R v RDC, 2022 ABKB 788

Court of King’s Bench of Alberta Citation: R v RDC, 2022 ABKB 788 Date: 20221130 Docket: 200877348Q1 Registry: Calgary Between: His Majesty the King Crown - and - RDC Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file.

It may be published after the jury retires to consider its verdict. _______________________________________________________ Voir Dire Decision of the Honourable Justice A. Woolley _______________________________________________________

Introduction [ 1 ] RDC is charged with three offences. Two of the charges arise from allegations that, in the early hours of January 13, 2020, he broke into the apartment of his former girlfriend SH and started fires. The third charge arises from an allegation that, between December 15, 2019 and January 12, 2020, RDC uttered, conveyed or caused SH to receive a threat of death or bodily harm. [ 2 ] In support of its prosecution of these charges, the Crown seeks to rely on electronic communications between SH and RDC.

Specifically, it seeks to introduce as evidence a voice mail left by RDC for SH in the evening of January 12, 2020, three e-mails sent by RDC to SH on the evening of January 12, 2020, and text messages sent by RDC to SH on or about December 15, 2019 and on or about January 12, 2020.

The Crown alluded to text messages between and including those dates; however, the text messages provided to the Court were 44 screenshots of messages indicated to have been sent December 15, 2019, and 32 indicated to have been sent January 12, 2020. [ 3 ] RDC submits that the police obtained these messages in violation of his rights pursuant to s. 8 of the Charter of Rights and Freedoms .

Specifically, he submits that he had a reasonable expectation of privacy in the text, voicemail and e-mail communications, and that those communications were obtained by the state without legal authorization or justification. [ 4 ] For the reasons that follow I dismiss RDC’s application. [ 5 ] At the voir dire the Crown also sought a preliminary ruling regarding the admissibility of evidence related to interactions between the accused and SH that fall outside the scope of the charges.

I determined that that issue ought to be decided by the trial judge in light of this ruling, and in light of the specific questions sought to be asked, and evidence sought to be introduced, by the Crown at trial, and the specific objections made to those questions or evidence by the defence. Issues [ 6 ] To determine whether the voicemails, text messages and emails seized by the Calgary Police Service were collected in a manner that infringed RDC’s s. 8 Charter rights, the following questions must be answered: 1.

Does RDC have standing to assert a s. 8 violation with respect to the e-mails, voicemail and text messages? In particular, does RDC have a reasonable expectation of privacy in relation to the e-mails, voicemail and text messages? 2. If RDC had a reasonable expectation of privacy, did the police obtain the emails, voicemail and text message through an unreasonable search? RDC has the onus to demonstrate his standing to assert a s. 8 violation; since the search was warrantless, the Crown has the onus to show that the search was reasonable.

Facts [ 7 ] The Crown offered testimony from six police officers, five of whom had attended at the residence of SH in the early hours of January 13, 2020, and one of whom assisted in the investigation in the weeks after January 13, 2020. [ 8 ] Those officers testified about the events of January 13, 2020, and, in particular, to their observations of RDC being at the residence of SH, their observation of fires and damage being found in the residence of SH, and SH’s demeanor and state of mind at that time. [ 9 ] That information was not scrutinized through cross-examination and is analytically relevant only insofar as it indicates the overall state of the investigation and knowledge of the police officers when they received the information from SH about the communications from RDC.

Specifically, it indicates that the police: 1. Understood SH to have ended her relationship with RDC earlier in the evening of January 12, 2020. 2. Understood SH to have called 911 and reported that RDC had broken into her apartment and was breaking things. 3. Had reason to believe that RDC had broken into the residence, by virtue of the footprints indicating someone had climbed the balcony to gain access to the residence. 4. Understood RDC to have been at the residence since he walked out of the residence as the police arrived at the door. 5.

Had reason to believe that RDC had done damage to the residence, in light of the phone call, RDC being at the residence, and the damage and lit fires located in the residence. 6. Had reason to believe, by virtue of SH’s statements, that RDC had engaged in violence on previous occasions, including breaking a window at SH’s residence. [ 10 ] On that evening, the police obtained a witness statement from SH. In her statement she advised in relevant part:

1. That RDC had threatened her verbally - "I don't make threats, I make promises". 2. That he had sent her abusive texts, calling her a complete fucking cunt. 3. That he sent her texts she understood to be threatening, such as "run little rabbit… run". 4. That, after she blocked his number, he sent her e-mails that she understood to be threatening such as "Karma is a real bitch" and "this doesn't end here, you don't get to walk away after", "You don't get to lie and hurt and ignore people the way you have chosen to and get away with it by blocking and ignoring.

