R. v. Z.E., 2025 ONSC 675
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Z.E.
Defendant
M. Wlodarczyk, for the Crown
G. Clark, for the Defendant
HEARD: September 18, 2024
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.
CORRECTED
REASONS FOR DECISION UNDER SECTION 8 OF THE CHARTER
Corrections are listed on page 16
Ellies j.
OVERVIEW
1The accused faces four criminal charges relating to a single complainant with whom he had an intimate relationship for a little over a year between December 2019 and January 2021. The charges include sexual assault with a weapon, making a surreptitious visual recording (voyeurism), and distributing an intimate image without consent.
2In this pre-trial application, the accused seeks to exclude photographs of text messages exchanged between the accused and the complainant that were taken by the police from the complainant's cell phone with her consent. The accused submits that, by taking the photos, the police violated his right to remain free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms and that the photos should, therefore, be excluded under s. 24(2) of the Charter.
3In an endorsement dated November 5, 2024, I advised the parties that the application was dismissed, for reasons to follow. These are my reasons.
BACKGROUND FACTS
4The complainant and the accused met while they were attending university and began dating in 2019. They moved in together in or about September 2020 and separated in January 2021.
5At some point during their relationship, the accused took photos of the complainant with certain objects inserted into her vagina, including a shampoo bottle and a de-edged knife. The Crown alleges that the objects were inserted by the accused and the photos taken while the complainant was incapacitated by sleeping pills and, thus, without the complainant’s consent. The Crown also alleges that the accused sent a photo of the inserted shampoo bottle to a friend, T.F., again without the complainant’s consent. According to the Crown, the photos were taken sometime between May and July 2020. Finally, the Crown alleges that, about three or four months later, the accused held a knife to the complainant’s throat while trying to be intimate with her, thereby committing an assault with a weapon.
6After her relationship with the accused ended, the complainant attended the North Bay Police Service headquarters to provide the police with a statement about the alleged offences. In her statement of January 25, 2021, she told the police that she and the accused remained friends for a period of time following their breakup. She told them that she had some text messages from June and July 2020 that she felt were important, and referred to some texts that had been exchanged with the accused within a few days of attending the police headquarters.
7At one point during the interview, the following exchange took place between the complainant and the interviewing police officer:
COMPLAINANT: So yeah, anyways, we were talking and stuff and I was trying to be forgiving and saying I can’t be with you but maybe we can be friends later on, like I know your sorry and stuff. And then I was talking to my sister, and then I started realizing, started memories coming back, and then I texted him and I said “hey I need to talk to you about something” because I remembered and this was
never talked about like properly and I texted him and I said “you raped me” and (…) this was a few days ago, like last week. Umm and what he said to that was, he was like “I understand why you feel that way.” He’s not stupid, he’s taken police foundations, and he’s a smart guy, understands legal whatever and ahh he was saying “I understand why you feel that way, I’m really sorry I won’t ever hurt
anyone ever again”, and he even says, “do you want me arrested?”
OFFICER: Do you have that in text messages?
COMPLAINANT: Yeah. (Complainant reaches for her phone in her purse.) He even says “do you want me arrested” and then he says “if you want me punished or want to get revenge” he says “then just please give me some time to sort things out with my kid and my mom, who is dying of cancer.” Ah I have the text here.
8A short while later, the officer sought and obtained the complainant’s permission to have a forensic identification officer take photographs of the texts that are the subject of this application.
9No warrant was ever obtained by the police regarding the texts on the complainant’s cell phone. However, the police did later apply for a warrant to seize and search the accused’s cell phone. I am told that the search yielded no evidence.
POSITIONS OF THE PARTIES
10The accused submits that he had a reasonable expectation of privacy in the text messages on the complainant’s phone and that the actions of the police constituted an unreasonable search and seizure. He contends that the texts should be excluded as evidence under s. 24(2) of the Charter because of the very serious breach of his right to be free from unreasonable search and seizure under s. 8 of the Charter, the impact the breach had on him, and the effect that admitting the text messages would have on the administration of justice.
11The Crown resists the application on the basis that there was neither a search nor a seizure because the complainant voluntarily brought the texts to the attention of the police. In the alternative, the Crown submits that any search or seizure was lawful because of the complainant’s consent and was, therefore, reasonable. In the further alternative, the Crown submits that, if the search or seizure was unreasonable, the text messages so obtained should not be excluded under s. 24(2).
