of privacy; and

(vii)

the objective reasonableness of the
expectation.

the

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[48]

Far from abandoning the Edwards framework, a review of the

jurisprudence reflects the Supreme Court of Canada’s recognition of Edwards as
the foundation for any analysis of a claimed privacy right. The compatibility of the
Edwards framework to assessing an informational privacy claim was first
confirmed in Tessling, when Binnie J. stated, at para. 31:
I proceed on the basis of the “totality of the
circumstances” test set out by Cory J. in Edwards and
the questions listed therein, at para. 45, but the
questions need to be tailored to the circumstances of
the present case.
[49]

Several other Supreme Court of Canada decisions involving informational

privacy interests also expressly adopt Edwards or Tessling and engage the same
or related considerations. For example, in Patrick, the Supreme Court of Canada
considered the factors relevant to assessing whether the accused had a
reasonable expectation of privacy in his garbage. Recognizing that personal,
territorial and informational privacy interests can often overlap, Binnie J. provided
the following factors for whether the expectation was objectively reasonable, at
para. 27:
a.

the place where the alleged “search” occurred; in
particular, did the police trespass on the
appellant’s property and, if so, what is the impact
of such a finding on the privacy analysis?

b.

whether the informational content of the subject
matter was in public view;

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[50]

c.

whether the informational content of the subject
matter had been abandoned;

d.

whether such information was already in the
hands of third parties; if so, was it subject to an
obligation of confidentiality;

e.

whether the police technique was intrusive in
relation to the privacy interest;

f.

whether the use of this evidence gathering
technique was itself objectively unreasonable;

g.

whether the informational content exposed
intimate details of the appellant’s lifestyle, or
information of a biographic nature.

In Spencer, the Supreme Court of Canada considered whether a computer

user has a reasonable expectation of privacy in his Internet Protocol (“IP”)
address. The police requested an Internet service provider to provide the name
and address of a subscriber assigned to a particular IP address after an
investigation revealed that the IP address was used to access and download
child pornography.
[51]

Cromwell J. noted that the assessment of whether there is a reasonable

expectation of privacy in the totality of the circumstances depends on “a large
number of interrelated factors” and that they must be adapted to the
circumstances of the particular case and looked at as a whole: Spencer, at
para. 17.
[52]

In the next paragraph, Cromwell J. listed four factors, citing Edwards,

Tessling, Cole and Patrick, that he considered relevant to the assessment on the

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facts of the case: (1) the subject matter of the alleged search; (2) the claimant’s
interest in the subject matter; (3) the claimant’s subjective expectation of privacy;
and (4) whether this subjective expectation of privacy was objectively
reasonable, having regard to the totality of the circumstances.
[53]

Finally, the Supreme Court of Canada referenced the same set of factors

in Cole, at para. 40, in which the court considered a teacher’s privacy interest in
data that he generated on a work-issued laptop. The Court concluded that the
accused had a reasonable expectation of privacy in the school’s laptop, but only
after balancing a number of factors including ownership of the property, the
school’s policies and practices related to computer use, and the nature of the
information obtained.
[54]

While the cases may phrase considerations slightly differently from one

factual scenario to another, there is much in common between the factors set out
in Edwards and those cases addressing informational privacy such as Patrick, as
well as those cases specifically addressing technological/electronic information,
such as Spencer and Cole.
[55]

In my view, the appellant’s submission that utilizing the Edwards

framework does not adequately engage normative considerations relevant to
informational privacy claims is not borne out in the jurisprudence. In particular,
the submission misses a fundamental point articulated in virtually all of the cases.

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The particular facts of each case, and not necessarily the category of privacy
right claimed (as they can often overlap), will dictate which contextual factors are
most and least relevant to the “totality of the circumstances” analysis. As
expressed by Deschamps J., dissenting in Kang-Brown, at para. 141:
As in any contextual analysis, not all the factors will be
relevant in a given case. The purpose of setting out a
non-exhaustive list of factors stated in general terms is
not to have each one considered slavishly regardless of
materiality to the specific case, but to provide a helpful
guide to ensure that relevant factors are not
disregarded.
[56]

In summary, the “totality of the circumstances” approach set out in

Edwards and restated in several Supreme Court of Canada cases fully engages
normative considerations and remains the proper framework within which to
address informational privacy issues like the one that arose in this case. I turn,
therefore, to an application of Edwards and its progeny to this appeal.
(ii) The importance of control and access in this case
[57]

In this case, the application judge’s analysis was guided by Edwards and,

on the objective reasonableness of the expectation of privacy, the factors set out
by Binnie J. in Patrick. Having regard to those factors, he found that the factors
that weighed most heavily in his assessment of the totality of the circumstances
were that: (1) the appellant had no ownership in or control over Winchester’s
phone; and (2) there was no obligation of confidentiality between the parties. I
agree with his analysis.

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[58]

The appellant argues that, while lack of exclusive control may be a factor

in assessing his right to privacy, it cannot be determinative because the
significance of “possession” and “control” is diminished in the age of modern
communication technology. I do not agree. “Control” and “access” are
fundamental to our understanding of informational privacy. As expressed by
Cromwell J. in Spencer, at paras. 39-40:
Informational privacy is often equated with secrecy or
confidentiality.
…
Privacy also includes the related but wider notion of
control over, access to and use of information, that is,
“the claim of individuals, groups, or institutions to
determine for themselves when, how and to what extent
information about them is communicated to others”: A.F.
Westin, Privacy and Freedom (1970), at p. 7, cited in
Tessling, at para. 23. La Forest J. made this point in
Dyment. The understanding of informational privacy as
control “derives from the assumption that all information
about a person is in a fundamental way his own, for him
to communicate or retain for himself as he sees fit.”
[59]

In some circumstances, “control” and “access” will have lesser significance

in analyzing whether an expectation of privacy is objectively reasonable, where
other factors must carry greater weight, based on the facts of the case.
[60]

For example, in Spencer, the overriding consideration leading to the

conclusion that the accused’s IP address engaged significant privacy interests
was the subject matter involved (anonymously undertaken on-line activities

 Page: 24

carried out on a personal computer in a private residence). The lack of control
arising from the fact that the service provider could disclose information on the
computer to the police was a relevant, but not determinative, factor. In particular,
the service provider’s ability to disclose the personal information of subscribers
was so heavily circumscribed, the Supreme Court of Canada held this factor
favoured a finding of a reasonable expectation of privacy.
[61]

In Spencer, the Supreme Court of Canada also acknowledged its

jurisprudence emphasizing confidentiality and control in cases of informational
privacy. On the facts of that case, however, anonymity also played an important
role in the privacy interest at stake.
[62]

Similarly, in Cole the school’s policy, which permitted users to use the

computers for personal purposes, heavily favoured recognizing a constitutionally
protected privacy interest. As Fish J. noted at para. 58, the accused’s webbrowsing history generated intimate information about his specific interests and
propensities going to his “biographical core”. The fact that the accused was
deprived of exclusive control and access to the personal information he chose to
record on his work computer reduced, but did not entirely override, his privacy
interest in this biographical information.
[63]

The facts of this case demonstrate that, unlike in Spencer and Cole, the

ability to control access to the information is of central importance to the

 Page: 25
assessment of the privacy claim. We are not talking about the appellant’s privacy
interest in the contents of his own phone, or even the contents of a phone
belonging to someone else, but which he occasionally used. We are also not
dealing with deeply personal, intimate details going to the appellant’s
biographical core. Here, we are talking about text messages on someone else’s
phone that reveal no more than what the messages contained – discussions
regarding the trafficking of firearms.
[64]

This is far from being a question of whether the appellant had “exclusive

control” over the content. He had no ability to regulate access and no control
over what Winchester (or anyone) did with the contents of Winchester’s phone.
The appellant’s request to Winchester that he delete the messages is some
indication of his awareness of this fact. Further, his choice over his method of
communication created a permanent record over which Winchester exercised
control.
[65]

It has never been the case that privacy rights are absolute. Not everything

we wish to keep confidential is protected under s. 8 of the Charter. In my view,
the manner in which one elects to communicate must affect the degree of privacy
protection one can reasonably expect.
[66]

In this case, the application judge properly focused on the factors of

control, access and lack of confidentiality.