Sooner or later we all pay they [sic] price for our mistakes and sooner or later we all die". 5. The e-mails and texts made her fearful, and so she parked her car away from the home and wrote a letter to let her family know that, in the event she was killed, it was probably RDC that did it. [ 11 ] In a Family Violence Investigation Report questionnaire SH also indicated that RDC had sent “lots of jealous e-mails and texts, but not stalking”. [ 12 ] At or about 5:16am on January 13, 2020 SH forwarded to Cst.

Lovell the first e-mail from RDC, which she had apparently received at or about 11:00pm on January 12, 2020. The forwarded e-mail said: Hey, it’s me! Resent me? The man you led on to believe you lived [sic] unconditionally and swore you wanted to live the rest of your life with…. Yeah… that guy… Only you chose to hurt me and lie to me and ignore me… Karma is a real bitch You are stronger than this… And yet look how you chose to react and respond… Truth hurts… Truth hurts real bad.

Celebrate the struggle. [ 13 ] Also, at or about 5:16am on January 13, 2020, SH forwarded the second e-mail from RDC, which she had apparently received at or about 11:08pm on January 12, 2020. It said: So you think it’s ok to lead me in and to then just block and ignore me for speaking the truth?? Hmmm Ok. But not ok. You are choosing to hurt me and choosing to block and ignore like a weak little bit I [sic]. This doesn’t end here.

I deserve better just as you do…you didn’t give me the closure you made me think you would…you don’t get to walk away after thinking it’s ok to hurt somebody that you claim you love and claim you want to spend your life with and swore to com [sic] with no matter what. Don’t want to be called a weak ass pussy then don’t act like one. Want to ‘stop the bleeding’ as you claimed… Then you really should do exactly that. Properly. Once and for all. Running and blocking and not following through will not help you at all. I guarantee that.

Celebrate the struggle [ 14 ] At or about 5:17am SH forwarded an e-mail she had apparently received at or about 11:20pm on January 12, 2020 from RDC which said: You don’t get to lie and hurt and ignore people the way you have chosen to and just get away with it by ‘blocking’ and ignore. Sooner or later we all pay the price for our mistakes and sooner or later we all die. Celebrate the struggle [ 15 ] At or about 2:07am on January 14, 2020 SH sent a further e-mail to Cst.

Lovell in which she said, “I’m not sure who to contact about this, but I was listening to my voicemails just now and I hadn’t realized before that [RDC] had left me one. He actually

ended it with ‘you’re fucking dead bitch’ before hanging up”. [ 16 ] Cst. Lovell responded at approximately 5:15am on January 14 am, stating, I have cc’d Cst. Frison on this email, as she will be liaising with you moving forward. Is it at all possible to save this voicemail and provide it to Cst. Frison on Wednesday at your meeting? Please let myself or her know if this is possible and if not, I am sure Cst. Frison will still want to listen to the voicemail during your meeting. [ 17 ] On January 16, 2020 Cst. Frison met with SH at a confidential location, to review safety issues with her.

During that conversation, Cst. Frison took an audio recording of the voicemail. The audio recording, which was played in Court and provided on a USB says: You don’t get to fucking lie to people. Fucking lead to believe that you fucking love them no matter what. Unconditional love? [Inaudible] Ignoring people that you fucking claim to love. Claim to want to communicate with. Claim to want to spend your life with, only to do the opposite? Yeah, you’re fucking dead bitch.” Sent January 12 at 11:31pm from [phone number], 28 seconds, end of message. [ 18 ] On January 23, 2020, Cst.

Frison had a formal recorded interview with SH. At that interview they recorded the voicemail again. SH mentioned the voicemail independently in that interview. [ 19 ] On February 12, 2020, Cst. Frison took possession of SH’s phone. She had not taken possession of it earlier because the digital forensics team was relocating, and she did not have access to the screenshot necessary for her digital analysis. [ 20 ] SH gave a consent that authorized Cst. Frison to look at “Emails, text messages, photo’s, call-log [space] text (Dec 15 2019 – January 12 2020). [ 21 ] Cst.

