COURT FILE NO.: CR-21-351 DATE HEARD: 2022/12/16 DATE RELEASED: 2023/01/10

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of the Criminal Code, information that may identify the person described in this decision as the complainant may not be published, broadcast or transmitted in any manner.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

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – CT Applicant

Counsel: Sheena MacDougall, for the Crown Emmett Brownscombe, for the Applicant

HEARD: November 14, 2022

REASONS FOR DECISION: APPLICATION TO EXCLUDE EVIDENCE

DELIVERED ORALLY DECEMBER 16, 2022

Justice L. Sheard

Introduction

1The applicant, CT (“Mr. T.”), is charged with sexual offences involving the children of his former partner that allegedly occurred between September 2015 and May 2020. The charges are brought under the following sections of the Criminal Code, R.S.C. 1985, c. C-46: s. 271 (sexual assault), s. 152 (sexual interference), and s. 151 (a) (invitation to sexual touching). The judge alone trial is scheduled to be heard by me and to begin on March 6, 2023. The children, “MO” and “JO”, are collectively referred to as the “Complainants” in these reasons.

2Mr. T. brings this application pursuant to s. 24(2) of the Charter¹ to exclude from evidence led by the Crown at trial the contents of certain Facebook messages downloaded from MO’s Facebook messenger account (the “FB Messages”).

3In his application, Mr. T. asserts that the messages were seized, without a warrant, by a detective with the Hamilton Police Service (“HPS”) in the course of her interview of MO. Mr. T. asserts that this warrantless search breached the privacy protections afforded to him by s. 8 of the Charter and that, as the admission of the FB Messages would bring the administration of justice into disrepute, they must be excluded pursuant to s. 24(2) of the Charter.

Overview of the Facts

4For the purposes of this application, the Crown agreed with the summary of facts outlined in Mr. T.’s Application Record. In addition, the Crown seeks to rely on certain additional facts. Set out below is a brief summary of the additional facts on which the Crown relies:

(i) Mr. T. began dating the Complainants’ mother in June 2013. MO was then 10 years old and began living with her grandmother at about this time. In 2014, Mr. T. and the Complainants’ mother had a child together. They continued to maintain their separate apartments, in the same apartment building;

(ii) At no time did MO and Mr. T. reside together;

(iii) The offences against MO are alleged to have occurred between September 2015 and May 2020, when MO was between the ages of 12 and 16. Throughout this time, MO lived with her grandmother. MO would visit her mother and siblings often, usually on the weekends. Mr. T. was normally present during these visits. MO rarely went into Mr. T.’s apartment;

(iv) Between September and December 2019, MO moved back in with her mother. At the time, Mr. T. was also staying with the Complainant’s mother but he returned to his own apartment after less than a couple of weeks; and

(v) The alleged assaults of MO were reported to HPS on April 22, 2020 by MO’s guardian. MO was interviewed by Det. M. Moore of the HPS on April 24, 2020.

5Set out below is an excerpt taken from the facts as agreed between the Crown and Mr. T.:

(i) In MO’s interview with Det. Moore, on April 24, 2020, MO reported that over a period of years, Mr. T. had digitally penetrated her and would sometimes provide her with alcohol before forcing her to perform oral sex on him or rub his penis. MO also discussed text messages sent to her by Mr. T.. MO indicated she had taken screenshots (on her phone) of a conversation she had with Mr. T. over Facebook Messenger, which led to the following exchange (excerpted from the transcript of Det. Moore’s interview of MO, at p. 36)²:

Det. Moore: Why did you screenshot?

MO: I found it on his old Facebook page, and I was like, okay, I can use this for evidence. I was looking for, basically every piece of proof that I could find but…

Det. Moore: What do you mean? What do you mean, you could use this for evidence?

MO: Like, I can use what he says as evidence that, towards whatever he’s done to me. I can prove to you that has happened.

Det. Moore: Okay.

MO: It just helps me, so you guys, you know….

Det. Moore: I couldn’t go through your phone, though, without a warrant. I would have to get a warrant to go through your phone…

MO: Mm-hmm.