 Page: 26

(c)
[67]

Contrary authorities

The principal authorities that have come to a different conclusion are two

recent decisions of the British Columbia Court of Appeal, Pelucco and Craig.
[68]

In Pelucco, the accused arranged a deal through text messages to sell a

kilogram of cocaine to a buyer. Unknown to the accused, the police stopped the
buyer during the text conversation. The buyer’s phone displayed a series of text
messages about the drug deal and the police continued the text conversation
with the accused from the buyer’s phone.
[69]

At trial, the accused sought the exclusion of the text message exchange

retrieved from the buyer’s phone. On appeal, the majority of the court upheld the
trial judge’s ruling that the accused’s right to privacy had been breached and
excluded the text messages. The anchor of the majority decision in Pelucco, as I
read it, is the proposition at para. 68 that “[a] sender will ordinarily have a
reasonable expectation that a text message will remain private in the hands of its
recipient”.
[70]

With respect, I do not agree with this proposition.

[71]

There is, in my view, a lack of empirical evidence to support a conclusion

that senders of text messages have a presumptively reasonable expectation,
from an objective standpoint, that their text messages will remain private in the
hands of the recipient. In fact, there are many examples of behaviour in text

 Page: 27

messaging (and in other forms of communication) that suggest that senders are
alive to the fact that their communications may no longer be private once sent or
made.
[72]

For example, the use of pseudonyms and coded language in text

messaging (generally in the context of criminal activity) is often used to disguise
who is speaking in a text message and the subject matter of the message.
[73]

It is also apparent that the lack of privacy over electronic messages once

in the hands of the recipient is a message reinforced in Ontario’s school
curriculum on health and safety: see Ontario, Ministry of Education, The Ontario
Curriculum, Grades 1-8, Health and Physical Education, 2015 at 194-95, online:
http://www.edu.gov.on.ca/eng/curriculum/elementary/health1to8.pdf.
[74]

Because many contextual factors can tip the balance in either direction, it

must be that the objectively reasonable expectation of a text user in a particular
case should be assessed on a case-by-case basis, not on a broad presumption
about how text messaging is used in society. Respectfully, the analysis in
Pelucco misses the mark by effectively replacing the Edwards factors with a
broad presumption not previously recognized in the jurisprudence.
[75]

Craig, on the other hand, is entirely distinguishable from the case before

this court. In Craig the accused was convicted of two offences for Internet luring
using a social media website called Nexopia used primarily by teenagers.

 Page: 28

[76]

The British Columbia Court of Appeal dismissed the appeal, but only on

the basis of the proviso in s. 686(1)(b)(iii) of the Criminal Code. It disagreed with
the trial judge’s analysis of the objective reasonableness of the accused’s
expectation of privacy, and concluded that the private, intimate nature of the
messages, coupled with the circumstances in which the information was divulged
suggested an expectation that the messages would be kept confidential.
[77]

Like Spencer and Cole, Craig placed greater weight on the subject matter

of the communications than on control because the court found the subject
matter was connected to the accused’s biographical core. However, in this case,
the subject matter does not touch on the appellant’s biographical core, and is not
of an intimate nature. As such, control and access, as discussed above, are the
primary considerations.
[78]

In the end, Edwards and its progeny apply to this appeal. Under that

umbrella, the control and access factors emphasized in Spencer are particularly
important in cases involving informational privacy and modern forms of
communication. In most cases – but not all – that should lead to a decision that a
sender controls the content and recipient of a message. However, once the
message is received, the recipient becomes the controller and the sender’s
privacy interest will generally disappear. As expressed in the dissenting reasons
of Goepel J.A. in Pelucco, with which I agree:

 Page: 29

[115] In my view, where a person voluntarily
communicates information to a third party using a
method
of
communication
that
creates
a
contemporaneous record and that message reaches its
intended recipient, the autonomy interest underlying our
s. 8 understanding of privacy is fully realized (see e.g.,
Hunter v. Southam at 159, R. v. Plant, [1993] 3 S.C.R.
281 at 293, and Tessling at para. 63).
...
[118] A person who – without any guarantee of
confidentiality or indication from the recipient that the
message will be kept confidential – communicates
information has made an autonomous choice (i.e.,
determined for himself or herself) who, how and to what
extent to communicate information to the fullest extent
possible. Any further claim against a recipient is a claim
that the sender can then determine who, how and to
what extent the recipient will communicate information
to further third parties, which interferes with the
recipient’s notional sphere of personal autonomy.
Without a pre-existing obligation or arrangement that
information will be kept confidential, it is wholly
unreasonable to expect the information will be private.
This is the conclusion found in Thompson and Pammett
and one with which I agree.
[79]

On the basis of the preceding analysis, my conclusion is that the

application judge did not err in applying the Edwards factors to the assessment of
whether the appellant had an objectively reasonable expectation of privacy.
(3)
[80]

Duarte and risk analysis

The appellant contends that the application judge erred by, in effect,

applying a risk analysis that was rejected by the Supreme Court of Canada in
Duarte. In Duarte, La Forest J. said, at 49:

 Page: 30

In summary, the question whether to regulate
participant surveillance cannot logically be made to turn
on the expectations of individuals as to whether their
interlocutor will betray their confidence. No justification
for the arbitrary exercise of state power can be made to
rest on the simple fact that persons often prove to be
poor judges of whom to trust when divulging
confidences or on the fact that the risk of divulgation is a
given in the decision to speak to another human being.
[81]

This passage, says the appellant, is directly applicable to this case and

renders the application judge’s sharp distinction between sender and recipient
problematic.
[82]

I disagree. The key point in Duarte was that the state surreptitiously

created a permanent record of oral conversations, where otherwise none would
exist. In this case, the appellant himself chose to communicate by text message,
using a medium that necessarily creates a permanent record over which he had
no control. The risk analysis rejected in Duarte does not preclude a court from
considering this choice in assessing one’s reasonable expectation of privacy in
text messages on another’s phone. The risk in this case is of a different order
than that in Duarte.
[83]

The application judge said this about the appellant’s argument grounded in

Duarte:
[94] ... Duarte dealt with the simultaneous interception
of voice communication by the state. In my view, the
risk that was considered and rejected in Duarte is much
different than the risk that an intended recipient will
forward the text to a third party. The message has

 Page: 31

already been recorded by the originator and is not being
intercepted by the state. In my view, a text message,
because it is written, is more akin to an email or letter
than voice communication. And because it is sent to the
recipient, it is completely beyond the control of the
sender and entirely at the whim of the recipient.
[84]

I agree with this analysis.
(4)

[85]

Conclusion

In my view, the application judge did not err by concluding that the

appellant had no standing to bring a Charter s. 8 challenge concerning the
search of Winchester’s cell phone. I endorse the application judge’s reasoning:
[102] ... I accept that the sender of a text message has
a reasonable expectation of privacy in its contents after
it has been sent but before it reaches its intended
destination. This would include text messages stored in
a service provider’s data base. Once the message
reaches its intended recipient, however, it is no longer
under the control of the sender. It is under the complete
control of the recipient to do with what he or she wants.
In my view, there is no longer any reasonable
expectation of privacy in the sender.
...
[105] Having regard to the circumstances of this case,
therefore, I am unable to conclude that Mr. Marakah’s
expectation of privacy in regards to his text messages
on Winchester’s phone was objectively reasonable.
[86]

In light of my conclusion on this issue, it is not necessary to address the s.

