



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. OMarra of the Superior Court
    of Justice.

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
    Winchesters iPhone as unlawful. He lacked standing because he did not have a
    reasonable expectation of privacy in the text messages extracted from Winchesters
    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 judges
    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.

B.

Facts

(1)

The
    parties and events

[5]

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
    Marakahs residence. When the police entered Marakahs 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.

(2)

The
    application judges decision

[10]

Marakah challenged the search warrant on his residence and the search
    and seizure of both his and Winchesters 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. Marakahs
Charter
Application:

1. Mr. Marakahs 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. Marakahs 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. Marakahs s. 8
Charter
challenge to exclude the evidence of his text messages found by the police on
    Andrew Winchesters phone on November 6, 2012, is dismissed.

[11]

On the third issue above, the core of the application judges 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.



[87] Mr. Marakahs 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. Marakahs 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 accept that Mr. Marakah
    had a subjective expectation of privacy in the text messages.

[92] The search in issue here was of Winchesters phone. There
    is no suggestion or evidence that Mr. Marakah had any ownership interest in or
    control over Winchesters 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
    Winchesters 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.



[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 recipients
    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 providers 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. Marakahs expectation of privacy in
    regards to his text messages on Winchesters phone was objectively reasonable.
    Accordingly, I hold that Mr. Marakah had no reasonable expectation of privacy
    in respect of the text messages on Winchesters phone and therefore has no
    standing to bring a s. 8
Charter
challenge concerning the search of
    Winchesters 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 obtained from both the search of Marakahs residence and
    the search of his cell phone.

(3)

The trial

[13]

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 judges exclusion of
    evidence from the search of Marakahs apartment and the seizure and search of
    his cell phone.

C.

Issues

[16]

The issues on this appeal are:

Appellants
    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 Winchesters cell phone?

(2)

If the answer to (1) is
    Yes, should the evidence obtained by the search of Winchesters cell phone be
    excluded pursuant to s. 24(2) of the
Charter
?

Respondents
    issues

(3)

Did the application judge
    err by concluding that the search of the appellants apartment infringed s. 8
    of the
Charter
?

(4)

Did the application judge
    err by concluding that the seizure and search of the appellants 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)

The parties positions

[17]

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, 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 elses
    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
    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
    appellants 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 recipients 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 ones ability to
    regulate access and control. Because the appellant could neither regulate
    access nor control what happens to Winchesters phone, he does not have a
    reasonable expectation of privacy in the copy of his messages stored on
    Winchesters 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
    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)

Section 8 of the
Charter
and
standing

[26]

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 individuals 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 publics interest in being left alone by government must give way
    to the governments interest in intruding on the individuals privacy in order
    to advance its goals, notably those of law enforcement. [Emphasis in original.]

[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.

[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)

Is
TELUS
determinative of standing?

[33]

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 Teluss 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.

[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.

[38]

The appellants 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 Winchesters 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 providers 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 appellants
    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 anothers phone. As mentioned above, the Supreme Court of Canada
    explicitly rejected the automatic standing rule.

[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 Canadas 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

[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 the           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.

[48]

Far from abandoning the
Edwards
framework, a review of the
    jurisprudence reflects the Supreme Court of Canadas 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           appellants 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;

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 appellants lifestyle, or           information of a biographic
    nature.

[50]

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 facts of the case: (1) the subject matter of the alleged
    search; (2) the claimants interest in the subject matter; (3) the claimants 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 teachers
    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
    schools laptop, but only after balancing a number of factors including
    ownership of the property, the schools 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 appellants 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. 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 judges 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 Winchesters phone; and (2) there was no obligation of confidentiality
    between the parties. I agree with his analysis.

[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 accuseds IP address engaged significant privacy
    interests was the subject matter involved (anonymously undertaken on-line
    activities 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 providers 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 schools 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
    accuseds web-browsing 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 assessment of the privacy claim. We are not talking about the appellants
    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 appellants
    biographical core. Here, we are talking about text messages on someone elses
    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 Winchesters
    phone. The appellants 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.