ISSUES
12Based on the positions of the parties, there are three issues to be decided in this application:
Was there a search or seizure?
If so, was the search or seizure unreasonable?
If so, should the photographs of the texts be excluded as evidence under s. 24(2) of the Charter?
13I will address each of these issues in turn.
ANALYSIS
Was there a search or seizure?
14Section 8 of the Charter provides that:
Everyone has the right to be secure against unreasonable search or seizure.
15The Crown submits that there was neither a search nor a seizure in this case because the complainant brought the texts to the attention of the police. Therefore, the Crown contends, s. 8 is not engaged. As I will explain, I am unable to agree with this submission as it relates to one group of texts.
16I begin by observing that there is no binding authority from the Supreme Court of Canada with respect to whether s. 8 is engaged where the police merely receive information provided lawfully by a third party without police complicity. Indeed, in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 46, the Supreme Court held that the “issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy” did not arise in that case and, therefore, “remains for another day” [emphasis in original].
17The Crown relies on several trial decisions in which it has been held that no search or seizure occurs where the police passively receive information from a third party who is lawfully entitled to both possess and disclose the information: see R. v. Ilmi, 2023 ONSC 5602, at para. 9; R. v. CT, 2023 ONSC 286, at paras. 49-50; R. v. Amdurski #4, 2022 ONSC 1338, at para. 43; R. v. Morgan, [2020] O.J. No. 2330 (C.J.), at para. 43. In these cases, the court began its analysis of the s. 8 issue by first asking whether there had been a search or a seizure and then asking whether the claimant had standing to challenge it.
18In all these cases, the courts referred to the following comments of Doherty J.A., writing for the Ontario Court of Appeal in R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 34:
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.
19Had these comments by Doherty J.A. been necessary in arriving at the decision he did in Orlando-Habsburgo, my task in deciding this application would have been an easy one. Had that been the case, I am certain that Doherty J.A. would have explained with his usual clarity how s. 8 would not have been engaged based on the existing jurisprudence. However, these comments, although they were made by one of Canada’s most respected criminal law jurists, were merely obiter, meaning they were not required to decide the case.
20In Orlandis-Habsburgo, an electricity supplier had provided information to the police about energy consumption at a residence that led to the discovery of a marijuana grow-op and charges against the accused individuals under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Doherty J.A. held, at para. 35, that he did not need to decide whether the claimant’s s. 8 rights were engaged in the “whistleblower” circumstances he referred to in his reasons because the supplier and the police had been acting together. Therefore, it could not be said that the supplier had independently volunteered the energy consumption information to the police. As a result, Doherty J.A.’s comments are not binding on lower courts, and I must look elsewhere for such authority. I believe I may have found it. Before I get to that, however, I will address one submission made on behalf of the accused about the similarity of the circumstances in this case to those in Orlando-Habsburgo.
21On behalf of the accused, counsel submits that, like the situation in Orlando-Habsburgo, the complainant in this case was a state actor who was gathering evidence using the text conversation with the accused. I am not persuaded that this is so.
22In what I find to be a rather disturbing trend in our jurisdiction, I have not been provided with the actual evidence I am being asked to exclude in this application. Instead, I am forced to rely on counsel’s description of it, which may or may not be accurate. The Crown disputes the accused’s assertion that the complainant was gathering evidence. In these circumstances, I am not in a position to make a finding. Therefore, I have approached the rest of my analysis on the basis that the complainant was not acting as a de facto state agent but, rather, brought the texts to the attention of the police as an independent third party. I continue that analysis now.
23While there is still no binding Supreme Court authority dealing directly with the fact scenario referred to in Reeves, there is what I consider to be at least persuasive, if not binding, authority from the Ontario Court of Appeal. In the recent case of R. v. Lambert, 2023 ONCA 689, the accused’s wife took computers that she and her husband shared to the police on two occasions because she suspected that the accused had used them to access child pornography. She also sent the police screen shots she had taken from the second computer. The police did not examine the computers until warrants were obtained permitting them to do so. The examinations led to charges against the accused of accessing child pornography. At trial, the accused argued, among other things, that the police had unreasonably seized the computers by accepting them. The trial judge held that s. 8 was not engaged because the accused’s wife had voluntarily brought the computers to the police. The accused was convicted and appealed. Writing on behalf of the Court of Appeal, at para. 66, Paciocco J.A. rejected the Crown’s argument that “the passive acquisition of the computers” by the police did not constitute a search or a seizure.