Frison indicated that she did not look at any content from the phone other than text messages, although on cross- examination she acknowledged that she did not have a specific recollection about whether she looked at those other things. Nothing other than the impugned text messages was reproduced from SH’s phone. [ 22 ] Cst. Frison described how she duplicated the text messages. She had SH show her where on the phone the messages were – the app they were in, and the relevant number.

She then took the phone and opened the messages and duplicated the screen for the series of text messages from and including December 15, 2019 to and through January 12, 2020. As noted, the text messages exhibited in the voir dire were indicated to have been sent on or about December 15, 2019 or on or about January 12, 2020. [ 23 ] Cst. Frison did not do a digital extraction of the phone, or reproduce any of the other contents of the phone.

She reproduced only the text messages SH had informed her about, the location of which SH had identified for her. [ 24 ] SH did not testify. [ 25 ] The text messages were reproduced as approximately 78 screenshots. At some points in the text messages from on or about December 15, 2019 RDC made statements in relation to SH’s sharing of the communications: I hope you got a real clear audio recording just now. If not, I have no problem saying the truth again nice and clear for you to record for whoever. Or you can just keep ignoring like the petty little lying bitch you’ve proven to be.

That’s what I thought Anything else you’d like me to text you for a nice screen shot that you can add to ‘the file’ for court??!! That is if you go the legal route of course. Go ahead… tell me what you’d like me to text you that you can screen shot… Maybe something like…hey [SH] why did you choose to be a lying little cunt. Oh wait! Oops, sorry, my bad lol…. Here…this works in your favour a little better… Hey [SH] …you’re a fucking waste of time and a heartbreaker. There you go! Screen shot that and add to the file lol [emojis] ….

See you in small claims court then I guess if that’s the way you wanna fucking play this and waste more time and keep lying some more!! Good job ya fucking lying bitch! Oh in case you’re not sure how… FYI… if you push the top right button at the same time as the top left button. It’s called a ‘screenshot’ and you can use that picture in Court. Texts are allowed as well [emojis] Here let me show you…[screenshot]

See! Ta da! Hello judge! You’re fucking welcome. Law Supreme Court Authority [ 26 ] In its 2017 decision in R v Marakah , 2017 SCC 59 , the Supreme Court provided a basic legal framework for analysis of s. 8 in the context of state reviews of electronic evidence. In that case, the police seized the cell phones of Mr. Marakah and Mr. Winchester. They searched both devices and found incriminating text messages. The Application Judge held that the search of Mr. Marakah’s phone was illegal, but that Mr. Marakah had no standing to challenge the admission of text messages recovered from Mr. Winchester’s phone.

The Ontario Court of Appeal agreed that Mr. Marakah could have no expectation of privacy in text messages recovered from Mr. Winchester’s phone. [ 27 ] The Supreme Court allowed the appeals, finding that Mr. Marakah had a reasonable expectation of privacy in relation to the text messages on Mr. Winchester’s phone, that the search of Mr.

Winchester’s phone was unlawful, and that the evidence was inadmissible pursuant to s. 24(2) of the Charter . [ 28 ] Chief Justice McLachlin held that to assess whether a person has a reasonable expectation of privacy the Court must consider: 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 subject expectation of privacy objectively reasonable?: R v Marakah , 2017 SCC 59 at para 11 . [ 29 ] If the person does have standing, then the claimant may argue that the search was unreasonable. [ 30 ] Chief Justice McLachlin held that the subject matter of the search was not the phone of Mr.

Winchester; rather, it was the electronic conversation between him and Mr. Marakah: Marakah at para 17 . The subject matter includes the existence of the conversation, the identities of the participants, the information they shared, and the inferences about associations and activities that that information permits: Marakah at para 20 . [ 31 ] She further held that Mr.

Marakah had a direct interest in the information, and that he had a subjective expectation of privacy, noting that establishing such an expectation does not represent a “high hurdle”: Marakah at para 22 . [ 32 ] With respect to objective reasonability, Chief Justice McLachlin directed the Court to consider contextual factors, most notably the place where the search occurred, the private nature of the subject matter, and control over the subject matter: Marakah at para 24 . [ 33 ] With respect to place, Chief Justice McLachlin said: Another option is to say that the place of the search is the device through which the messages are accessed or stored: see Moldaver J.’s reasons, at paras. 144-45 and 151.

Again, this suggests there may be a reasonable expectation of privacy in a text message conversation. Control or regulation of access to a place is relevant to a reasonable expectation of privacy: see Edwards at para 45.