(c)

Contrary authorities

[67]

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 buyers phone displayed a
    series of text messages about the drug deal and the police continued the text
    conversation with the accused from the buyers phone.

[69]

At trial, the accused sought the exclusion of the text message exchange
    retrieved from the buyers phone. On appeal, the majority of the court upheld
    the trial judges ruling that the accuseds 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 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 Ontarios 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.

[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 judges analysis of the objective reasonableness of
    the accuseds 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 accuseds biographical core.
    However, in this case, the subject matter does not touch on the appellants
    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
    senders privacy interest will generally disappear. As expressed in the dissenting
    reasons of Goepel J.A. in
Pelucco
, with which I agree:

[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 recipients 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)

Duarte
and risk analysis

[80]

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:

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 judges 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 ones
    reasonable expectation of privacy in text messages on anothers phone. The risk
    in this case is of a different order than that in
Duarte
.

[83]

The application judge said this about the appellants 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
    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)

Conclusion

[85]

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 Winchesters cell phone. I endorse the application judges
    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 providers 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. Marakahs expectation of privacy in
    regards to his text messages on Winchesters 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 Winchesters 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 ones 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 mans 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 ones 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
    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 appellants 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
    Winchesters 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 Winchesters cell phone. As noted by the application judge at para.
    102 of his reasons, this is because

[o]nce the message reaches its intended recipientit 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.

[92]

With respect, I disagree. For the reasons that follow I conclude that
    (1) the appellant had standing to challenge the search of Winchesters phone and
    that the search infringed the appellants rights under s. 8 of the
Charter
;
    (2) the copies of the text messages obtained from Winchesters phone should be
    excluded under s. 24(2) of the
Charter
; and (3) this court cannot
    consider the Crowns cross-appeal. Based on these conclusions, I would allow
    the appeal.

B.      THE APPELLANT HAD STANDING AND THE SEARCH OF
    WINCHESTERS 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 Winchesters cell
    phone. Finally I explain why the search of Winchesters phone was unreasonable.

(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 claimants interest in the subject matter;

(3)

the claimants 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.

[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 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-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 persons 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.

(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 appellants text messages on someone elses 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
    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.), affd, 2014 ONCA 339, at para. 124, Fuerst J. noted
    that the polices search of a cell phone revealed intimate details about the
    defendants 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
    individuals 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. Craigs
    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.

(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.

[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 appellants 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.

[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.

[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 judges 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 judges
    conclusion.

(d)      Objective Reasonableness of
    Expectation of Privacy

[126]

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

[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 Crowns
    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
    Crowns 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 Canadas 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 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
    recipients 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 jurisprudence
    has not provided any rigid guidelines or prerequisites for finding a reasonable
    expectation of privacy.

[134]

The Crowns
    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 Crowns 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
    of this analysis rebuts the Crowns 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 appellants
    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 appellants 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. 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.

[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 judges 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 Crowns 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 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)   Crowns Position Reintroduces a Risk
    Analysis

[148]

In addition to
    the foregoing, I agree with the appellants submission that the Crowns
    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 courts
    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 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 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 Crowns submissions.

[152]

In my opinion,
    and with respect to my colleague, the Crowns 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.

[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 Crowns
    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 recipients device
    (emphasis added). At para. 68, he concluded that the Crowns position on this
    appeal  effectively that a sender never has a reasonable expectation that a
    message will remain private after delivered to a recipients device  does
    notcomport with social or legal norms.

[157]

I agree with
    that conclusion.

[158]

The Crown,
    before this court, attacks the analysis in
Pelucco
. According to the
    Crown it simply isnt 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 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 Crowns critique of
Pelucco
, and, at para. 71 of his
    reasons, relies on a lack of empirical evidencethat senders of text messages
    have a presumptively reasonable expectationthat 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 peoples belief that their privacy
    interests will not be respected or that certain information will not stay
    private.