24Justice Paciocco began his analysis in Lambert by clarifying that there are three separate inquiries to be made when determining whether there has been a search or seizure. At para. 48, he wrote the following:
For analytical clarity, there are three distinct components in determining whether a “search or seizure” occurred within the meaning of s. 8: (1) did the Charter claimant have a reasonable expectation of privacy in the subject of the alleged search or seizure; (2) was the impugned act a “search or seizure”; and (3) did the impugned act involve the state action required to constitute a search or seizure within the meaning of s. 8?
25In my respectful view, this is the proper way to approach the issue in this case. Beginning with the question of whether a claimant has a reasonable expectation of privacy in the subject of the alleged search or seizure, rather than with the nature of the state conduct, as my colleagues did in the cases relied upon by the Crown, is more in keeping with the robust body of jurisprudence developed by the Supreme Court of Canada under s. 8: see R. v. Campbell, 2024 SCC 42, at para. 34; R. v. Bykovets, 2024 SCC 6, at para. 30; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 12; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 11; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10 and 12; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 35-36; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18. As Cory J. wrote on behalf of the Supreme Court in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 33:
It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must be made without reference to the conduct of the police during the impugned search. There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy…Usually, the conduct of the police will only be relevant when consideration is given to this second stage. [Citation omitted].
26For this reason, I propose to address the accused’s reasonable expectations in the texts at issue before turning to the remaining two issues referred to by Paciocco J.A., both of which focus on the conduct of the police.
Did the accused have a reasonable expectation of privacy in the subject of the alleged search or seizure?
27Whether a claimant has a reasonable expectation of privacy must be assessed in the totality of the circumstances: see Edwards, at paras. 31 and 45; Tessling, at para. 32; Cole, at para. 40. This assessment involves four lines of inquiry:
(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?
28All four lines of inquiry must be made in this case.
The Subject Matter of the Search
29In Marakah, at paras. 20 and 111, the Supreme Court made it clear that the subject matter of a search or seizure of a string of text messages on a cell phone is not the phone itself but, rather, the conversation manifested in the messages. The remaining areas of inquiry center on that conversation.
The Accused’s Interest in the Texts
30It is beyond dispute at this point in the development of our jurisprudence under s. 8 that a participant in a text conversation will have a direct interest in that conversation: see Campbell, at para. 44; Marakah, at paras. 21 and 103; and Jones, at para. 15.
The Accused’s Subjective Expectation of Privacy in the Texts
31The requirement that a claimant establish a subjective expectation of privacy is not “a high hurdle”: see R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37; Jones, at para. 20; Marakah, at para. 22. The evidentiary foundation required is a “modest” one: see Campbell, at para. 45; Jones, at para. 21.
32To the extent that the claimant’s subjective expectation can be presumed or inferred from the circumstances of the case, the law has not required an accused to assume the risks of testifying to prove he subjectively expected privacy in the subject matter of the search: see Jones, at para. 22; R. v. El-Azrak, 2023 ONCA 440, at para. 60. Courts have presumed a claimant's subjective expectation of privacy in text messages even when the messages relate to illegal activity: see R. v. Knelsen, 2024 ONCA 501, at para. 37; Campbell, at para. 46; Jones, at para. 34.
33However, not every exchange of texts will give rise to an interest protected by s. 8 of the Charter: see Marakah, at para 5. What matters is the information contained in the texts: see Spencer, at para. 50; Patrick, at paras. 30-31. When considering this factor, the focus is not on the actual contents of the messages, but rather on the potential of a given electronic conversation to reveal personal or biographical information about the applicant: see Marakah, at para. 32.
34In this case, there were two groups of text messages. The first is comprised of messages exchanged between the accused and the complainant while they were involved in a romantic relationship. The second is comprised of messages that were sent after the relationship ended. Counsel for the accused submits that his client had a subjective expectation of privacy with respect to both groups of texts. While I agree with his submission with respect to the first group, I am unable to agree with his submission with respect to the second.