I may have a high expectation of privacy in my own phone, which I completely control, a lesser expectation of privacy in my friend’s phone, which I expect her to control, and no reasonable expectation of privacy at all if I expect the text message to be displayed to the public: Marakah at para 29 . [ 34 ] The “place” of a text message does not preclude a reasonable expectation of privacy; the issue is always “what the individual, in all the circumstances, should reasonably have expected”: Marakah at para 30 . [ 35 ] With respect to the nature of the information, the Chief Justice cautioned against relying on the actual contents of the messages, which she said ought not to be the “focus”.

Rather, the Court should consider the “potential of a given electronic conversation to reveal personal or biographical information”: Marakah at para 32 . She found that text messages are private forms of communication, saying: Indeed, it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging.

There is no more discreet form of correspondence: Marakah at para 35 . [ 36 ] She noted that electronic conversations allow people to “communicate details about their activities, their relationships, and even their identities that they would never reveal to the world at large, and to enjoy portable privacy in doing so”: Marakah at para 36 . [ 37 ] With respect to control, the Chief Justice said that control is not an absolute indicator of privacy, and a lack of control is not fatal to a privacy interest: Marakah at para 38 .

She said that individuals exercise meaningful control over the information they send by text, choosing how, when and to whom they disclose: Marakah at para 39 . That Mr. Winchester could have disclosed his communications with Mr. Marakah to a third party “does not change the analysis”: I conclude that the risk that Mr. Winchester could have disclosed the text messages does not negate Mr. Marakah’s control over the information contained herein. By choosing to send a text message by way of a private medium to a designated person, Mr. Marakah was exercising control over the electronic conversation.

The risk that the recipient could have disclosed it, if he chose to, does not negate the reasonableness of Mr. Marakah’s expectation of privacy against state intrusion: Marakah at para 45 .

[ 38 ] Chief Justice McLachlin went on to consider the concern that this

interpretation would “allow sexual predators or abusive partners to retain a reasonable expectation of privacy in text messages that they may send to their victims”: Marakah at para 48 . She said, however, that prior judicial authorization is how privacy rights are protected, and that s. 8 must be “content neutral”. Further, she suggested that the police can access such information.

They may be able to obtain prior judicial authorization ( Marakah at para 50 ); if they access the information without prior judicial authorization they may nonetheless be able to “establish on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was carried out in a reasonable manner” ( Marakah at para 51 ); and they may be able to obtain admission of the evidence pursuant to s. 24(2) ( Marakah at para 52 ). [ 39 ] The Court in Marakah thus provided a roadmap for analyzing a person’s standing, and their reasonable expectation of privacy, in the context of text messages.

Further, the Court’s analysis directs courts of first instance to take seriously the privacy inherent in electronic communications, and to be careful not to ignore those interests simply because they are recorded, they could be disclosed to a third party, or their content is criminal or otherwise problematic. [ 40 ] At the same time, however, the Court made it clear that whether there is a reasonable expectation of privacy depends on “the totality of the circumstances” of a particular case: Marakah at para 11 .

Further, the Court in Marakah , while providing some obiter discussion of whether s. 8 could be triggered in the event of disclosure to the police by a complainant in a case of abuse or intimate partner violence, did not resolve that issue. [ 41 ] When saying that the police could obtain a prior judicial authorization, the Chief Justice acknowledged that this was “Assuming that s. 8 is engaged when police access text messages volunteered by a third party”: Marakah at para 50 .

She listed as potential third parties “the victim, his or her parents, or other intelligence”, and described the context as disclosure of the “existence” of such messages: Marakah at para 50 .

Further, she allowed the possibility that if prior judicial authorization was not obtained, that an accused “may” – or, by logical inference, may not – have a reasonable expectation of privacy. [ 42 ] In other words, while the thrust of the Chief Justice’s decision in Marakah is indisputably towards the recognition and protection of privacy interests in electronic conversations, she recognized that whether a particular electronic conversation attracts a reasonable expectation of privacy depends on the circumstances, that it remains to be determined whether s. 8 is engaged when police access text messages volunteered by a third party and, if it is, whether state access in the absence of a prior judicial authorization is nonetheless reasonable. [ 43 ] The Court considered a related issue in R v Reeves , 2018 SCC 56 where it considered the validity of police access to a computer shared by the accused and his wife, where the wife consented to that access.

