On a pre-trial Charter application, the accused sought exclusion of police photographs of text messages taken from the complainant's phone with her consent.
The court held that the accused had a reasonable expectation of privacy in texts exchanged during the parties' romantic relationship, but not in texts exchanged after the relationship ended in which the complainant accused him of rape.
Photographing the relationship texts constituted at least a search, and the complainant's consent could not authorize a third-party waiver of the accused's s. 8 rights, making the warrantless search unreasonable.
Applying s. 24(2), the court declined to exclude the evidence because the police conduct was inadvertent, the privacy impact was minimal given the complainant could testify to the texts, and society's interest in adjudicating the serious charges on their merits was high.