35The Crown does not dispute that the accused and the complainant were romantically involved from the time they began dating in 2019 until they separated in January 2021. With respect to the texts exchanged between the complainant and the accused during that period, I am prepared to accept that the accused had a subjective expectation of privacy in those circumstances even without seeing the texts themselves.
36However, I am unable to reach the same conclusion with respect to the texts exchanged after the relationship ended. As indicated in the excerpt from the transcript of the complainant’s interview by the police, after the parties separated, the complainant texted the accused that he had “raped” her. The accused responded that he could understand why she felt that way and asked her if she wanted him arrested. It is hard to infer from that conversation that the accused had a subjective belief that the complainant would keep the texts private.
37Counsel for the accused states in his factum that the complainant “repeatedly made comments suggesting that she would keep her allegations (and therefore the communications) private.” However, without seeing the actual texts themselves, I am unable to make that determination. Therefore, I am unable to conclude that the accused had a subjective expectation of privacy in the texts exchanged after the relationship between the accused and the complainant ended.
The Objective Reasonableness of the Accused’s Subjective Expectation
38Even if I was able to reach a conclusion regarding the accused’s subjective expectation of privacy in the texts exchanged after the breakup without seeing the texts themselves, I would not be able to conclude that his subjective belief was objectively reasonable.
39In determining whether a subjective expectation of privacy is objectively reasonable, the court must employ an approach that is both normative and content-neutral: see Campbell, at para. 47. It is important to understand, however, that while the inquiry must be content-neutral, it is not context-neutral. Indeed, with respect to the objective reasonableness of a claimant’s subjective expectation of privacy, context is all-important. That context includes the nature of the relationship between the parties to a text conversation: see Knelsen, at paras. 5152; Mills, at paras. 2426; R. v. K.A. and A.S.A., 2022 ONSC 1241, at para. 37; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293.
40A normative, as opposed to a descriptive, analysis requires the court to make a value judgment about “whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement”: see Canada (Director of Investigation & Research Combines Investigation Branch) v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (Hunter v. Southam), at pp. 15960. Put another way, the question is “whether, in light of the impact of the investigative technique on privacy interests, it is right that the state should be able to use the technique without any legal authorization or judicial supervision”: see Mills, at para. 59, quoting H. Stewart, “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335, at p. 342.
41The Crown does not appear to dispute the submission made on behalf of the accused that he had an objectively reasonable expectation of privacy in the texts exchanged with the complainant while they were involved romantically. However, the Crown does dispute the objective reasonableness of any expectation of privacy on the part of the accused in the texts exchanged after the breakup. Again, without seeing the actual texts themselves, it is difficult to conclude that, in those circumstances, it would be objectively reasonable for the accused to believe that his messages would be kept private. Based on the excerpts from the complainant’s interview, it is more likely that the accused could not have had an objectively reasonable expectation of privacy.
42For these reasons, while I am able to conclude that the accused had a reasonable expectation of privacy in the text messages exchanged while he was involved romantically with the complainant based solely on the state of their relationship at the time, I am unable to conclude that the accused had either a subjective expectation of privacy in the text messages exchanged after the breakup of his relationship with the complainant, or that such an expectation was objectively reasonable.
Was the impugned act a “search or seizure”?
43In Lambert, there was no issue that the accused had a reasonable expectation of privacy in the computers in question. The remaining two issues of Paciocco J.A.’s analytical framework required the court to focus on the conduct of the police. The Crown in Lambert made arguments in that case similar to the ones being made in this case about the effect of a finding that the accused's s. 8 rights had been breached. Like many of the cases referred to above, at para. 55 of his reasons in Lambert, Paciocco J.A. referred to the comments of Doherty J.A. in Orlandis-Habsburgo, at para. 34. However, Paciocco J.A. then wrote the following, at para. 56 of Lambert:
I, too, share the concern that s. 8 must not operate to frustrate reasonable investigative steps but, in my view, the solution does not depend on interpreting “seizure” narrowly, or taking an artificial view of what state action entails, which, with respect, I think the Crown position before us proposes. In my view, there are several more doctrinally sound and effective gatekeeping mechanisms available to ameliorate the general mischief that the Crown invoked in its submissions before us. First, in many cases the Charter will not be triggered because the Charter claimant will lack the requisite reasonable expectation of privacy in the item seized. Second, even where a reasonable expectation of privacy exists, the seizure may be lawful without a warrant pursuant to ss. 489(2) or 487.11 of the Criminal Code, and therefore Charter compliant. Third, even where the seizure does contravene the Charter, it may not bring the administration of justice into disrepute to admit the unconstitutionally seized evidence.