The Court held that the accused did not accept the risk of someone consenting to give the police access to something that is shared, and that that consent could not nullify his reasonable expectation of privacy: Reeves at para 47 . Further, the spouse could not waive the accused’s rights under s. 8.

The Court observed that while a person may take a risk that a person with whom they share a computer may access the data on it, or “even perhaps discuss this data with the police”, “it is not reasonable to ask them to bear the risk that the co-user could consent to the police taking this computer”: Reeves at para 42-43 , emphasis in original. [ 44 ] The Court also addressed a related issue in R v Jarvis , 2019 SCC 10 , where it considered the general question of when an expectation of privacy arises, in that case for female students surreptitiously video recorded while engaging in ordinary school activities in common areas.

The Court held that a reasonable expectation of privacy must be assessed in the “entire context” and that the “list of considerations that may be relevant to this inquiry is not closed”. Many of the factors noted by the Court were specific to the context of video recording, but they did include “the relationship between the parties”: Jarvis at para 5 . [ 45 ] In R v Mills , 2019 SCC 22 the Court considered whether a record of an online communication between the accused and a police officer obtained without prior judicial authorization ought to be excluded pursuant to s. 8.

The Court held that they ought not to be excluded. [ 46 ] Writing for four members of the Court (including Justice Moldaver), Justice Brown held that Mr.

Mills could have no reasonable expectation of privacy, because he was communicating with someone whom he believed to be a child, and who was a stranger to him, and the police officer knew those circumstances when the officer initiated the conversation: Mills at para 4 . [ 47 ] Justice Brown reiterated the need to assess a reasonable expectation of privacy in the totality of circumstances, which “entails an evaluation of all aspects of privacy”: Mills at para 13 . [ 48 ] Further, Justice Brown clarified the nature and variation of privacy interests: Before turning to the normative question, as a preliminary matter, the nature of the privacy interest must be determined.

Here, Mills asserts an informational privacy interest. As this Court held in Spencer , informational privacy includes at least three conceptually distinct although overlapping understandings of privacy: as secrecy , as control , and as anonymity : para. 38. Mills is asserting a “privacy as control” interest in the content of his communications, which represents the “assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit”: Spencer , at para. 40.

While this privacy interest protects what information we share with others, it in turn relies on the control that a person exercises by choosing, selectively, those particular persons who will receive this information: Mills at para 21 , emphasis in original. [ 49 ] Justice Brown noted that in this case Mills chose to communicate to an ostensible child who was a stranger to him, and the police knew that Mills had done so; this was not, Justice Brown concluded, a relationship “worthy of s. 8’s protection”, and the police could confidently assume that no s. 8 concerns would arise: Mills at para 26-27 . [ 50 ] Justice Karakatsanis, writing for three members of the Court (including Justice Moldaver) took a somewhat different approach.

In her view, because Mr. Mills intended for the recipient “who happened to be a police offer” to receive his messages, he had no reasonable expectation of privacy “that his messages would be kept private from the intended recipient”. For that reason. “s. 8 is not engaged”: Mills at para 44 . She observed that by communicating with a stranger he “opened himself up to the possibility that the other person was a police officer”, and that the Charter does not protect a person against “a poor choice of friends”: Mills at para 5 . She also

noted that this was different than “viewing a text message conversation between two of the parties without their consent” which, citing Marakah , she suggested does engage s. 8 of the Charter . [ 51 ] Mills adds three elements to the Marakah analysis. First, it illustrates the point that a reasonable expectation of privacy must be assessed in the totality of the circumstances; electronic communications between a man and a stranger whom he believes to be a child, do not attract the same expectation of privacy as do communications between two friends.

Second, it suggests that the knowledge of the police about the nature of the relationship at the time they receive the information is salient to assessing whether there is a s. 8 violation.

Third, at least based on Justice Karakatsanis’s concurrence, it suggests that the expectation of privacy does not extend to the participants in the conversation – i.e., the privacy is in relation to outsiders, including the state, but not to those who participate in the conversation. [ 52 ] The Supreme Court’s jurisprudence in this area sets out the framework for assessing whether RDC has standing under s. 8, and a claim under s. 8. Of particular importance in my view are: 1. A reasonable expectation of privacy must be assessed in the totality of the circumstances. 2.

One of the circumstances relevant to assessing whether there is a reasonable expectation of privacy is the nature of the relationship between the parties. 3. Generally speaking, electronic conversations between friends will be private. 4. Privacy may not exist in relation to the other participant in a conversation, even if it exists in relation to third parties or the state. 5.