Det. Moore: … and get the screenshots off your phone.

MO: Yeah, I can send them to you, though.

Det. Moore: I know, but it, it wouldn’t be – he has an expectation of privacy…

(ii) Det. Moore then left the interview room. While out of the room, MO searched her phone for the screenshots. When Det. Moore returned, MO stated that she had found the screenshots on her phone which detailed a conversation between Mr. T. and MO of April 28, 2019, in which Mr. T. encouraged MO to “experiment” with herself (the “Screenshot”). MO confirmed that the Screenshot was all she had on her phone;

(iii) Det. Moore suggested she might be able to download MO’s Facebook Messenger to look at the conversations between MO and Mr. T.. MO replied that she believed Mr. T.’s Facebook had been taken down, and while MO was looking at her phone, the following exchange took place:

MO: It says “Unavailable”. Hold on. I will find it. Oh, I do not have Wi-Fi. That is why it is not loading. Is there Wi-Fi out here?

Det. Moore: You know what we can do, we are able to go, I can put you on a computer here. And you can just bring up your Facebook account, because (indiscernible)…

MO: Okay.

Det. Moore: … Wi-Fi here…

MO: That works.

Det. Moore: … Okay, like the Internet here.

MO: That works.

Det. Moore: And you can tell me what that is, and I could download your Facebook info.

MO: Okay, go for it. I do not, I do not use Facebook, so you can have my Facebook.

Det. Moore: Okay.

MO: Do whatever you want.

(iv) Det. Moore asked MO about her phone, to which MO responded that she did not like other people knowing her thoughts and that her phone was “basically really” her personal life. MO also confirmed that apart from text messages when he was offering something to her or checking in, Mr. T. communicated with MO only on Facebook; and

(v) Det. Moore asked for MO’s consent to search her Facebook. MO signed the consent form authorizing the search and seizure of MO’s Facebook account, which was marked as Exhibit #1 on the application, and provided Det. Moore with her Facebook login details.

6Det. Moore gave evidence on this application.

7Det. Moore testified that, with MO’s consent in hand, at approximately 4:52 p.m., Det. Moore left the interview room to access MO’s Facebook Messenger account using the login details provided to her by MO.

8Det. Moore testified that she was unsuccessful in accessing MO’s Facebook Messenger account using the login information provided by MO. As the account had been archived, Det. Moore sought technical assistance from another detective with the HPS. She was still unsuccessful in accessing MO’s Facebook account.

9Det. Moore testified that she invited MO to sit down at an HPS computer so that MO could herself log into her Facebook Messenger account using a password different from that which she had provided to Det. Moore. MO was successful in accessing the account while Det. Moore was present, and from there, the archived messages between MO and Mr. T. were located.

10Det. Moore then downloaded the archived messages onto the HPS hard drive she had with her. Det. Moore later reviewed the total of 1031 pages of archived messages that she had downloaded. From these, Det. Moore extracted approximately 70 pages, excluding documents that she viewed to be irrelevant, such as parts of conversations she believed to be “innocuous”. These extracted pages comprise the FB Messenger report created by Det. Moore, which was marked as Exhibit #4 on this application.

11It is clear from Det. Moore’s evidence that she turned her mind to whether a warrant was required to obtain or to review the FB Messages. She determined that no warrant was required because she thought that Mr. T. did not have a reasonable expectation of privacy in the contents of conversations between him and MO on Facebook Messenger. Det. Moore testified that had she sought to search and obtain information from MO’s cell phone, a warrant would have been required.

12Det. Moore’s belief on whether a warrant was or was not required in this situation appears to be based on the following: that on a cell phone, there is a wide variety of platforms storing such things as photos, video clips, texts, etc., and even with the consent of the phone’s owner, a warrant is required because the cell phone’s owner cannot waive the privacy rights of others whose communications are on the cell phone.

