The applicant, Andrew White, sought a declaration that electronic messages exchanged between himself and the complainant, A.S., and in a group chat with A.S. and her mother, were not "records" under s. 278.92(1) of the Criminal Code.
This determination was crucial to avoid the requirement of an application under s. 278.93 for their use at trial.
The court, following the procedure established in R. v. W.M., reviewed the messages and applied a normative analysis to determine if the complainant had a reasonable expectation of privacy.
Considering the innocuous content, the manner of communication, the nature of the relationship (even with a minor complainant), and policy implications, the court concluded that the messages did not contain personal information for which there was a reasonable expectation of privacy.
Consequently, the application was granted, and the messages were deemed not to be "records" under the Criminal Code.