24(2) of the Charter issue relating to the evidence obtained by the search of

 Page: 32
Winchester’s cell phone. Nor is it necessary to consider the three issues raised
by the respondent.
E.

DISPOSITION

[87]

I would dismiss the appeal.
“J.C. MacPherson J.A.”
“I agree. J. MacFarland J.A.”

 H.S. LaForme J.A. (Dissenting):
A.

INTRODUCTION

[88]

Section 8 of the Charter, which guarantees “the right to be secure against

unreasonable search or seizure”, provides constitutional protection for a right to
privacy. Since Hunter v. Southam Inc., [1984] 2 S.C.R. 145, s. 8 has provided a
broad and general protection that shields a wide variety of interests, ranging from
intimate secrets hidden in one’s home to data generated and stored by an
internet service provider. In all its myriad forms, this right to privacy is valued for
its own sake and because it is a prerequisite for a free and democratic society.
As noted by La Forest J. in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-428,
[g]rounded in man’s physical and moral autonomy,
privacy is essential for the well-being of the individual.
For this reason alone, it is worthy of constitutional
protection, but it also has profound significance for the
public order. The restraints imposed on government to
pry into the lives of the citizen go to the essence of a
democratic state.
[89]

Does that constitutional right to privacy provide any protection for private

communications that have been exchanged with family members, friends,
acquaintances, and other members of one’s community? Or can the state review
and take records of these communications without legal authority to effect a
search or seizure? That is the question at the heart of this appeal.
[90]

My colleague concludes that the text messages exchanged between the

appellant and his accomplice, Andrew Winchester, do not attract a reasonable

 Page: 34

expectation of privacy. With the greatest of respect, I cannot agree with his
position. Unlike my colleague, I do not believe that it is possible to confine his
analysis to the particular circumstances of this case. In my view, a purposive
approach to s. 8, one that recognizes the values underlying that section and its
role in a free and democratic society, compels a different conclusion.1
[91]

To recap, in this case, the police seized two cell phones and obtained

copies of the text messages used to convict the appellant from both phones. The
application judge concluded that the appellant’s cell phone was seized without
legal authorization and excluded the copies of the messages obtained from his
phone. The application judge also concluded that the police searched
Winchester’s phone without legal authority to do so; however, he held that the
appellant did not have standing to challenge the latter search because he did not
have a reasonable expectation of privacy in the copies of the messages stored
on Winchester’s cell phone. As noted by the application judge at para. 102 of his
reasons, this is because
[o]nce the message reaches its intended recipient…it is
no longer under the control of the sender. It is under the
complete control of the recipient to do with what he or
she wants. In my view, there is no longer any
reasonable expectation of privacy in the sender.

1

This appeal was heard together with R. v. Jones, 2016 ONCA 543 and R. v. Smith, 2016 ONCA 544.
The court has released three separate sets of reasons in these appeals. My reasons herein are only in
respect of the Marakah appeal.

 Page: 35

[92]

With respect, I disagree. For the reasons that follow I conclude that (1) the

appellant had standing to challenge the search of Winchester’s phone and that
the search infringed the appellant’s rights under s. 8 of the Charter; (2) the copies
of the text messages obtained from Winchester’s phone should be excluded
under s. 24(2) of the Charter; and (3) this court cannot consider the Crown’s
cross-appeal. Based on these conclusions, I would allow the appeal.
B.
THE APPELLANT HAD STANDING AND THE SEARCH OF
WINCHESTER’S CELL PHONE INFRINGED SECTION 8 OF THE CHARTER
[93]

As my colleague correctly articulates, a s. 8 analysis must be conducted in

two stages. At the first stage, the court must determine if the claimant had a
reasonable expectation of privacy affected by state conduct. If the claimant had a
reasonable expectation of privacy, then she has standing and s. 8 is engaged. At
the second stage, the court must determine whether the search or seizure was
reasonable: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; R. v. Cole, 2012
SCC 53, [2012] 3 S.C.R. 34, at para. 36.
[94]

Below I first outline the legal principles that are relevant when evaluating

an asserted expectation of privacy. Then I turn to the application of those
principles and my reasons for concluding that the appellant had a reasonable
expectation of privacy implicated in the search of Winchester’s cell phone. Finally
I explain why the search of Winchester’s phone was unreasonable.

 Page: 36

(1)

Legal Principles Regarding Reasonable Expectation of Privacy

[95]

The framework for determining whether an asserted expectation of privacy

attracts constitutional protection is well established. The existence or absence of
a reasonable expectation of privacy is determined by taking into account the
“totality of the circumstances”. That, in turn, requires that courts consider and
weigh a large number of interrelated factors. The relevant factors may differ
depending on the particular context: Edwards, at para. 45; R. v. Spencer, 2014
SCC 43, [2014] 2 S.C.R. 212, at para. 17; R. v. Tessling, 2004 SCC 67, [2004] 3
S.C.R. 432, at paras. 31-32.
[96]

The wide variety and number of factors considered in assessing an

asserted expectation of privacy can be grouped under four main headings,
namely
(1)

the subject matter of the alleged search;

(2)

the claimant’s interest in the subject matter;

(3)

the claimant’s subjective expectation of privacy in the subject

matter; and
(4)

whether this subjective expectation of privacy was objectively

reasonable, having regard to the totality of the circumstances.
Spencer, at para. 18; Tessling, at para. 32; R. v. Patrick, 2009 SCC 17, [2009] 1
S.C.R. 579, at para. 27; Cole, at para. 40.

 Page: 37

[97]

The fact that these considerations must be looked at in the totality of the

circumstances underlines the point that they are often interrelated, that they must
be adapted to the circumstances of the particular case, and that they must be
looked at as a whole: Spencer, at para. 17.
[98]

The totality of the circumstances analysis requires a flexible approach. A

“realistic and meaningful” analysis cannot be conducted without such flexibility
because “individuals have different expectations of privacy in different contexts
and with regard to different kinds of information”: R. v. McKinlay Transport Ltd.,
[1990] 1 S.C.R. 627, at p. 645.
[99]

There are a few other principles that are significant for this case as well. I

note those principles now.
[100] First, the protection afforded by s. 8 should be interpreted broadly and
purposively because the protection of privacy is a prerequisite to individual
security, self-fulfilment, and autonomy, as well as to the maintenance of a thriving
democratic society: Spencer, at para. 15. Therefore, courts should take a
generous and purposive approach when evaluating an assertion of a reasonable
expectation of privacy, as that is the threshold for accessing the protection
afforded by s. 8.
[101] Second, a reasonable expectation of privacy is not merely a descriptive
term or something to be ascertained through a factual inquiry. Ultimately, as

 Page: 38

noted in Patrick, at para. 14, the inquiry is a normative one and is driven by
“value judgments which are made from the independent perspective of the
reasonable and informed person who is concerned about the long-term
consequences of government action for the protection of privacy.”
[102] Third, the analysis has a broader dimension beyond the particular
circumstances of the case before the court. This was observed by Doherty J.A. in
R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at paras. 86-87:
The courts have approached the reasonable
expectation of privacy inquiry by asking whether the
claimant had a subjective expectation of privacy and, if
so, whether in all of the circumstances that expectation
was reasonable. While both questions help to focus the
inquiry on the specific facts of the case and the values
underlying s. 8, neither question captures the entirety of
the reasonable expectation of privacy inquiry. Section 8
is concerned with the degree of privacy needed to
maintain a free and open society, not necessarily the
degree of privacy expected by the individual or
respected by the state in a given situation…
…
The ultimate question is whether the personal privacy
claim advanced in a particular case must, upon a review
of the totality of the circumstances, be recognized as
beyond state intrusion absent constitutional justification
if Canadian society is to remain a free, democratic and
open society. [Citations omitted.]
[103] Fourth, and related to the third point, it is immaterial that in a particular
case the asserted privacy claim seeks to shelter illegal activity: Spencer, at para.
36. A search that lacked legal authorization cannot be justified by the after-the-