13Det. Moore testified that in contrast to a cell phone, in which there could be multiple participants, the Facebook Messenger account consisted solely of an exchange between two people. Det. Moore concluded that Mr. T. would have no expectation of privacy concerning the messages that he sent to MO on Facebook Messenger and that no warrant was required to access it. However, had a third person appeared in the Facebook Messenger messages, Det. Moore testified that she would have obtained a warrant. Det. Moore also distinguished Facebook Messenger from a cell phone because Facebook Messenger could be accessed from any computer terminal. Det. Moore also considered the content of the FB Messages which, based on the Screenshot, were clearly between an adult and a child and were of a sexual nature which was “100% illegal”.

14In order to have a video recording about what had taken place outside of the interview room, at approximately 5:51 p.m., Det. Moore and MO returned to the interview room and resumed the video recording. That portion of the transcript begins at page 47 and reads, in part, as follows:

Det. Moore: … Interview was concluded. And I had some trouble – your Facebook account, you gave me a username and password. But then, when I went to go in it to grab that text, that screenshot – it was in the text. It was a screenshot of a Facebook Messenger…

MO: Mm-hmm.

Det. Moore: … Message…

MO: Yeah.

Det. Moore: …from [Mr. T.].

MO: Mm-hmm.

Det. Moore: So, when I went to go in, I could not get in. And I sat you down. I said “how do I get in here” and you typed in your email and your password. So what I did was…

15The transcript continues with MO asking for a copy of the messages that had been printed. MO was permitted to read what had been printed and was asked to sign and date the backs of three pages of “chats”. Copies of the printed pages were not provided to MO.

16At this hearing, Det. Moore explained that she transferred the 1031 pages of the Facebook Messenger chats onto a hard drive, which she gave to the Crown who inadvertently wiped it clean by reformatting the storage device. As a result, the HPS had to seek a second consent from MO to search the same Facebook messages. That consent was given, and the identical downloaded documents were obtained.

The Screenshot

17During her interview with Det. Moore, MO read out the contents of the Screenshot. Counsel for Mr. T. advised that Mr. T. takes no objection to the admission into evidence of the contents of the Screenshot, which are reproduced at pages 15 – 25 of Exhibit #4. Counsel for Mr. T. advised that his client makes no objection to the admission of this evidence because it was not obtained by the HPS through a warrantless search, nor as a result of a request from the HPS, nor obtained through action of the state. Rather, MO had brought the Screenshot with her to police.

18More will be said about this later in these reasons.

Issues Raised

19I address the issues as articulated in the Crown’s factum:

(1) Does the download of the FB Messages constitute a search or seizure within the meaning of s. 8 of the Charter?

(2) Does Mr. T. have standing to assert a breach of his s. 8 Charter rights? That is, has Mr. T. established that he had a reasonable expectation of privacy in the FB Messages?

(3) If Mr. T. does have standing, and a Charter breach is proven, should the FB Messages be excluded under s. 24(2) of the Charter?

The Law

Section 8 of the Charter

20Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure”. To claim s. 8 protection, an applicant must show that a state act amounted to a search or seizure that interfered with their reasonable expectation of privacy in the subject matter of the search or seizure: see R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at paras. 12, 36, 1.

21Whether a person has a reasonable expectation of privacy in the subject matter of the search must be assessed in the totality of the circumstances. In R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-11, the Supreme Court of Canada stated:

In considering the totality of the circumstances, four “lines of inquiry” guide the court’s analysis:

1. What was the subject matter of the alleged search?
2. Did the claimant have a direct interest in the subject matter?
3. Did the claimant have a subjective expectation of privacy in the subject matter?
4. If so, was the claimant’s subjective expectation of privacy objectively reasonable? [Citations omitted.] See also Mills, at para 13.

22In Mills, at para. 20, the court stated that in order to challenge an alleged search under s. 8, an applicant “must demonstrate the objective reasonableness of his claim to privacy – the assessment of which must have regard to the totality of the circumstances. This is not purely a descriptive question, but rather a normative question about when Canadians ought to expect privacy given the applicable considerations”.