44Justice Paciocco went on to provide examples of cases in which each of the different “gatekeeping mechanisms” had been employed, including some of the cases referred to earlier such as Amdurski #4, in which the trial judge also excluded the texts in question on the basis that the texts were used as the means of committing the offence: Amdurski #4, at para. 40; Lambert, at para. 60. After reviewing these cases, Paciocco J.A. wrote, at para. 65:
In light of this, I am not persuaded that policy concerns require imposing a narrow meaning on the term “seizure” in s. 8 or necessitate imposing the restricted view of state action that the Crown argues for. Nor am I persuaded that doing so is consistent with the principle, the authority, or the language of s. 8.
45As Paciocco J.A. reminded us in Lambert, the terms “search” and “seizure” have been defined very broadly. At para. 68, he wrote:
In Cole, at para. 34, Fish J. offered simple definitions of a “search” and a “seizure”. He said, for the majority, that “[a]n inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”. Describing a seizure as a “taking” is consistent with the definition of seizure that was adopted in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 431, where La Forest J. said, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent”. In defining “seizure” in this way, I do not understand La Forest J. to be saying that the police must initiate the taking.
46Justice Paciocco concluded, at para. 70, that “the term ‘seizure’ is not being interpreted purposively if it is confined to initiated acts of police taking.”
47In my view, the police conduct of looking at the texts constituted an inspection and, therefore, conduct capable of being a search: see Campbell, at paras. 34 and 174; Marakah, at para. 103 (per Moldaver J., dissenting, but not on this point). It is also arguable that, by photographing the texts, the police conduct was also capable of constituting a seizure: see R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 48. At a minimum, photographing the texts was conduct capable of constituting a search. It is not necessary to decide whether the conduct also amounted to a seizure.
48For these reasons, the second of the three questions set out by Paciocco J.A. at para. 48 of Lambert must be answered in the affirmative.
49I turn now to the last question to be answered in determining whether there has been a search or seizure.
Did the impugned act involve the required state action to constitute a search or seizure?
50In my view, this is the central issue in this case. Based on the decision in Lambert, I believe that the police conduct in this case was sufficient to constitute a search or seizure.
51It is arguable that Lambert is distinguishable on its facts from the present case. In Lambert, the police accepted the actual device in which the impugned information was contained. Paciocco J.A. held, at para. 67, that “[b]y accepting the computers, the police actively took and exercised control over them to the exclusion of” the accused. That is not the case here. The police did not take control over the complainant’s phone.
52However, as I mentioned earlier, the subject matter of the search in a case like this is not the device on which the messages were received, but the conversation itself: see Marakah, at paras. 20 and 111. Similarly, as Paciocco J.A. recognized in Lambert, at para. 49, the police in that case were not after the computers themselves, but the data they contained. By seizing the computers, the police seized the data contained in them. I find it hard to distinguish what the police did in this case by photographing the texts from what the police did in Lambert by seizing the computers. In either case, they preserved the subject matter of the search, to the exclusion of the accused.
53For that reason, I conclude that the act of photographing the texts was sufficient to constitute a seizure as it relates to the post-relationship texts. Even if I am wrong in that conclusion, by photographing the texts, the police were unquestionably inspecting them, either then or at a later date. That act constituted a search.
Was the search or seizure unreasonable?
54The search of the texts was a warrantless one. Therefore, the onus of demonstrating that it was reasonable lies with the Crown: see Reeves, at para. 14; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. As the Supreme Court held in Collins, at p. 278, a search will be reasonable where it is authorized by law, where the law itself is reasonable, and where it was carried out in a reasonable manner. The Crown submits that the search was reasonable because the complainant gave an informed consent. Again, I am unable to agree.
55In support of its submission that the complainant’s consent made the search or seizure reasonable, the Crown relies on the same cases upon which it relied in support of its submission that s. 8 was not engaged in the first place. In K.A. and A.S.A., at para. 75, Amdurski #4, at para. 81, and CT, at para. 68, the courts all held that, if s. 8 was engaged at all, the search or seizure was lawful because the complainant validly consented to it. In my respectful view, that conclusion was not open to the courts in those cases.
