REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

maxwell j.

[1] Mr. Balando is charged with sexual assault contrary to s. 271 of the Criminal Code. He has brought an application pursuant to s. 8 of the Charter of Rights and Freedoms seeking to exclude evidence of text messages seized from the complainant’s cell phone. He asserts that he retains a reasonable expectation of privacy in text messages sent to the complainant. He relies on the Supreme Court of Canada’s decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, to argue that the warrantless search of the complainant’s phone violated his rights under s. 8 of the Charter and that the messages should be excluded from evidence pursuant to s. 24(2) of the Charter.

[2] By order dated May 3, 2021, I was appointed as the case management judge over this matter. On behalf of the Crown, Mr. Weafer asks that I exercise my authority under ss. 551.1 551.3 of the Code to summarily dismiss Mr. Balando’s application on the basis that it has no chance of success. He argues that the decision in Marakah does not apply to the circumstances present in this case, namely, that the complainant consented to the police photographing the text conversations between she and the applicant. He argues that the decision in Marakah does not stand for the principle that, despite a complainant’s consent, a warrant is required for the police to photograph text messages between a complainant and an accused located on the complainant’s phone.

[3] It is well established that judges have the authority to ensure that applications are dismissed where it is apparent that the application cannot succeed. The Court of Appeal for Ontario in R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89, noted that if the defence is able to summarize the anticipated evidentiary basis for a claim and such a summary reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry.

[4] The importance of case management and using case management powers to summarily dismiss frivolous applications, whether brought by the Crown or the defence, was reiterated by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38.

[5] In Marakah, the court addressed the question of whether the sender of a text message retains a reasonable expectation of privacy in text messages sent and stored in a recipient’s phone. The court held that, in some circumstances, the sender of a text message may retain a privacy interest in the text messages sent, depending on a number of factors. At paragraphs 24-45, the court set out those factors as: (1) the place to be searched; (2) the private nature of the subject matter; and (3) control over the subject matter. In addition, at paragraphs 46-53, the court addressed policy considerations in finding a sender’s subjective expectation of privacy in text messages may be objectively reasonable.

[6] In Marakah, the police obtained a lawful warrant to search the cell phone of Mr. Marakah’s co-accused (Mr. Winchester) and located incriminating messages between Mr. Marakah and Mr. Winchester. Applying the factors set out above, the court concluded that Mr. Marakah retained a reasonable expectation of privacy in the text messages stored on Mr. Winchester’s phone.

[7] The court in Marakah did not address circumstances in which either the recipient or the sender of a text message consents to providing the police with text messages, or what impact the consent of one party has on the privacy interests of the other. In my view, the issue is still a live one following Marakah.

[8] Indeed, as Mr. Weafer fairly acknowledged in his submissions, any comments in Marakah that relate to consent searches are obiter dicta. Chief Justice McLachlin (as she then was) addressed, at paragraphs 50-52, the scenario of consent searches in addressing policy considerations raised by Justice Moldaver in his dissenting opinion. The court did not exclude the possibility that the sender of a text message may retain a reasonable expectation of privacy over a text message that is voluntarily provided to the police by the recipient or a third party.

[9] Justice Rowe, in his reasons concurring with the majority, queried at paragraph 89, whether the decision opened the door to “challenges by senders of text messages to the voluntary disclosure of those messages by recipients” and expressed agreement with Justice Moldaver’s dissenting opinion that this could lead to perverse results. However, he went on to state in that paragraph, “I see no way within the confines of this case to deal with these concerns, as they do not arise here on the facts.”

[10] As such, the specific issue raised by Mr. Balando in his application under s. 8 of the Charter was not before the court in Marakah. I do not read Marakah as having decided what impact the consent of one party to provide text messages to the police has on the privacy interests of the other party to the text messages.

[11] I therefore conclude that the application raises issues which warrant a hearing and I decline to summarily dismiss Mr. Balando’s s. 8 Charter application.

Maxwell J.

Released: May 27, 2021

COURT FILE NO.: CR-20-40000318

DATE: 20210527

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAVE EMMANUELLE BALANDO

REASONS FOR JUDGMENT

Maxwell J.

Released: May 27, 2021

R. v. Balando, 2021 ONSC 3751

Case Summary

REASONS FOR JUDGMENT

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Counsel

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Statutory Provisions 4

Legal Tests 1

Legislation 4