 Page: 39

fact discovery of evidence of a crime: Patrick, at para. 32. This point was made
as follows in R. v. Wong, [1990] 3 S.C.R. 36, at p. 50:
[I]t would be an error to suppose that the question that
must be asked in these circumstances is whether
persons who engage in illegal activity behind the locked
door of a hotel room have a reasonable expectation of
privacy. Rather, the question must be framed in broad
and neutral terms so as to become whether in a society
such as ours persons who retire to a hotel room and
close the door behind them have a reasonable
expectation of privacy. [Emphasis added].
(2)

The Appellant had a Reasonable Expectation of Privacy

[104] Applying the principles noted above, I would describe the question before
us as follows: Does a person usually have a reasonable expectation of privacy in
copies of text messages exchanged with another person stored on that other
person’s cell phone?2
[105] I intend to conduct my analysis in the manner employed by Cromwell J. in
Spencer by considering (a) the subject matter of the search; (b) whether the
appellant had a personal interest in the messages and the nature of the interest
compromised by state action; (c) whether the appellant had a subjective
expectation of privacy; and (d) whether the expectation of privacy was
reasonable in these circumstances.

2

I fully appreciate that the same answer might not apply to all text messages exchanged in all situations
and that the answer may be different for different electronic communications (for instance, messages
shared with a group of people instead of just one person). On this appeal, the question will only be
answered for messages like the one at issue here.

 Page: 40

(a)

Subject Matter of the Search

[106] As noted by Doherty J.A. in Ward, at para. 65, a court identifying the
subject matter of a search must not do so “narrowly in terms of the physical acts
involved or the physical space invaded, but rather by reference to the nature of
the privacy interests potentially compromised by the state action.” Justice
Cromwell reinforced those observations in Spencer and, at para. 26, added that
courts should take “a broad and functional approach to the question, examining
the connection between the police investigative technique and the privacy
interest at stake” and should look at “not only the nature of the precise
information sought, but also at the nature of the information that it reveals.”
[107] Applying those principles to this case, with respect, I believe that my
colleague construes the subject matter of the search too narrowly. He poses the
question as being specific to the appellant’s “text messages on someone else’s
phone that reveal no more than what the messages contained – discussions
regarding the trafficking of firearms.” In my view, the analysis should not focus
too much on the individual case or messages before the court; rather, we must
consider the subject matter of searches of text messages generally.
[108] As noted by Abella J. in R. v. TELUS Communications Co., 2013 SCC 16,
[2013] 2 S.C.R. 3, at para. 5, “[t]ext messaging is, in essence, an electronic
conversation”. She also noted, at para. 1, that “[d]espite technological
differences, text messaging bears several hallmarks of traditional voice

 Page: 41

communication: it is intended to be conversational, transmission is generally
instantaneous, and there is an expectation of privacy in the communication.”
[109] As such, a typical exchange of text messages is a private communication
between two people. It is essentially a modern version of a conversation and can
contain as much private information as an oral conversation.
[110] This fact has been encountered in a few cases. For instance, in R. v. Little,
2009 CanLII 41212 (Ont. S.C.), aff’d, 2014 ONCA 339, at para. 124, Fuerst J.
noted that the police’s search of a cell phone revealed intimate details about the
defendant’s life, including text messages to and from his estranged wife. In R. v.
Craig, 2016 BCCA 154, the court was considering online private messages that
are more or less equivalent to text messages. The court noted, at para. 137, that
these communications “can be the written expression of an individual’s thoughts,
views and feelings revealing intimate and personal information about their
interests, likes, and propensities” and added, at para. 139, that the messages
before them “exposed highly intimate details of Mr. Craig’s lifestyle and personal
choices” like “aspects of his sexuality, sexual history, [and] drug use”.
[111] To conclude, I would characterize the subject matter of the search as
follows: an electronic conversation conducted between two people through text
messages that is capable of revealing private and intimate information about both
participants.

 Page: 42

(b)

Personal Interest and Nature of Interest Compromised

[112] There is little question that the appellant had a direct interest in the subject
matter of the search. The application judge, at para. 89, accepted that
proposition because the appellant is the author of a number of the messages and
a participant in the conversation with Winchester. I concur and, below, I focus on
the nature of the privacy interest at stake here.
[113] In my view, the ability of the state to review and take copies of text
messages implicates two privacy interests that are protected under s. 8.
[114] First, because text messages may contain intimate and personal
information about a person, the ability of the state to review those messages
implicates a right to control access to and use of information about oneself.
[115] This interest has been recognized since at least Dyment. At pp. 429-439,
La Forest J. noted that the notion of privacy in relation to information “derives
from the assumption that all information about a person is in a fundamental way
his own, for him to communicate or retain for himself as he sees fit” and that
“situations abound where the reasonable expectations of the individual that the
information shall remain confidential to the persons to whom, and restricted to
the purposes for which it is divulged, must be protected”. That privacy interest
can subsist even if the information at issue has been communicated and cannot
be thought of as secret or confidential: Spencer, at para. 40.

 Page: 43

[116] The Crown attempted to distinguish Dyment on the basis that, understood
in context, the principles articulated in that decision only applied to situations
where an individual retains some measure of control over the information at
issue. I do not accept this submission.
[117] In my opinion, it is clear that retaining control is not a prerequisite to
maintaining this interest in potentially private information. In R. v. Quesnelle,
2014 SCC 46, [2014] 2 S.C.R. 390, at para. 27, while discussing principles
regarding s. 8, a unanimous Supreme Court held that “[t]he circumstances (or
nature of the relationship) in which information is shared are not determinative:
the reasonable expectation of privacy is not limited to trust-like, confidential, or
therapeutic relationships” (emphasis added). The court added, at para. 38, that
“[w]hile such relationships may give rise to heightened privacy interests, their
absence is not dispositive.”
[118] To cite one obvious example, in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R.
227, the court held that the defendants in that case retained a reasonable
expectation of privacy in documents that had been stolen from them and over
which they exercised no control at the time the police examined them.
[119] As such, in my view, an individual in the appellant’s position retains an
interest in information about herself even if that information has been
communicated in the absence of a confidential or trust-like relationship.

 Page: 44

[120] Second, the reviewing or taking of text messages also constitutes an
intrusion on a “sphere of privacy” that is protected under the Charter: R. v.
Fearon, 2014 SCC 77, [2014] 2 S.C.R. 621, at para. 112, per Karakatsanis J.,
dissenting, citing Tessling, at para. 16.
[121] The harms caused by such intrusions have been acknowledged in the
case of electronic surveillance or wiretapping, which is recognized as highly
intrusive because it allows the state to intrude upon “human relations in the
sphere of very close, if not intimate communications”: R. v. Araujo, 2000 SCC 65,
[2000] 2 S.C.R. 992, at para. 21. The state reviewing or taking text messages
also provides it a window into intimate conversations and is, therefore, similarly
intrusive.
[122] Moreover, this protected private sphere is undermined by both the fact of
surveillance and the threat of intrusion. In R. v. Duarte, [1990] 1 S.C.R. 30, at p.
44, La Forest J. eloquently recorded the dangers of permitting the state to intrude
on private conversations at its discretion and how, if that were permitted, “there
would be no meaningful residuum to our right to live our lives free from
surveillance”. The effects of this intrusion would be severe. As noted by La
Forest J., at p. 54, referring to the opinion of Harlan J., dissenting, in United
States v. White, 401 U.S. 745 (1971), at pp. 787-788, such intrusion would
“smother that spontaneity – reflected in frivolous, impetuous, sacrilegious, and
defiant discourse – that liberates daily life.”