23The Ontario Court of Appeal discussed the s. 8 analysis in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 39-42. Speaking for the court, Doherty J.A. stated, in part, as follows:

39When deciding whether state conduct amounts to a search or seizure, the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on the privacy interests of the s. 8 claimant. State conduct that, in the totality of the circumstances, infringes a claimant’s reasonable expectation of privacy will be treated as a search or seizure for the purposes of s. 8.

40The reasonable expectation of privacy inquiry is fact-sensitive and fact-specific. Different factors will carry different weight in different circumstances. …

41… The court must, in examining the relevant facts, make a determination that is not purely fact-driven, but is also reflective of fundamental societal values. A finding that a claimant has a reasonable expectation of privacy is not only a description of a specific constellation of factual considerations, but is also a declaration of societal aspirations and values.

42… Professor Stewart captures the inquiry well:

Put another way, the ultimate normative question is whether, in light of the impact of an investigative technique on privacy interests, it is right that the state should be able to use that technique without any legal authorization or judicial supervision. Does our conception of the proper relationship between the investigative branches of the state and the individual permit this technique without specific legal authorization? [Citations omitted.]

24Doherty J.A.’s approach was cited with approval in Karakatsanis J.’s concurring judgment in Mills, at para. 41.

25In Mills, Karakatsanis J. applied a different approach in dismissing the appellant’s claim than was taken by Brown J. in the majority decision. Karakatsanis J. held that s. 8 was not engaged because the police conduct did not amount to a search or seizure. At para. 36 of her reasons, she explained that “the police did not take anything from the accused or intrude upon a private conversation; the undercover officers simply received messages sent directly to them.”

26Karakatsanis J.’s reasons were recently interpreted and applied by the Ontario Court of Appeal in R. v. Campbell, 2022 ONCA 666. In that case, police seized incriminating text messages sent by the appellant to another alleged drug dealer’s phone which the police were using to impersonate the other dealer. The court determined that the police conduct—being “far more intrusive than merely inspecting a conversation between two other individuals”—did amount to a search or seizure and s. 8 was engaged: at para. 71, citing Mills, at para. 36.

27In light of the two approaches set out in Mills, the issue of whether an applicant has standing under s. 8 seems to be two-fold: (i) the intrusive conduct by the state must engage s. 8, and (ii) the applicant must demonstrate an objectively reasonable expectation of privacy in the subject matter of the search or seizure.

28If an applicant has established standing under s. 8, the analysis moves to an assessment of whether the search and seizure was reasonable: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 36. Since a warrantless search is presumptively unreasonable, the Crown bears the burden of demonstrating, on the balance of probabilities, that the search was authorized by a reasonable law and carried out in a reasonable manner: see R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at pp. 277-78; R. v. Dedman, [1985] 2 S.C.R. 2, at 35.

Exclusion of Evidence: the Grant Factors

29Where a search is found to be unreasonable, the evidence shall be excluded pursuant to s. 24(2) of the Charter if its admission would bring the administration of justice into disrepute. The Supreme Court in R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71, set out three lines of inquiry which guide courts in determining whether evidence obtained in violation of s. 8 rights must be excluded under s. 24(2):

1. The seriousness of the Charter-infringing state conduct;
2. The impact the conduct had on the Charter-protected interests of the applicant; and
3. Society’s interest in the adjudication of the case against the applicant on its merits.

30The first two factors tend to pull towards exclusion of the evidence, while the third pulls towards inclusion; as well, either of the first or second factor alone may be sufficiently strong to warrant exclusion: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R 692, at para. 41; R. v. McGuffie, 2016 ONCA 365, 355 C.R.R. (2d) 137, at paras. 62-63.

Analysis

Issue #1: Does the download of the FB Messages constitute a search or seizure within the meaning of s. 8 of the Charter?

31As mentioned above, Mr. T. takes no issue with the admission into evidence of the Screenshot.

32Mr. T. submits, however, that the download of the FB Messages by the HPS amounts to a search or seizure which engages s. 8.