[163]

Moreover, in my
    view, my colleagues 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


[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 Crowns 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 Crowns position. Finally I
    will address some concerns that arise from my colleagues 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 Sandhus trial. The trial
    judge held that the police violated Sandhus s. 8 rights by reading the
    messages without obtaining a warrant.

[168]

The Crown argues
    that
Sandhu
illustrates how police investigations would be illogically
    frustrated if the appellants position were accepted.

[169]

I reject the
    Crowns proposition. The scenario before this court is manifestly different
    from that in
Sandhu
, and I do not accept that adopting the appellants
    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
Sandhu
scenario, it just would not be reasonable for someone in Sandhus position to
    expect that their communication should be kept private.

(ii)      Permitting Infringements of
Charter
Rights

[172]

A serious
    concern with the Crowns 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 appellants phone and from Winchesters phone. The
    application judge found that the police infringed the
Charter
when
    obtaining the evidence from both sources. However, if the Crowns 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 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 Crowns position.
    Justice La Forest (who wrote the majority opinion) was addressing a trial
    judges 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) simply
    because it was obtained in a manner that wouldviolate 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
    colleagues 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.

[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
    peoples 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 appellants 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 appellants 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 appellants
    position is the practically preferable option. As such, in my view, the
    application judge erred in concluding that the appellant had no standing to
    bring a s. 8
Charter
challenge in connection with the search of
    Winchesters cell phone.

(3)    The Search was Unreasonable

[185]

The question
    here is whether the search of Winchesters 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 Winchesters 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 appellants rights under s. 8.

C.      THE TEXT MESSAGES OBTAINED FROM WINCHESTERS PHONE

SHOULD
    BE EXCLUDED

[188]

The application
    judge did not conduct a s. 24(2) analysis for the search of Winchesters cell
    phone. Given my conclusion that the appellants s. 8 rights were infringed, I
    must now consider whether the copies of the text messages obtained from
    Winchesters 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) societys interest in an adjudication on the
    merits. The courts 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,
    societys interest in adjudication on the merits favours inclusion because the
    evidence at issue is reliable and essential for the Crowns 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 Winchesters cell phone; as in
Cole
, that fact makes
    the impact on the accuseds
Charter
rights less serious.

[192]

On the other
    hand, the seriousness of the polices 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, 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 appellants 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 appellants] apartment. There was no
    justification for such a broad warrant in this case.

·

The copies of the messages from Winchesters phone were obtained
    through a warrantless, unconstitutional search. Moreover, contrary to the
    Crowns 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 appellants phone and Winchesters 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 cell phones SIM cards would have prevented remote tampering.

[193]

Furthermore, the
    text messages at issue are essential to the Crowns case only because of this
    pattern of
Charter
infringements. The messages obtained from the
    appellants phone and evidence seized from his apartment are not admissible
    because the police infringed the appellants s. 8 rights when obtaining that
    evidence. The Crown abandoned reliance on the accuseds 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
    Winchesters phone is in issue because they too were obtained in a manner that
    infringed a
Charter-
protected right.

[194]

Finally, while
    the search of Winchesters phone, considered in isolation, may be classified as
    a less serious breach of the appellants
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 appellants phone.
    Refusing to exclude the text messages obtained from Winchesters 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 societys
    interest in having an adjudication on the merits. Therefore, the copies of the
    text messages obtained from Winchesters phone should be excluded.

D.      THIS COURT CANNOT CONSIDER THE
    CROWNS CROSS-APPEAL

[196]

To recap, the
    application judge excluded the copies of the messages obtained from the
    appellants 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 Crowns 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 accuseds 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.

[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 Crowns 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 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 procedureprovides only limited rights of appeal and Parliaments
    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.

[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 Crowns proposed
    cross-appeal.

E.       DISPOSITION

[206]

For the reasons
    given, I would allow the appeal, order the text messages seized from
    Winchesters cell phone be excluded from evidence, and enter acquittals on all
    charges.

Released: July 8, 2016 (J.C.M.)

H.S. LaForme
    J.A.





[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.



[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.