 Page: 45

[123] It is trite to note that text messaging is an increasingly common way in
which people choose to communicate and interact with one another. In my view,
these private communications are an increasingly central element of the private
sphere that must be protected under s. 8. And permitting the state to review and
take records of these communications at its discretion would result in the same
harmful intrusions decried in Duarte.
(c)

Subjective Expectation of Privacy

[124] The appellant asserted that he had a subjective expectation of privacy in
the text messages and testified in support of that assertion. The application judge
accepted this testimony.
[125] The Crown has not provided any reason for reversing the application
judge’s conclusion. This requirement is not a high hurdle and, in fact, in many
cases individuals are presumed to have a subjective expectation of privacy in the
subject matter of a search: Patrick, at para. 37. As such, I accept the application
judge’s conclusion.
(d)

Objective Reasonableness of Expectation of Privacy

[126] This stage of the analysis is the key issue on this appeal. The Crown’s
arguments are essentially focused on this stage, and my colleague generally
accepts and endorses the Crown’s submissions. As I discuss below, and with
respect to my colleague, I reject the Crown’s submissions.

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[127] I begin my analysis of this issue by discussing the decision in TELUS and
the nature of text messages as private communications. Then I address the
Crown’s submissions on the role played by control in this analysis and why I
would reject its submissions regarding Duarte. After that I address the role of
normative values in this analysis. After addressing some relevant practical
considerations I conclude my analysis of this issue.
(i)

TELUS and Text Messages as Private Communications

[128] Contrary to the Crown’s position, the fact that TELUS was not a “standing”
case is not a basis for ignoring it. As my colleague acknowledges, at para. 43 of
his reasons, “TELUS is an important case for understanding the Supreme Court
of Canada’s view of the nature and implications of informational privacy
interests.”
[129] Both Abella and Cromwell JJ., in their respective opinions, agreed that text
messages are private communications: TELUS, at paras. 32 and 135. Moreover,
the fact that all three opinions assumed that some form of authorization was
needed means that they accepted that text messages attract a reasonable
expectation of privacy.
[130] Furthermore, as already noted, after TELUS it is clear that text messaging
is essentially an electronic conversation: TELUS, at para. 5. It is well established
that an individual has a reasonable expectation of privacy in an oral

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conversation: R. v. Shayesteh (1996), 31 O.R. (3d) 161 (C.A.). Conversations
conducted via text messages should not be denied constitutional protection
merely because of differences introduced as a result of technological
development: TELUS, at para. 5. As a result of these principles, TELUS
establishes that a text message attracts a reasonable expectation of privacy, at
least while it is being transmitted.
[131] Therefore, even if TELUS is not determinative of the issues presented on
this appeal, it provides the starting point for our analysis.
(ii)

The Role of Control

[132] As noted, TELUS establishes that a person has a reasonable expectation
of privacy in a text message until it reaches its intended destination. The Crown
and my colleague seem to accept that proposition. The central issue that divides
the parties is the following: is the Crown correct in saying that the picture
changes once the message reaches its intended destination and once there is a
copy in the recipient’s phone? My colleague concludes that the Crown is correct.
For the reasons that follow, I respectfully disagree.
[133] In my opinion, the Crown overstates the role that control plays in this
analysis. Edwards and the cases that follow it have repeatedly held that a privacy
interest must be examined by looking to the totality of the circumstances. The

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jurisprudence has not provided any rigid guidelines or prerequisites for finding a
reasonable expectation of privacy.
[134] The Crown’s position, however, effectively makes control a prerequisite to
any claim for privacy. I say that is the case because the Crown is relying solely
on the absence of control in this case, and that is the only thing that distinguishes
a text message in transition (which attracts a reasonable expectation of privacy)
and one that has arrived at its intended destination (which, the Crown argues,
does not attract a reasonable expectation of privacy).
[135] In oral argument, the Crown referred to seven cases that it says
demonstrate the role played by control and lead to the conclusion it advances:
Edwards; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Buhay, 2003 SCC 30, [2003]
1 S.C.R. 631; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; Patrick; R.
v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; and Spencer.
[136] In my opinion, the Crown’s interpretation of the jurisprudence amounts to
revisionism. None of these cases state that control is a prerequisite for a
reasonable expectation of privacy. Every one reaffirms the notion that a claim for
a reasonable expectation of privacy is assessed by looking to the totality of the
circumstances. All emphasize that the analysis is context-specific and
incorporates many factors depending on the nature of the case. The very nature

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of this analysis rebuts the Crown’s submission that the absence of control alone
can end a reasonable expectation of privacy.
[137] I accept that control and the ability to regulate access is part of the totality
of the circumstances that must be considered. However, as noted in Cole, at
para. 58, while the absence of control may diminish an expectation of privacy, it
does not eliminate it.
[138] In particular, I note that courts have recognized an informational privacy
interest in cases where a claimant does not have the ability to control or regulate
access to the information at issue.
[139] For instance, in Cole, the Supreme Court found that the appellant had a
reasonable expectation of privacy in information stored on his workplace laptop.
The court reached this conclusion despite the fact that technicians from the
appellant’s workplace could remotely access the laptop and see all of the
information stored there: Cole, at para. 18. In fact, at para. 54, Fish J. noted that
“both policy [at the appellant’s workplace] and technological reality deprived him
of exclusive control over — and access to — the personal information he chose
to record on” his workplace laptop. Yet the information stored on that laptop
attracted a reasonable expectation of privacy.
[140] And in Quesnelle, the Supreme Court found that complainants have a
reasonable expectation of privacy in police occurrence reports involving them.

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The court found this expectation even though the complainants had absolutely no
control over the release or dissemination of the reports. And, at para. 38,
Karakatsanis J. stated that the absence of a “trust-like, confidential or therapeutic
relationship” did not eliminate the complainants’ expectation of privacy.
[141] The fact that the information at issue has been revealed to or shared with
someone else does not preclude a reasonable expectation of privacy. A
reasonable expectation of privacy is not an all or nothing concept: Quesnelle, at
para. 29; R. v. Mills, [1999] 3 S.C.R. 668, at para. 108. That fact has been
recognized since the origins of informational privacy and, as affirmed by
Cromwell J. in Spencer, at para. 40, there are many situations where a person
maintains a reasonable expectation of privacy even though the information at
issue has been communicated and cannot be thought of as secret or confidential.
[142] Moreover, the jurisprudence reveals a distinction between information
being revealed or available to private actors on the one hand and the same
information being examined by the state. The former does not necessarily permit
the latter. For instance, people can have a reasonable expectation that the state
will not have access to their hotel room, even if they fully expect hotel staff to
enter the room: Buhay, at para. 22; R. v. Mercer (1992), 70 C.C.C. (3d) 180 (Ont.
C.A.), at p. 186.

