Two cases out of the British Columbia Court of Appeal in recent months have resulted in some interesting conundrums. In R. v. Pelucco 2015 BCCA 370, the accused was arranging, through text messages, to sell a kilogram of cocaine to Guray when Guray was arrested. Upon Guray’s arrest, the police seized his cell phone. They pretended to be Guray and arranged to meet the accused. The accused was arrested, police seized the accused’s cell phone and found a record of the conversation. The accused’s vehicle was searched [and drugs found]. … The Court ruled that Guray had been unlawfully arrested and the search of the text messages on Guray’s cell phone violated Pelucco’s right to be secure against unreasonable search and seizure. The accused had a reasonable expectation that the text messages he sent to Guray would remain private. While a sender could not have absolute certainty that a text message would be kept private, a person’s right to privacy did not depend on there being no possible intrusion on that right. The fact that the conversation was for a criminal purpose did not, by itself, affect the reasonable expectation of privacy.
Fast forward to April 11, 2016, when the judgement R. v. Craig 2016 BCCA 154 was handed-down. The accused, age 22, and the complainant, age 13, connected through a social media website (Nexopia) used primarily by teenagers. They arranged to meet in person via their online communications and on a subsequent meeting, had sexual intercourse in a secluded area. The complainant subsequently ceased communicating with the accused due to her anger over his disclosure of their liaison to her friends. The complainant reported the matter to police and when the police interviewed her, she printed out some of the “messages” at the police station and showed the officers. Police arrested the accused, questioned and released him. Thereafter, police obtained a warrant for the data stored on the website’s servers related to the accused, the complainant, and her friends. Craig raised the issue that he had a reasonable expectation of privacy in these messages, and therefore standing to challenge the search and seizure.
The BCCA said it was important to keep in mind that the issue was not whether Craig’s expectation of privacy in the messages existed or was violated by the complainant or her friends giving the messages to the police (or anyone else for that matter), but whether Craig could challenge the police search and seizure of these messages. Before this case, it does not appear that an appellate court has considered this issue in the context of email or “messaging”.
The BCCA grappled with the question of whether the sender of a text message retained a privacy interest once it was received by a third party. The Court found that Craig’s expectation of privacy in the messages seized by the police was objectively reasonable. Although the messages were retrieved from third party accounts, he created the content, and they exposed highly revealing information, were not within public view, and were not expected to be circulated. The Court ruled that the risk that the recipient could disseminate messages did not destroy the sender’s reasonable expectation of privacy.
So, this is early days in ‘case law years’ for this dilemma, but it would appear from the appellate courts in BC at least, that if a witness or victim received messages via private communication (text messages, emails, etc.) from the suspect in your investigation, then you need lawful authority to get those messages from the victim’s account. Whether or not that ‘lawful’ authority can come from a common law rather than prior judicial authorization remains to be seen. I’m sure this won’t be last we see of these types of cases in the coming months.