Monthly Archives: April 2016

10(b) Charter right to access counsel and ambiguous responses.

R. v. Dyck 2016 ABPC 82 – again, my usual preamble, this is a provincial court level decision, but it bears some merit. Dyck failed a screening breath test administered pursuant to the investigating officer’s demand and was arrested for impaired driving. In accordance with the usual practice, Dyck was asked if he understood the right to counsel as read by the officer. He said he did. He was then asked if he wanted to contact a lawyer and he said, “at this point I don’t want to call a lawyer”. Dyck was driven to a nearby police office. He was processed and placed in a holding cell. Shortly thereafter, evidentiary breath samples were demanded and provided, and once the paper work was prepared and served, he was released.

Dyck was never asked again if he wanted to contact counsel. Even once at the police station, he was neither offered access to a phone, nor provided any more information about accessing counsel. The officer testified that Dyck never asked, but if he had, he would have been provided an opportunity to contact counsel. In the circumstances, the officer neither sought nor obtained any formal waiver of the right to counsel.

Essentially, the Judge ruled that an ambiguous response at the roadside regarding contacting counsel should not be automatically interpreted as a failure to invoke the right to contact counsel, thereby discharging the police from any further Section 10(b) duties. Where there is an indication that the accused may not have understood the right as read, then it will not suffice for the police to rely on the “mechanical recitation” of the rights. The officer must take steps to ensure the detainee understands. Some follow up by the officer to be sure the accused understood the right was required and a breach of Dyck’s rights under the Charter Section 10(b) was shown.

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Does a person have a reasonable expectation of privacy in text messages sent to another person?

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.

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