R. v. Pammett

COURT FILE NO.: 13212/12

DATE: 20140225

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Pammett

BEFORE: Justice McCarthy

COUNSEL: A. Weiler & S. Egan, for the Crown T. Balka, for Pammett

HEARD: February 21, 2014

ENDORSEMENT

Background

[1] In this part of the Garofoli application, the Applicant/Defendant seeks standing to challenge the constitutional validity of a vehicle stop that occurred on Chemong Road in Peterborough on March 7, 2012 (“the Chemong Road stop”).

[2] That stop resulted in the arrest of three individuals, Skitch, Gonder and Dashuk, and the seizure of their cellular phones. A successive search warrant and production order of those phones revealed a contact list containing names which the Applicant used, together with a series of text message exchanges between the Applicant and Gonder.

Standing

[3] To challenge the constitutionality of the arrest and the subsequent search, and to seek the exclusion of the evidence obtained from the cellular phones, the Applicant first must establish standing to do so. The Applicant argues that his standing to make this challenge derives from his reasonable expectation of privacy with respect to text messages and other personal information located on the cell phones of the trio arrested at the Chemong Road stop. The Applicant relies on the decision of this court in R. v S.M., 2012 ONSC 2949, [2012] O.J. No. 2833, and the decision from the Ontario Court of Justice in R. v. Ormston, 2013 ONCJ 437, 287 C.R.R. (2d) 157.

[4] The Respondent Crown argues that the Applicant has no standing to challenge the constitutionality of the Chemong Road stop, the seizure of the phones, or the warranted seizure of either the contact lists or the text messages from the cellular phones. The Crown contends that R. v S.M. is at odds with the Supreme Court of Canada’s decision in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, and should not be followed. The Crown also submits that the decision in Ormston is not persuasive, is distinguishable from the present case and is, in any event, not binding on this court.

R. v. S.M.

[5] The decision of my brother Nordheimer J. is certainly on point. At para. 17 of that decision, he squarely addresses the issue of the privacy interest in text messages:

Conversely, I conclude that the non-owner of a cell phone does have an ongoing and important privacy interest in other information that might be obtained from another person’s cell phone. In particular, the non-owner of a cell phone has an ongoing privacy interest in text messages that are either contained in a cell phone or that can be obtained from the records of the carrier for that cell phone…

[6] The nature of text messages, being that of an instantaneously transmitted exchange of communication between persons, was of fundamental importance to the decision of Nordheimer J. He went on to state at para. 18:

…Text messages occur very much more in “real time”. Indeed, text messages are often a substitute for an actual conversation and thus are much more akin to a traditional telephone conversation than they are to other modes of communication. Emails, on the other hand, are more akin to an electronic version of a letter.

R. v. Edwards

[7] According to this Supreme Court of Canada decision, at para. 45, standing is to be determined by taking into consideration the following factors:

1. A claim of relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.
2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.
4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by police conducted reasonably.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: i. presence 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.
7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. [Citations omitted.]

Analysis

[8] With the greatest of respect to my brother Nordheimer J., I am unable to agree with his conclusion that text messages generally carry with them a reasonable expectation of privacy. While it may be possible, in an appropriate case, for an accused to establish a reasonable expectation of privacy, this expectation should not, in the absence of some subjective evidence, apply to routinely exchanged text messages. Taking into account the factors as set out in Edwards, I am unable to find any indicia of ownership or possession by the Applicant of the text messages in question. One has to presume that the Applicant understood that, in sending a text message, he was surrendering the content of the message, in a written and permanent form, to another party. The party who receives the message on his or her device inherits, from that moment, the unfettered ability and means to preserve, forward or disseminate the message, and indeed to print or archive it.

[9] I utterly fail to see the distinction between a text message and an email for the purposes of determining whether there is a reasonable expectation of privacy. Modern hand-held devices have the capability of sending and receiving both. Email is entirely capable of serving as an informal and instantaneous means of communication. Text messages are as capable of sending a perfunctory greeting as they are of conveying detailed information, attachments, photographs and the like. There was no evidence here, such as a disclaimer, of any subjective expectation of privacy. There was no restriction placed on the forwarding or disseminating of the messages. There was no instruction to delete the messages, once received. Nor is there any evidence that the Applicant or the cell phone owners ever turned their minds to the question of privacy. I note that at least one of the cell phones in question was not locked and did not require a user password to access the contents. This was one of the factors taken into account by the Ontario Court of Appeal in its decision of R. v. Fearon, 2013 ONCA 106, 114 O.R. (3d) 81, to assess the issue of whether the contents of a cell phone had been properly searched by the police. In the absence of evidence to the contrary, one has to assume that the Applicant must have known that the recipients’ devices could not provide any assurance of privacy. There is certainly no evidence to support that the Applicant had any expectation in that regard and I am not able to infer such an expectation from the record.

[10] In his reasons, Nordheimer J. recognized that a privacy interest in information contained on a contact list would be significantly reduced once that information is communicated to other persons since the sender presumably recognizes that the recipients of that information might share it with others. In my view, that logic should apply equally to text messages and be viewed as a compelling reason why, objectively speaking, there can be no reasonable expectation of privacy in a text message.

[11] Finally, the Applicant had no right of ownership or control over the vehicle or cell phones involved in the Chemong Road stop. There is no evidence that he had ever claimed any interest in the vehicle, the cell phones or their contents. He was certainly not in a position to regulate the use of the vehicle or the cell phones at the time of the search and there is no evidence that he had been in such a position in the past. I agree with the Crown that cases such as R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, stand for the proposition that a s. 8 Charter analysis should focus on the privacy of the area or thing being searched and the potential impact of the search on the person being searched, and not on the nature or identity of the concealed items. The emphasis must be on the security of the person and not on the property, wherever it happens to be.

Disposition

[12] I am therefore not prepared to follow the conclusion reached by Nordheimer J. in R. v S.M. or to follow the decision in Ormston. Having considered the criteria enumerated by the Supreme Court in Edwards and the totality of the circumstances and evidence in this case, I am led to the inescapable conclusion that the Applicant could have had no reasonable expectation of privacy in the text messages or contents (including the contact list) contained in the cell phones seized at the Chemong Road stop. It follows therefore, that the Applicant has no standing to challenge the constitutionality of the Chemong Road stop. Therefore, that part of the application is dismissed.

Justice McCarthy

Date: February 25, 2014