33At paragraph 29 of Mr. T.’s factum, he submits that it was “obviously permissible” for Det. Moore to listen to MO’s description of the content of the Screenshot and to review the Screenshot taken by MO, without any direction from the HPS. However, there was no legal authority to permit Det. Moore to download and review the contents of other FB Messages without prior judicial authorization.

34In oral submissions, counsel for Mr. T. submitted that, with respect to the Screenshot, the police were simply passive recipients. However, as Det. Moore actively searched MO’s FB Messenger account and downloaded the balance of the conversation history, the FB Messages were obtained through a combination of MO’s private action and intrusive state action, thereby engaging s. 8.

35The Crown submits that at no time was MO acting as an agent for the state when the FB Messages were created. As such, there could be no assertion that the Charter applies until after the point at which MO contacted the HPS.

36It is undisputed that MO cooperated with the HPS by providing her login and password information. Ultimately, however, it was MO herself who accessed the FB Messages using an HPS computer and monitor.

37I find it difficult to reconcile the submission made by the applicant that it was “obviously permissible” for Det. Moore to listen to MO’s description of the FB Messages and to view the Screenshot with his position that it was not permissible, in the absence of a warrant or judicial authorization, for Det. Moore to view the FB Messages made available to her by MO once MO had accessed the FB Messenger account using an HPS computer.

38It is important to recall how the FB Messages came to the attention and possession of the HPS: the alleged offences committed by Mr. T. were reported to the HPS; MO, a subject of the sexual offences, personally and voluntarily attended at the HPS police station; MO voluntarily agreed to a videorecorded interview, the purpose of which was to allow MO to disclose to the HPS what had happened to her and to describe what she believed were offences committed by Mr. T.; and MO brought her cell phone with her, having earlier downloaded to it what, she believed, would be evidence, i.e. the Screenshot, to support her allegations against Mr. T..

39Not only did MO volunteer the Screenshot – the disclosure and use of which is not opposed by Mr. T. – but she also volunteered that there were, in essence, more FB Messages available from where the Screenshot had come from.

40Also, given the facts that MO sat at the computer, MO typed in her password, and MO logged into the Facebook Messenger account, it is difficult to draw a clear or bright line between when the information is being provided by MO – clearly not a state actor – and when the state (HPS) allegedly intervenes.

41Given those circumstances, it is difficult to characterize the conduct of Det. Moore or the HPS as clearly “intrusive”. It was MO, not the HPS, that produced, identified, and brought onto the screen the FB Messages.

42The facts in this case are distinguishable from those in Marakah. In Marakah, the police conducted a warrantless search of the phone taken from Mr. Marakah’s accomplice on which they found text messages that were incriminating to Mr. Marakah. In this case, it was MO who voluntarily identified and located the incriminating FB Messages sent to her by Mr. T. in order to show them to the HPS.

43Appellate courts have not yet dealt with the issue of whether s. 8 is engaged when a complainant turns over electronic communications exchanged with an alleged perpetrator. In Orlandis-Habsburgo, at para. 34, Doherty J.A stated, in obiter, that s. 8 would likely not be engaged when an independent third-party voluntarily brings evidence to the police:

I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.

44A number of trial decisions were provided by the Crown in which courts have found that s. 8 was not engaged when complainants voluntarily turned over electronic communications exchanged with the applicant: see R. v. Morgan, [2020] O.J. No. 2330 (O.C.J.); R. v. Amdurski #4, 2022 ONSC 1338; R. v. Estrella Llaneza, 2019 QCCQ 3012; R. v. Burke, 2021 QCCQ 3626.

45The reasoning of the court in Morgan is most helpful. In Morgan, a sexual assault complainant and her mother turned over their devices to police for them to download text messages exchanged with her alleged perpetrator. At paras. 29-34, Poland J. distinguished the cases involving clearly intrusive police conduct, such as Marakah, Reeves, and Cole, from the case before him in which he found that s. 8 was not engaged. Police did not “scour” the devices for relevant evidence—the devices were provided to them in order to “secure the electronic evidence that they had been directed to by the complainant”: at para. 20. In Morgan, not unlike the facts in this case respecting how the FB Messages came into the hands of the HPS, the state’s actions were limited to preserving a digital copy of data provided by the complainant and occurred “in reaction to [the complainant’s] initiative … after she had already told them about the contents of the messaging”: at para. 34.