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[143] And, in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 59, the
court rejected the proposition that the appellant in that case lacked any
reasonable expectation of privacy in his checked luggage in an airport setting
because of the security screening that such luggage is subjected to as a
condition of travel. The court approved of the trial judge’s analysis, namely that
“while the appellant was aware of and implicitly consented to the security
screening that his bag would undergo, this did not undermine his reasonable
expectation of privacy in his checked luggage with regard to general police
investigations.”
[144] As I noted earlier, my colleague accepts the Crown’s position on the role of
control in this analysis. Relying primarily on Spencer, at para. 58 of his reasons,
he states that “‘control’ and ‘access’ are fundamental to our understanding of
informational privacy.”
[145] With respect, I draw a different conclusion from Spencer. Beginning at
para. 38, Cromwell J. identified three aspects of informational privacy: privacy as
secrecy, privacy as control, and privacy as anonymity. However, by referring to
“privacy as control”, he did not say that access and control are central to an
informational privacy claim. Rather, at para. 40, Cromwell J. affirms the principle
that “all information about a person is in a fundamental way his own, for him to
communicate or retain for himself as he sees fit” (emphasis added). And he
further affirms that this interest in maintaining control over information about

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oneself survives even where “the information [has been] communicated and
cannot be thought of as secret or confidential”.
[146] As such, I do not interpret Spencer as making control and access central
to our understanding of informational privacy. Rather, in my view, that decision
clearly emphasizes that a person retains a privacy interest in information even
where she no longer exercises control over access to that information.
[147] In conclusion, I agree that control is a factor to consider in the totality of the
circumstances. However, I do not agree that the appellant cannot maintain a
reasonable expectation of privacy in his text messages once they reached
Winchester just because he lacked the ability to control or regulate access to
those copies of his messages.
(iii) Crown’s Position Reintroduces a Risk Analysis
[148] In addition to the foregoing, I agree with the appellant’s submission that the
Crown’s position reintroduces the “risk analysis” that was soundly rejected in
Duarte.
[149] In Duarte, this court had concluded that the police did not need a warrant
to conduct “participant surveillance” and to bug conversations. This court’s
rationale was that a person who divulges any confidence always runs the risk
that her interlocutor will betray the confidence. Justice Cory explained that "[t]he
expression of the idea and the assumption of the risk of disclosure are therefore

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concomitant." Because of that risk, this court concluded that the target of
wiretapping did not have a reasonable expectation of privacy in their
conversations in a “participant surveillance” setting.
[150] The Supreme Court explicitly rejected that proposition. Justice La Forest
declared, at p. 48, that there was no “similarity between the risk that someone
will listen to one's words with the intention of repeating them” and the risk of the
state acquiring a record of those words. Moreover, he went on to note that
[t]he risk analysis relied on by the Court of Appeal fails
to take due account of this key fact that our right under
s. 8 of the Charter extends to a right to be free from
unreasonable invasions of our right to privacy. The
Court of Appeal was correct in stating that the
expression of an idea and the assumption of the risk of
disclosure are concomitant. However, it does not follow
that, because in any conversation we run the risk that
our interlocutor may in fact be bent on divulging our
confidences, it is therefore constitutionally proper for the
person to whom we speak to make a permanent
electronic recording of that conversation. The Charter,
it is accepted, proscribes the surreptitious recording by
third parties of our private communications on the basis
of mere suspicion alone. It would be strange indeed if,
in the absence of a warrant requirement,
instrumentalities of the state, through the medium of
participant surveillance, were free to conduct just such
random fishing expeditions in the hope of uncovering
evidence of crime, or by the same token, to satisfy any
curiosity they may have as to a person's views on any
matter whatsoever.
[151] The Crown argues that the analysis from Duarte does not apply in the
present case. They argue that its rationale applies only to ephemeral oral

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conversations, but cannot apply to text messaging since it is not ephemeral and
since using text messages necessarily creates a record. My colleague, at para.
82 of his reasons, finds merit in the Crown’s submissions.
[152] In my opinion, and with respect to my colleague, the Crown’s attempt to
distinguish Duarte is not persuasive. The decision in Duarte demonstrates that
the police cannot interfere with individuals’ reasonable expectation of privacy in
their conversations without prior judicial authorization. As already noted, text
messaging is an electronic conversation. The only difference between the text
messages at issue here and the conversations at issue in Duarte is that in Duarte
the state was creating records of the conversations whereas in this case the
state is obtaining records created by the transmission process of text messaging.
[153] That distinction, in my view, is not enough to make Duarte inapplicable. In
particular, I note that it makes no meaningful difference to the privacy interests
implicated or the dynamics at issue. In both scenarios an individual is sharing
potentially private information with another person and not with the general public
or the state, the person revealing the information is abandoning control over the
information by expressing it and no longer keeping it to herself, and the person
sharing the information assumes the risk that the recipient may breach their
confidence.

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[154] If the expression of an idea does not eliminate a reasonable expectation of
privacy in the case of oral communications, there is no rational reason why it
should in the case of text messaging. Therefore, the fact that the recipient of a
text message may disseminate it does not preclude the sender maintaining a
reasonable expectation of privacy in that text message.
(iv)

Privacy as a Normative Concept

[155] The Crown’s position, in my view, ignores the normative aspect of this
inquiry. As noted, assessments of privacy claims are “laden with value judgments
which are made from the independent perspective of the reasonable and
informed person who is concerned about the long-term consequences of
government action for the protection of privacy”: Patrick, at para. 14.
[156] This observation was the cornerstone of the analysis of the majority in R.
v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151. At para. 63, Groberman J.A.
explained that the real question before them was “whether, in keeping with
societal and legal norms in Canada, the sender of a text message should
reasonably expect that the texts will remain private on the recipient’s device”
(emphasis added). At para. 68, he concluded that “the Crown’s position on this
appeal – effectively that a sender never has a reasonable expectation that a
message will remain private after delivered to a recipient’s device – does
not…comport with social or legal norms.”

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[157] I agree with that conclusion.
[158] The Crown, before this court, attacks the analysis in Pelucco. According to
the Crown it simply isn’t reasonable for individuals to expect privacy in anything
they cannot control. However, the closest the Crown comes to making a
normative argument is to point to s. 162.1 of the Criminal Code, R.S.C. 1985, c.
C-46, which penalizes the dissemination of intimate pictures. They argue that
legislation like this proves that individuals cannot reasonably expect such
information to stay private.
[159] I disagree. Legislation that protects private information actually reflects
normative values that favour finding a reasonable expectation of privacy in this
case.
[160] For instance, legislation like the Personal Information Protection and
Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), has been enacted to
protect private information collected and retained by private sector organizations
engaged in commercial activities. In other words, it recognizes and protects
individuals’ privacy interests in information no longer under their control.

As

noted in Alberta (Information and Privacy Commissioner) v. United Food and
Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733, at para. 13,
it is “part of an international movement towards giving individuals better control
over their personal information.” In my view, legislation like PIPEDA evidences

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societal norms to the effect that an individual can have a privacy interest in
information she does not control and that such interests should be protected.
[161] My colleague accepts the Crown’s critique of Pelucco, and, at para. 71 of
his reasons, relies on “a lack of empirical evidence…that senders of text
messages have a presumptively reasonable expectation…that their text
messages will remain private in the hands of the recipient.” He also mentions
behaviour like the use of pseudonyms or coded language.
[162] With respect, evidence that some people do not expect that their text
messages will stay private is not a basis for denying constitutional protection for
private communications. As noted by Binnie J. in Tessling, at para. 42, courts
should not focus too much on evidence of people’s belief that their privacy
interests will not be respected or that certain information will not stay private.
[163] Moreover, in my view, my colleague’s approach turns the analysis into an
empirical one. Such an approach would not answer the real question: whether
people should be able to maintain a reasonable expectation of privacy in text
messages. And, as I have explained, relevant societal norms show that people
should be able to maintain a reasonable expectation of privacy in their text
messages, even where they do not control the records of those messages.
(e)

Practical Concerns

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[164] The Crown raises a number of practical consequences that would flow
from recognizing a privacy interest in this case. A number of them (such as a
prolixity of litigation) simply beg the question. My short response is that the
Crown’s concerns are persuasive only if the appellant does not have a
reasonable expectation of privacy; however, if he does then those concerns are
the cost we are generally willing to incur to protect the rights underlying s. 8.
[165] One of the problems raised, the “Sandhu scenario”, deserves greater
attention. I will first address that concern. Then I will outline the undesirable
consequences that would flow from accepting the Crown’s position. Finally I will
address some concerns that arise from my colleague’s analysis.
(i)

The Sandhu Scenario

[166] The Crown points to R. v. Sandhu, 2014 BCSC 303, as an example of
what could go wrong if we accept that the appellant had a reasonable
expectation of privacy in copies of text messages exchanged with Winchester.
[167] In Sandhu, the accused sent threatening text messages to the
complainant. The complainant gave the police his cell phone to look at the text
messages. The Crown later attempted to enter the text messages into evidence
at Sandhu’s trial. The trial judge held that the police violated Sandhu’s s. 8 rights
by reading the messages without obtaining a warrant.