56Our Supreme Court long ago rejected the “risk analysis” underlying the American doctrine of third-party consent as a justification for a warrantless search and has consistently done so ever since: see Reeves, at paras. 50-52. In Cole, writing on behalf of the majority, at para. 79, Fish J. flatly rejected “the Crown’s contention that a third party could validly consent to a search or otherwise waive a constitutional protection on behalf of another.”
57The only case relied upon by the Crown in which the court addressed this line of Supreme Court jurisprudence is CT. In that case, the trial judge distinguished Reeves on the basis that it was restricted to a situation in which the claimant’s spouse consented to the search and seizure and not one in which a private citizen “offers” information to the police in which another person may have a reasonable expectation of privacy: CT, at para. 70; Reeves, at para. 46.
58With great respect for my colleague in CT, I am unable to see the distinction. It seems to me that the spouse of the accused in Reeves was “offering” the information contained in the computer in the same way that the complainant in CT was offering the police the information contained in her Facebook account and in the same way as the complainant in this case was offering the police access to the information contained in her phone. I fail to see how the facts in either CT or this case make the search lawful based on the consent of a third party.
59For this reason, I find that the search and seizure of the texts exchanged during the parties’ relationship was unlawful and, therefore, unreasonable. Likewise, had there been a search or seizure of the post-relationship texts, it would also have been unreasonable.
Should the evidence be excluded under s. 24(2) of the Charter?
60For the reasons expressed above, I have concluded that there was a breach of the accused’s rights under s. 8 of the Charter with respect to the text messages that were exchanged between the accused and the complainant while they were in a romantic relationship and that there was no breach with respect to the texts exchanged after the relationship ended.
61Strictly speaking, I need not consider whether the post-relationship texts should be excluded under s. 24(2) of the Charter because they were not obtained in a manner that infringed the accused’s rights under the Charter. However, in the event that I am wrong, I will consider whether those texts should be excluded at the same time as I consider whether the texts exchanged during the relationship should be excluded. This is not difficult to do, as both groups of texts came to be photographed in the same way.
62Section 24 of the Charter provides:
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
63The onus under s. 24(2) is on the accused: see Collins, at p. 280. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court held that the analysis under s. 24(2) requires a court to determine the admissibility of unconstitutionally obtained evidence by considering three “avenues of inquiry”:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and
(3) society’s interest in the adjudication of the case on its merits.
64I will begin by examining the seriousness of the breach.
Seriousness of the Charter-infringing Conduct
65As the Supreme Court reiterated in Marakah, the court’s task in considering the seriousness of the state’s Charter-infringing conduct is to situate it on a scale of culpability, with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter rights” at the other: see Marakah, at para. 61. In my view, the Charter-infringing conduct in this case lies at the inadvertent end of the spectrum.
66On behalf of the accused, counsel contends that the breach here resulted from a “disregard” for the accused’s Charter rights. He relies on the fact that the police later sought a warrant to search the accused’s phone without disclosing that they had already taken photos of the texts exchanged between the parties from the complainant’s phone. I am unable to see how this failure assists the accused.
67I accept that the police must make full and frank disclosure when applying for a warrant: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 44. However, this is not an application to exclude evidence obtained from the accused’s phone. As I mentioned earlier, I am told that no inculpatory evidence was found on that phone once the warrant was executed. Therefore, for this evidence relating to the accused's phone to assist the accused with respect to the evidence obtained from the complainant's phone, I must be satisfied that the failure of the police to make full and frank disclosure was part of a pattern of behaviour by virtue of which the police acted in disregard of the accused’s Charter rights. That is not possible in the circumstances of this case.
68As the jurisprudence referred to above amply illustrates, at the time the police applied for the warrant to search the accused's phone, the conduct of the police in photographing the contents of the complainant's phone had been held to be Charter-compliant. Indeed, the law in this area is still unclear: see Lambert, at para. 102. I fail to see how one can infer a past intent to disregard the accused's rights from future conduct in those circumstances. The state of the law at the time the photos were taken makes it impossible to draw such an inference.
69For this reason, the result of this line of inquiry weighs against exclusion.