46The facts were similar in R. v. Amdurski, in which incriminating text messages were discovered by a young victim’s mother on her daughter’s cell phone. The mother called police to whom she showed the texts. Molloy J. found that s. 8 did not apply. At para. 4, she distinguished Marakah, which was “clearly a state seizure”, from the facts in the case before her on which she found there to be no seizure by police because the text messages were voluntarily turned over to police by a concerned parent. Molloy J. cited Doherty J.’s obiter from Orlandis-Habsburgo, at para. 34, that “s. 8 would likely not be engaged if a whistleblower independently provided material to police”: at para. 23.

47In R. v. Burke, an accused sought the exclusion from evidence at trial of Facebook Messenger conversations exchanged with the complainant. There, as here, the accused asserted a breach of his s. 8 Charter rights and sought the exclusion of the evidence under s. 24(2).

48In Burke, as here, the Facebook messages were given by the complainant to the police in the course of its investigation. The court in Burke concluded that “neither the law nor Marakah forbids a party from disclosing to the police a conversation, of which she is a part” and that “the free and voluntary delivery of the Messenger conversations by the complainant was not an investigatory technique that constitutes a search or seizure”: at paras. 46-47. I agree with that conclusion and adopt that reasoning here.

Disposition of Issue #1:

49I accept the Crown’s submissions that how the FB Messages came into the hands of the HPS is critical to determining whether the downloading of the FB Messages constituted a search and seizure. Based on the evidence presented, I find that the FB Messages came from MO, a private citizen, who was lawfully entitled both to possess and to disclose the FB Messages. The facts in this case do not support a finding that the state (HPS) intruded upon or inserted themselves into a private conversation or that the HPS engaged in “clearly intrusive police conduct”. There is no evidence to support a finding that the HPS, relying on the complainant’s consent, “scoured” a device for relevant evidence or, in reality, conducted a search at all. MO volunteered that she had the evidence relevant to her allegation against Mr. T. and then provided that evidence to the HPS: she sat down at a computer, logged on to her account, and identified the messages. In her interview, MO told Det. Moore that she knew the FB Messages existed and that she wanted to provide them to HPS to support her claim of Mr. T.’s illegal conduct.

50I therefore conclude that s. 8 of the Charter is not engaged. My ruling on this issue is dispositive of the application. While I need go no further, nonetheless, I will address the other two issued raised.

Issue #2: Does Mr. T. have standing to assert a breach of a s. 8 Charter right, i.e., has Mr. T. established that he had a reasonable expectation of privacy in the FB Messages?

51A reasonable expectation of privacy in the subject matter of the search is a condition precedent to a claim of a s. 8 Charter breach. The onus is on the applicant to establish that expectation, failing which, he lacks standing to challenge the lawfulness of the alleged search: see Marakah, at para. 11.

52It is clear from Marakah that the sender of text messages may have a reasonable expectation of privacy in the sent text messages such as to give the person standing. However, the court also noted that not every communication occurring through an electronic medium will attract a reasonable expectation of privacy: at para. 55.

53The Crown agrees with the applicant’s assertion that the content of the FB Messenger conversation between Mr. T. and MO is the subject matter of the alleged search. The Crown also agrees with Mr. T. that he has a direct interest in the FB Messages as the author.

54The second stage of this inquiry is an analysis of whether Mr. T. has a subjective expectation of privacy in the messages.

55The Crown acknowledges that Mr. T. may choose not to lead evidence concerning his subjective expectation of privacy in the FB Messages, a low bar to meet, which might violate his right to silence.

56Without conceding that Mr. T. has established that he has a subjective expectation of privacy in the content of the FB Messages, the Crown acknowledges that such an inference is available to the court. I accept that this is a reasonable inference to be drawn.