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[168] The Crown argues that Sandhu illustrates how police investigations would
be illogically frustrated if the appellant’s position were accepted.
[169] I reject the Crown’s proposition. The scenario before this court is
manifestly different from that in Sandhu, and I do not accept that adopting the
appellant’s arguments would lead to the outcome posited by the Crown.
[170] A majority of the Court of Appeal for British Columbia rejected the same
argument in Pelucco. I would adopt their analysis on this issue, which can be
found at para. 61:
It is because the objective reasonableness of an
expectation of privacy includes normative elements that
I am of the view that the analysis in Sandhu cannot be
sustained. In that case, the judge found that the sender
of a threatening text message had an objectively
reasonable expectation that the recipient would not turn
the message over to police. If objective reasonableness
were merely a measure of probability, it could be said
that the sender had an objectively reasonable
expectation of privacy – he could reasonably expect that
the threat would be sufficient to silence the victim and
his message would, therefore, remain private. Once
normative elements of reasonableness are recognized,
however, it becomes clear that a person who threatens
another has no right to expect that the person who has
been threatened will keep the threat private. [Emphasis
added.]
[171] The fact that the sender of the text messages in Sandhu was threatening
the recipient is a part of the totality of the circumstances that must be considered
when evaluating an assertion of a reasonable expectation of privacy. In the

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Sandhu scenario, it just would not be reasonable for someone in Sandhu’s
position to expect that their communication should be kept private.
(ii)

Permitting Infringements of Charter Rights

[172] A serious concern with the Crown’s position is made obvious by the facts
of this case. Here, the police had two separate opportunities to obtain the
evidence they seek to introduce: from the appellant’s phone and from
Winchester’s phone. The application judge found that the police infringed the
Charter when obtaining the evidence from both sources. However, if the Crown’s
position is accepted, the appellant can challenge only the admissibility of the
evidence obtained from his phone and Winchester could challenge only the
admissibility of the evidence obtained from his phone. Despite failing to conform
to the Charter, and without even the possibility of a s. 24(2) challenge, the Crown
would be permitted to use the messages as evidence against both the appellant
and Winchester.
[173] This gives rise to a serious concern in the modern world. Increasingly, the
police have access to records of electronic communications stored by third
parties. And, as far as text messages are concerned, they will always have this
ability since there will always be at least two parties with a copy of the messages.
[174] In my view, concluding that individuals cannot challenge the search or
seizure of records of their text messages will permit the Crown to routinely admit

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such messages into evidence even if the messages were obtained in defiance of
Charter-protected rights and even if the admission of the evidence will bring the
administration of justice into disrepute.
[175] The Crown argues that denying standing will not lead to the problem
identified by relying on the decision in R. v. Harrer, [1995] 3 S.C.R. 562. In that
case, the Supreme Court noted that trial judges have a residual discretion to
exclude evidence if it would render a trial unfair. The Crown relies on that
proposition.
[176] In my view, Harrer does not remedy the negative consequences that flow
from the Crown’s position. Justice La Forest (who wrote the majority opinion) was
addressing a trial judge’s discretion to exclude evidence that would result in an
unfair trial. However, the exclusion of evidence under s. 24(2) is not concerned
with the fairness of individual trials; rather, its purpose is to maintain “the integrity
of, and public confidence in, the justice system” over the long-term: R. v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353, at para. 68.
[177] These two concepts – the fairness of individual trials and the long-term
reputation of the administration of justice – cannot be equated. That gap was
identified in Harrer, at para. 14, where La Forest J. noted that he did “not think
one can automatically assume that the evidence was unfairly obtained or that its
admission would be unfair (which may not be precisely the same question)

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simply because it was obtained in a manner that would…violate a Charter
guarantee.”
[178] In my view, denying standing in this case would allow the Crown to
routinely admit evidence (or at least certain kinds of evidence, i.e. text messages
and, potentially, other electronic communications) in the face of Charter
infringements. The power to protect the fairness of individual trials cannot protect
against that danger and the resulting damage to the administration of justice.
(iii)

Concerns with a Case-By-Case Approach

[179] As noted, my colleague’s analysis is focused on the particular messages at
issue on this appeal. He seems to adopt a case-by-case approach that may
result in a reasonable expectation of privacy in text messages, depending on the
content of the messages reviewed or taken by the state.
[180] With the greatest of respect, I have concerns about how such an approach
would work in practice.
[181] First, it creates an amorphous and uncertain standard that will be difficult
to implement. In most, if not all, cases, the police will not know the content of the
messages before accessing them. As such, it will be extremely difficult for them
to know whether they are complying with the Charter when they choose to review
any text messages and whether any evidence obtained during a search will
ultimately be admissible.

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[182] Second, and once again because the police must review the messages to
learn of their content, police officers will have no way of knowing whether a
particular search will intrude upon a protected privacy interest until it is too late.
The harm to people’s privacy interests will be unavoidable under such an
approach.
[183] On the other hand, requiring legal authorization before the search or
seizure of a text message provides clearer guidelines to the police, makes it
more likely that copies of messages seized will be admissible at the end of the
day, and meaningfully protects privacy interests. In my view, it is a preferable
approach from the perspective of law enforcement, people investigated by the
police, and the legal system as a whole.
(f)

Conclusion on Standing

[184] We are required to consider whether people in the appellant’s situation can
generally maintain a reasonable expectation of privacy in text messages sent to
another person. The nature of the information that such communications might
reveal and the nature of interests implicated support the appellant’s position. The
absence of control does not negate a reasonable expectation of privacy and any
reliance on the absence of control reintroduces the discredited risk analysis.
Relevant normative considerations suggest that people should be able to
maintain a reasonable expectation of privacy in text messages generally. The
appellant’s position is the practically preferable option. As such, in my view, the

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application judge erred in concluding that the appellant had no standing to bring
a s. 8 Charter challenge in connection with the search of Winchester’s cell
phone.
(3)

The Search was Unreasonable

[185] The question here is whether the search of Winchester’s cell phone was
reasonable. A search will be reasonable if (a) it was authorized by law; (b) the
authorizing law was itself reasonable; and (c) it was conducted in a reasonable
manner: Cole, at para. 37. A warrantless search is presumptively unreasonable:
Hunter, at p. 161.
[186] During the application below, the Crown relied on the common law power
to conduct a search incident to arrest. The application judge concluded that the
Crown had not provided any evidence that could discharge its onus for justifying
the warrantless search.
[187] On appeal, the Crown properly concedes that the warrantless search of
Winchester’s cell phone cannot satisfy the requirements provided in Fearon,
which was released after the application judge rendered his decision. As such,
the search was unreasonable and infringed the appellant’s rights under s. 8.
C.

