R. v. KNELSEN, 2024 ONCA 501, JUNE 21, 2024.

FACTS:  The accused was convicted of the offences of sexual assault, sexual interference, and child luring by means of telecommunication.  At his trial, the Crown introduced text messages sent between the accused and the complainant that were stored on the complainant’s cell phone. The police obtained them by consent and without a warrant.  The circumstances were described by the Court of Appeal in the following manner (at paragraphs 8 to 10):

On October 18, 2017, the complainant, who was 15 years old, was found passed out on the front porch of her family home with her clothing in disarray. Her family took her to a local hospital, where she was examined. Sexual intercourse was confirmed.

The next day, the complainant provided a statement to the police: she had met the appellant three days earlier at a party, she had told him she was 15 years old and had learned he was 27, and they had exchanged phone numbers. The complainant indicated that the two communicated by text message over the next three days, planning to meet to have sex, and that they had also messaged about what they liked to do for fun and about their families. She recalled meeting up with the appellant, drinking alcohol to the point of intoxication, and then waking up in the hospital.

After taking her statement, the police obtained signed consents from the complainant and her father to search her cell phone for conversations with the appellant, whose phone number she had saved in her contacts under the name “Superman”. A police digital forensic technician downloaded the contents of the complainant’s phone and prepared an extraction report containing all text messages between the complainant and “Superman”.

The trial judge found that the text messages had been obtained in violation of section 8 of the Charter, but ruled that they were admissible under section 24(2) of the Charter.

The accused appealed from conviction, arguing that the trial judge erred in his section 24(2) analysis.

HELD: The appeal was dismissed.  The Ontario Court of Appeal concluded that “the trial judge erred in concluding that the appellant had standing to assert his s. 8 rights and challenge the admissibility of the text messages…[T]he appellant did not have a reasonable expectation of privacy in text messages he sent to the complainant – that he met only once and whom he knew was 15 – to arrange to meet for sex. Further, and in the alternative, the text messages did not attract any protection under s. 8 of the Charter because they were the means by which the appellant committed the offence of child luring…The text messages were accordingly admissible at trial, and there is no basis to set aside the appellant’s convictions. It is therefore unnecessary to address the arguments respecting the trial judge’s s. 24(2) analysis” (at paragraphs 6 and 7).

An Expectation of Privacy?

The Court of Appeal indicated that “there is no automatic standing to assert a s. 8 right in respect of text messages that have been sent and received…Whether there is a reasonable expectation of privacy depends on the ‘totality of the circumstances’… The question is whether a reasonable and informed person in the position of the accused would expect privacy in the subject matter of the search…The ‘totality of the circumstances’ test depends on a non-exhaustive list of factors, including (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation would be details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter” (at paragraphs 38 and 39).

The Court of Appeal concluded that that “based on what the police knew before they accessed the text messages about the nature of the relationship between the complainant and the appellant (that they were practically strangers who had met only once) and the circumstances surrounding it (that the appellant knew the complainant was a child and he was communicating to arrange to meet for sex), there was no reasonable expectation of privacy in the text messages. Any subjective expectation of privacy the appellant might have had in the messages he was exchanging with the complainant was not objectively reasonable given the totality of the circumstances and the important societal interest in protecting vulnerable children from sexual exploitation” (at paragraph 58).

In the alternative, the Court of Appeal suggested that “[t]o the extent that Mills carves out an exception that there is no reasonable expectation of privacy in text messages where the messages themselves constitute a crime against the recipient, this case falls squarely within that exception. The text messages sent by the appellant to the complainant constituted the offence of child luring: they were sent to the complainant to further the commission of the offences of sexual assault and sexual interference. As such, the appellant had no reasonable expectation of privacy in the messages” (at paragraph 64).