57Mr. T. submits that the court’s inquiry into whether his expectation of privacy was objectively reasonable must include a “normative consideration of societal aspirations and values.” In part, Mr. T. submits that the court ought to consider the relationship between Mr. T. and MO which, he submits, is a “quasi-parental relationship”.

58On the record before me, the evidence of Mr. T.’s relationship with MO is superficial and incomplete. For example, while MO describes Mr. T. as her stepfather in her interview with Det. Moore, the evidence is that Mr. T. neither lived with MO’s mother – except for a period of less than two weeks – nor with MO. There is no evidence before me as to whether or not Mr. T. was married to MO’s mother or, indeed, whether he could be defined as the spouse of MO’s mother.

59As stated earlier in these reasons, Mills, at para 20 directs the court to determine objective reasonableness having regard to the totality of the circumstances. In Mills, the court noted that the accused had no relationship at all with the recipient of the messages who the accused believed was a child and a stranger to him. At para. 23, the court stated: “on the normative standard of expectation of privacy … adults cannot reasonably expect privacy online with children they do not know”.

60Mr. T. asks this court to consider how the Crown has described him, that is, as a step-parent, and that, given that relationship, Mr. T.’s subjective expectation of privacy in the FB Messages he sent was objectively reasonable.

61Mr. T. asserts that care must be taken not to consider the incriminating nature of the content of the FB Messages to conclude that an expectation that the messages would be kept private was not objectively reasonable. However, he also asks the court to consider the innocuous portions of the FB Messages (included in the 1031 pages that were downloaded) and the testimony of Det. Moore, who agreed that the portions of the messages excluded from Exhibit #4 consisted of the usual type of communication between a child and step-parent.

62Thus far, I have said little about the content of the FB Messages and the Screenshot. For the purposes of these reasons, it is sufficient to note that the FB Messages contained in Exhibit #4 are of a sexual nature. Mr. T. submits that it is inappropriate to consider the incriminating nature of the content of the FB Messages – the fruit of the poisoned tree – when determining whether his subjective expectation of privacy in the content of the FB Messages is objectively reasonable. I accept that submission. However, the admissibility of the Screenshot is not disputed and, in my view, its contents may be considered on this application. The Screenshot contains an explicit sexual communication—an entirely inappropriate communication between any adult and a child, let alone between an alleged step-parent and step-child.

63There is no issue that Mr. T. had an intimate relationship with MO’s mother with whom he fathered a child, MO’s half-sibling. It is also not in issue that Mr. T. was known to MO and that he had a relationship with her, by virtue of his relationship with MO’s mother. However, I am not able to conclude that Mr. T. was in a parental or quasi-parental role. Even if I were to find that Mr. T. could be labelled as a step-parent, a consideration of the totality of the admissible evidence, including the Screenshot, might also attract the label of “predator” for Mr. T., as suggested by the Crown.

64Based on the totality of the evidence, I am unable to find that Mr. T. was in a parental or quasi-parental relationship with MO. Moreover, in applying the normative approach foundational to the s. 8 privacy analysis, I find that this particular adult-child relationship is not one worthy of s. 8 protection. As Brown J. explained in Mills, para. 26:

… [w]hile I have said that many adult-child relationships are also worthy of s. 8 protection—the relationship between Mills and “Leann” is not one of them, if expectations of privacy are to reflect a normative (rather than a purely descriptive) standard. The conclusion may or may not apply to other types of relationships, depending on the nature of the relationship in question and the circumstances surrounding it at the time of the alleged search.

65As in Morgan and Amdurski, MO’s relationship with Mr. T. at the time of the alleged search or seizure was more akin to an exploitative relationship between a vulnerable person and an adult abusing his position as a person of authority. A normative understanding of privacy in this case considers society’s vital interest in protecting children from online sexual exploitation: see Mills, at para. 23.

66Further, and in the s. 8 context, Bawden J. stated in R. v. Patterson, 2018 ONSC 4467, at para. 13³:

… I find that [the applicant] has no direct interest in … the text messages which he sent to the victim. Those messages constitute the actus reus of the offence of child luring. The constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences.