THE TEXT MESSAGES OBTAINED FROM WINCHESTER’S PHONE
SHOULD BE EXCLUDED

[188] The application judge did not conduct a s. 24(2) analysis for the search of
Winchester’s cell phone. Given my conclusion that the appellant’s s. 8 rights

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were infringed, I must now consider whether the copies of the text messages
obtained from Winchester’s phone should be excluded under s. 24(2).
[189] As noted in Grant, at paras. 71-86, the admissibility of evidence under s.
24(2) is determined by examining (a) the seriousness of the Charter-infringing
state conduct; (b) the impact of the breach on the Charter-protected interests of
the accused; and (c) society’s interest in an adjudication on the merits. The
court’s role is to balance the results of these three inquiries and to “determine
whether, considering all the circumstances, admission of the evidence would
bring the administration of justice into disrepute”: Grant, at para. 71.
[190] I would exclude the evidence.
[191] On the one hand, society’s interest in adjudication on the merits favours
inclusion because the evidence at issue is reliable and essential for the Crown’s
case. Moreover, it must be acknowledged that, given the lack of control in this
case, the appellant could only maintain a reduced expectation of privacy in the
text messages stored on Winchester’s cell phone; as in Cole, that fact makes the
impact on the accused’s Charter rights less serious.
[192] On the other hand, the seriousness of the police’s conduct strongly favours
exclusion. Although the application judge indicated that the police did not exhibit
any bad faith in this case, in my view, his analysis was too restrictive. As noted
by this court in R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 51,

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serious negligence on the part of the police, while not bad faith, can nevertheless
be significant and support the exclusion of evidence. The police conduct in this
case reveals such negligence and a pattern of breaches of or disregard for
Charter rights:
 All of the evidence obtained from the appellant’s phone and
his apartment was seized pursuant to a warrant that was
quashed for being overbroad. This breach was not technical.
Despite the straightforward nature of the alleged offences, the
application judge found that the “list of items to be searched
for and seized…[was] virtually limitless”. At para. 63, the
application judge concluded that the warrant “authorized the
search and seizure of virtually everything in [the appellant’s]
apartment.” There was no justification for such a broad
warrant in this case.
 The copies of the messages from Winchester’s phone were
obtained through a warrantless, unconstitutional search.
Moreover, contrary to the Crown’s submission on appeal, the
police failed to abide by well-established principles governing
a search incident to arrest articulated in R. v. Caslake, [1998]
1 S.C.R. 51.
 The search of both cell phones also displayed a lack of
respect for privacy rights. Both the appellant’s phone and
Winchester’s phone were subjected to a full forensic analysis,
without legal authority and without placing any limits on the
analysis. There was no urgency in this case, as removing the

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cell phones’ SIM cards would have prevented remote
tampering.
[193] Furthermore, the text messages at issue are essential to the Crown’s case
only because of this pattern of Charter infringements. The messages obtained
from the appellant’s phone and evidence seized from his apartment are not
admissible because the police infringed the appellant’s s. 8 rights when obtaining
that evidence. The Crown abandoned reliance on the accused’s inculpatory
statements and evidence obtained from them when faced with a challenge to
their admissibility. And now the admissibility of the text messages obtained from
Winchester’s phone is in issue because they too were obtained in a manner that
infringed a Charter-protected right.
[194] Finally, while the search of Winchester’s phone, considered in isolation,
may be classified as a less serious breach of the appellant’s Charter-protected
interests, I would take into account the fact that the appellant suffered many
serious breaches of his Charter rights. In this case the police intruded upon
significant privacy interests by conducting a warrantless search of his home and
conducting an unnecessary and unrestricted forensic analysis of the appellant’s
phone. Refusing to exclude the text messages obtained from Winchester’s phone
would, in effect, neutralize any remedy granted for those breaches.
[195] In these circumstances, the court must distance itself from the pattern of
disregard for Charter rights and it cannot do that if it gives effect to society’s

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interest in having an adjudication on the merits. Therefore, the copies of the text
messages obtained from Winchester’s phone should be excluded.
D.

THIS COURT CANNOT CONSIDER THE CROWN’S CROSS-APPEAL

[196] To recap, the application judge excluded the copies of the messages
obtained from the appellant’s cell phone under s. 24(2). The Crown seeks to
challenge that decision on this appeal.
[197] The Criminal Code does not provide the Crown with a right of appeal
where an accused has been convicted. The Crown relies on the curative proviso
in s. 686(1)(b)(iii) of the Criminal Code, as interpreted in R. v. C.(W.B.) (2000),
142 C.C.C. (3d) 490 (Ont. C.A.), as the basis for its assertion that this court has
jurisdiction to entertain these arguments. It is worth emphasizing that the
decision in C.(W.B.) is the only basis for the Crown’s position that this court can
consider its proposed cross-appeal.
[198] In C.(W.B.), in order to establish similar fact evidence that the Crown
wanted to introduce at trial, the Crown tendered two documents. The first
document was a transcript of the facts read into court in support of the accused’s
guilty plea at a previous trial. The second document recorded a statement given
to a police officer by the complainant on the prior conviction. The trial judge
allowed the officer to read in the statement but refused to admit the transcript
because the content was the same as the statement read in by the police officer.

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[199] On appeal, the Crown agreed that the statement should not have been
entered but argued that the transcript was wrongly excluded. A majority of this
court agreed and applied the curative proviso to uphold the conviction.
[200] In my view, the Crown reads C.(W.B.) too expansively.
[201] In C.(W.B.), the trial judge had dismissed the Crown’s application to admit
the transcript because the same statement had been admitted in another form
and, therefore, the trial judge concluded that the requirement for necessity could
not be established. As such, Weiler J.A. noted, at para. 67, that the trial judge
“did not commit two separate compartmentalized errors. He committed one
global error” (emphasis added).
[202] Here, the application judge did not commit one global error but rather ruled
on two separate challenges to the admissibility of two separate sets of evidence.
The application judge noted, at para. 6, that although only one voir dire was held,
there were, in effect, three separate applications before him. Therefore, I do not
think that the two decisions at issue here can be considered as one. And, as
noted by Weiler J.A. in C.(W.B.), at para. 68, her decision was not “a wholesale
license to re-examine, on appeal, any evidence that may have been excluded in
error at a trial in order to determine whether a conviction may be upheld.”
[203] Put differently, C.(W.B.) is about the scope of the error to which the
curative proviso can be applied. Weiler J.A. concluded that the error at issue

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included both the decision to include inadmissible evidence and the resulting
decision to exclude admissible evidence. However, in this case, the Crown is not
asking us to take an expansive view of a particular error. Rather, the Crown is
trying to rely on the unique circumstances of this case (specifically that the two
separate rulings happen to concern identical evidence) to create a right to appeal
that the Criminal Code does not provide.
[204] In my view, this court should not adopt this expansive interpretation of the
curative proviso because the right to appeal is an “exceptional right” and exists
only where and to the extent provided by statute: Welch v. R., [1950] S.C.R. 412,
at p. 428. The Criminal Code, which “provides a comprehensive scheme of
criminal procedure…provides only limited rights of appeal” and Parliament’s
decision to provide or deny an appellate route in any given matter will be
motivated by various policy considerations that should not be undermined by
courts: Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at pp. 69 and 72; see also R. v.
E.F.H. (1997), 33 O.R. (3d) 202 (C.A.), at p. 214. As noted by Charron J.A. (as
she then was) in E.F.H., at p. 208,
[t]he single fundamental principle which lies beneath the
issues under consideration in this matter pertains to the
exceptional nature of an appeal. It has long been settled
law that appellate review of verdicts in criminal cases is
not a procedure known to common law. All appeals
have been creatures of statute. An appellate tribunal
has no inherent jurisdiction to entertain an appeal in
criminal cases. In order for any right of appeal to be said
to exist, it must be founded in statutory authority.

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[205] In light of these considerations, the decision in C.(W.B.) should be
construed narrowly to avoid undermining the limits placed on appeals by the
Criminal Code. Accordingly, I would decline to consider the Crown’s proposed
cross-appeal.
E.

DISPOSITION

[206] For the reasons given, I would allow the appeal, order the text messages
seized from Winchester’s cell phone be excluded from evidence, and enter
acquittals on all charges.

Released: July 8, 2016 (“J.C.M.”)
“H.S. LaForme J.A.”