Impact of the Charter-infringing Conduct on the Accused’s Charter-protected Interests
[70] Marakah is instructive not only with respect to the scope of the s. 8 Charter right in the context of text messaging, but also with respect to the analysis to be conducted under s. 24(2) in that context. The Supreme Court held at para. 67 of Marakah that the effect of the unreasonable search on the accused’s rights under s. 8 “was not just substantial; it was total”. As the majority wrote, at para. 68:
It cannot be that the impact on an accused’s Charter-protected interests is less serious when an electronic conversation is illegally accessed through someone else’s phone than when the same conversation ‒ in which the accused has the same Charter-protected interest ‒ is illegally accessed through the accused’s own phone. A search may impact other, different Charter-protected interests of the accused if it is his phone that is examined. But, so far as the impact on the accused’s privacy interest in the electronic conversation is concerned, the two scenarios just described are indistinguishable.
71However, the present case is distinguishable from Marakah. In Marakah, the state sought to use text messages that had been unlawfully seized from the accused’s phone and that of the third party as evidence of illegal transactions in firearms. There was no indication that the third party could or would have been called to testify about the text messages that had been exchanged.
72In the present case, however, the texts at issue were obtained from the complainant. The Crown will have to call her as a witness at trial, of course, to prove other elements of the offences alleged. As many of the judges in the cases relied upon by the Crown have pointed out when considering whether there was a search or seizure, the complainant can testify at trial about the text messages that were exchanged, regardless of the acts of the police: see Morgan, at para. 49; Amdurski #4, at para. 41; Mills, at para. 54; and R. v. Bridle, 2023 ONSC 1259, at para. 73. For that reason, the impact of the police conduct on the accused's Charter right is minimal, at best.
73Although it may not necessarily fit neatly under this prong of the Grant analysis, I would add that I agree with the comments made by many of the judges in the cases referred to immediately above that it seems absurd that a witness could testify about the texts in question and use them to refresh her memory at trial, but that the best evidence of all ‒ the texts themselves ‒ are not admissible because of a Charter breach. As Molloy J. wrote in Amdurski #4, at para. 41:
It is antithetical to the search for the truth, which is the underlying purpose of a trial, to permit oral evidence about what the communications contained, but to prevent the production of the text messages themselves.
74For these reasons, I believe that excluding the texts would do more to bring the administration of justice into disrepute than would allowing them into evidence.
Society’s Interest in the Adjudication of the Case on its Merits
75The allegations against the accused in this case are serious. This is not an ordinary sexual assault case. If the Crown can prove that the element of consent was missing, what the accused did to the complainant goes beyond mere unwanted contact.
76Society’s interest in the adjudication of the case on its merits is, therefore, high.
77This factor also weighs against exclusion.
CONCLUSION
78The accused in this case has not established that he had a subjective expectation of privacy in the text messages exchanged after his relationship. Nor can it be said that any such expectation would have been objectively reasonable. For these reasons, regardless of the nature of the police conduct, there could not be a search or seizure of the post-relationship texts.
79However, the accused has established a reasonable expectation of privacy in the texts exchanged during the relationship. By photographing those texts, the police conducted either a search or a seizure. It is not necessary to decide which. Because no warrant was obtained to photograph the texts, the search or seizure was presumptively unlawful. The complainant’s consent did not render it lawful.
80Nonetheless, admitting the texts that were photographed would not bring the administration of justice into disrepute. Indeed, in my opinion, the administration of justice would be brought into greater disrepute by excluding the texts, in light of the fact that the complainant would be permitted to testify at trial about their contents.
81For these reasons, the application is dismissed.
M.G. Ellies J.
Released: January 30, 2025
CITATION: R. v. Z.E., 2025 ONSC 675
COURT FILE NO.: CR-22-0127
DATE: 2025/01/30
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Z.E.
REASONS FOR dECISION UNDER SECTION 8 OF THE charter
M.G. Ellies J.
Released: January 30, 2025
CORRECTED DECISION: The text of the original decision was corrected on May 12, 2025, and the description of the correction is appended below:
Paragraph 43 was removed as it was included in an earlier version and should have been removed from this one.
A typo was corrected at (former) para. 55 by changing the word “a” to the word “at” before the words “p.278” in the second line and one at (former) para. 57 by inserting a hyphen between the numbers 50 and 52 in the third line.