67Thus, despite the potential that the content of the FB Messages might reveal personal information about Mr. T., in considering the totality of the circumstances, I find that Mr. T.’s subjective expectation of privacy was not objectively reasonable.

Was the search or seizure unreasonable?

68If I have erred in my finding on the issue of standing, I find that the search or seizure was nevertheless reasonable because MO gave valid and unequivocal consent.

69Mr. T. submits that MO’s consent for the police to download and review the Facebook conversations does not nullify his reasonable expectation of privacy in those messages. As the Supreme Court established in R. v. Reeves, 2018 SCC 56, [2018] S.C.J. No. 56, at paras. 50-58, his s. 8 protection cannot be waived by a third party.

70Reeves, however, is distinguishable on its facts. In Reeves, the applicant’s spouse consented to the search and seizure of a home computer on which police discovered child pornography. Moreover, in Reeves, the court was careful to distinguish the situation before it from one in which a private citizen “offers” (emphasis in original) information to the police in which another person may have a reasonable expectation of privacy: at para. 46.

71Accordingly, even if I had found that Mr. T. had standing under s. 8, I would have dismissed his application at this stage.

Disposition of Issue #2:

72For all the reasons given, I find that the police conduct in this case did not engage s. 8 nor did Mr. T. have an objectively reasonable expectation of privacy in the FB Messages. Therefore, Mr. T. lacks standing to bring a s. 8 claim and, in addition to dismissing his application for the reasons already set out, I would also dismiss his application on these bases.

Issue #3: If Mr. T. does have standing, and a Charter breach is proven, should the FB Messages be excluded under s. 24(2) of the Charter?

73Notwithstanding my disposition of Mr. T.’s application, I have also considered the third issue of whether, had Mr. T. established a Charter breach, the FB Messages should be excluded from the evidence at trial pursuant to the provisions of s. 24(2) of the Charter.

74Mr. T. submits that the seriousness of the breach and the impact upon his privacy interests favour the exclusion of the evidence. He asserts that Det. Moore was ignorant of well-established Charter standards, and consequently, was not acting in good faith—the fact of which might otherwise reduce the seriousness of the breach.

75Mr. T. also submits that courts have repeatedly recognized that a Charter breach in the context of electronic conversations has a highly intrusive impact upon a claimant’s privacy interest and that, although the third Grant factor often militates towards inclusion of evidence where the charges are serious, in this case, the FB Messages are circumstantial evidence only and the Crown can still rely upon the testimony of the complainant; excluding the FB Messages would not “gut” the Crown’s case.

76As noted earlier, Det. Moore did not ignore Mr. T.’s Charter rights; she did, in fact, identify that Mr. T. would have an expectation of privacy with respect to any communications that might have been stored on MO’s cell phone. Given the rapidly evolving jurisprudence on this issue, Det. Moore’s determination that the same privacy interests did not exist with respect to the FB Messages cannot be viewed as bad faith or made in ignorance of well-known Charter principles.

77The Crown asks the court to consider that the evidence would otherwise have been discoverable, since a warrant would most likely have been obtained and, most persuasively, that MO is free to testify about the FB Messages at trial.

78The Crown submits that the seriousness of the breach by Det. Moore (or the HPS), if any, lies on the lower end of the spectrum. Det. Moore turned her mind to Mr. T.’s privacy interests and, even if she was mistaken, she did not intentionally or knowingly disregard his rights. I agree.

Disposition of Issue #3:

79For all the foregoing reasons, I conclude that all the Grant factors pull towards inclusion of the evidence that is the subject of this application. Therefore, even if I had found that Mr. T. had standing under s. 8 and that his Charter-protected rights had been violated, I would still permit the admission of FB Messages into evidence at trial.

ORDER MADE:

80The Application is dismissed in its entirety.

L. Sheard, J.

Footnotes

1. 1Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11.
2. 2Both the videorecording of the interview and a written transcript of it were put into evidence on this application.
3. 3As cited in R. v. Bear-Knight, 2021 SKQB 258, at para. 33.