SELECTED CASE LAW
BRITISH COLUMBIA:
In 2016 BCCA 154, Mr. C appealed his convictions for internet luring and sexually touching a minor. At trial, a conditional stay of proceeding was entered for one count of sexual assault.
Mr. C was 22 years old when he began communicating with Ms. V over Nexopia. They would chat in private messages and later arranged to meet in person, where she told him she was 13 and he brought a bottle of liquor that she drank some of. Their online conversations became increasingly sexual and they eventually met again and had sexual intercourse. Ms. V believed that Mr. C told several of her friends that they had had sex and so she ended communication with him. He tried to contact her again under his primary account as well as another account he made up.
Some girls at school heard Ms. V talking about the sexual encounter and reported it to the school authorities who contacted the police. Ms. V provided the police with print offs of their conversation, her friend Ms. C also printed off pages of messages between Mr. C and herself that contained admissions that Mr. C had sexual intercourse with Mr. V. The police later obtained a warrant to request information from Nexopia, which was sent to Detective W. There were spelling mistakes in the names on the warrant (Ms. V and her friend Ms. P). Detective W called Nexopia to ask them to revise the search with the proper spelling, but he did not amend the warrant, which had expired by that time, and the information provided by Nexopia was not limited to the dates in question, but provided all messages sent from when their accounts were opened until when they were closed.
At trial, Mr. C was sentenced to 15 months’ imprisonment, two years’ conditional propagation, and additional orders including a no-contact order, and a lifetime registration as a sex offend-er.
The appeal was brought on the question of whether the search of the private online messages between Mr. C and the girl, as well as the girl and her friends, violated Mr. C’s Charter rights against unreasonable search and seizure.Mr. C argued that he should have the same reasonable expectation of privacy as Ms. V and other witnesses, and should have been granted standing to challenge the search warrant under s. 8 of the Charter. The court framed its analysis as such:
Before commencing the analysis, it is important to set out precisely what the Crown tendered in evidence in the trial. The Crown did not tender any messages seized directly from [Mr. C’s] account. The messages were all from the accounts of E.V. and the witnesses, C.C. and H.P., who testified and who did not object to the use of their messages. The evidence tendered certainly contained messages sent by [Mr. C] to these witnesses, but were not seized from his account.
[…]
The primary issue on appeal is whether Mr. Craig had a reasonable expectation of privacy in these messages, and therefore standing to challenge the search and seizure. [1]
The warrant was for messages contained in Mr. C’s Nexopia account, as well as Ms. V and several of her friends. The court stated:
While recognizing that electronic surveillance is a particularly serious invasion of privacy, the reasoning is of assistance in this case. Millions, if not billions, of emails and “messages” are sent and received each day all over the world. Email has be-come the primary method of communication. When an email is sent, one knows it can be forwarded with ease, printed and circulated, or given to the authorities by the recipient. But it does not follow, in my view, that the sender is deprived of all reasonable expectation of privacy. I will discuss this further below. To find that is the case would permit the authorities to seize emails, without prior judicial authorization, from recipients to investigate crime or simply satisfy their curiosity. In my view, the analogy between seizing emails and surreptitious recordings is valid to this extent. [2]
In order to establish his right to challenge the legality of the search, Mr. C had to establish that his rights to privacy were violated. He claimed a privacy interest in the messages he sent to Ms. V and her friends. The court held that Mr. C did have privacy interests in the messages but the police had a warrant to obtain the information in question and the failure to renew the warrant was not a serious example of police misconduct. The societal interests in adjudicating the serious charges against a young teenaged girl weighed in favour of admitting the evidence, despite the violation of Mr. C’s privacy rights.
The appeal was dismissed.
Also see: 2013 BCSC 2098 (Sentencing); 2013 BCSC 1562 (Determination of factual issues prior to sentencing); 2012 BCSC 2188 (Ruling re: cross-examination topics); 2012 BCSC 2206 (Application for Adjournment); 2012 BCSC 2207 (Admissibility of Evidence).
[1] 2016 BCCA 154 at para 42-44.
[2] 2016 BCCA 154 at para 63.
Criminal Offence(s): Sexual Assault