One person cannot consent to the violation of another person’s privacy. [ 53 ] Decisions by lowers courts, which deal with facts more squarely on point with the ones in this case, provide further guidance for the resolution of these issues. Those cases are summarized by province for ease of review. Alberta [ 54 ] In R v King , 2021 ABCA 271 , the Court of Appeal held that no s. 8 violation occurred where the accused’s spouse downloaded child pornography from the accused’s computer to a USB, and provided that USB to the police.

The Court held that “The police can presumptively look at most evidence provided to them without breaching s. 8”: King at para 8. [ 55 ] In R v Carter , 2018 ABQB 667 , Justice Poelman held that e-mails voluntarily disclosed by the recipient did not engage s. 8. In addition to finding that a subjective expectation of privacy had not been established, he concluded that there was no reasonable expectation of privacy. The conversation did not include personal details and the relationship was a work relationship: Carter at para 135 .

In addition, the disclosure was voluntary: “The accused could reasonably expect to be protected against ‘state intrusion,’ but accepted the risk of a voluntary disclosure by the recipient of their conversations”: Carter at para 136 . This weighed against a reasonable expectation of privacy. [ 56 ] In R v Earle et al (unreported, March 21, 2022) Justice Miller addressed the disclosure of messages by a member of a Snapchat group, who had the ability to view the messages in question.

Justice Miller held there was a reasonable expectation of privacy: Similarly, in Reeves , paragraph 42 , the ever present risk of tattletales does not obviate a conversationalist’s privacy interest. In this case, Constable Brent Lorenz directed that the photos of the electronic conversation taken by [DT] be copied and saved. This was requested knowing full well that the conversation was copied without the consent or knowledge of the claimants or the parties to the electronic conversations. The police, thereby, conducted a warrantless search by seizing the conversations from [DT’s] phone.

Warrantless searches are prima facie unreasonable plus in this case, there were no exigent circumstances. [ 57 ] Since there was no justification for the warrantless search, there was an infringement of the claimant’s s. 8 rights. Quebec [ 58 ] In R v Burke , 2021 QCCQ 3626 , the Court held that

section 8 was not engaged by the police reviewing electronic messages between the complainant and the accused. The Court noted the consent form signed by the complainant to permit extraction of the text messages, and that she, a participant in the conversation, freely and voluntarily provided them to the police.

The accused could not expect privacy so as to preclude the police from reviewing materials voluntarily provided by the other participant, when that participant is not acting as an agent of the state: Burke at para 24-57 . [ 59 ] In Estrella Llaneza v R , 2019 QCCQ 3012 , the Court also dealt with voluntary disclosure by a complainant. The Court held that extraction of messages disclosed by a complainant “was not an investigatory technique that constitutes a search and seizure”: Estrella Llaneza at para 27 .

The Court noted that it could not see any distinction between a person voluntarily providing a printed record of a communication and a person providing a device to the police from which they could extract the relevant information: It would be inconceivable for the police, who have a duty to investigate crime and protect the public, to refuse to take possession of printouts made by an alleged victim.

It would be as inconceivable for the police to refuse to look at or to extract an electronic conversation from a device belonging exclusively to the same alleged victim, where such device is provided: Estrella Llaneza at para 32 . [ 60 ] The Court noted that the accused intended for the complainant to receive his messages, and that he could not expect them to be kept private from her or, given that they were recorded, to preclude her control over those recorded messages: “Canadians ought not to expect privacy in a conversation involving an alleged victim, where such conversation is provided to the police without the police having taken any affirmative action, but is simply received from one of the participants”: Estella Llaneza at para 37.

Ontario [ 61 ] In R v Morgan , [2020] OJ No 2330 , the accused and complainant were both students but were strangers to one another. They met after the accused found the complainant apparently intoxicated and vomiting at the side of the road following a Halloween party. The complainant alleged that the accused sexually assault her. After the alleged assault the complainant sent text messages to the accused which she later disclosed to the police, and which the police downloaded without a warrant from the complainant’s mother’s phone and from the complainant’s laptop.

The Court held that this did not violate s. 8, as it did not constitute a search or seizure. The Court held this was the “digital equivalent of making a photocopy of a letter containing a threat, or the copying of a surveillance video that has been handed over by a cooperative storeowner”: Morgan at para 20. It was not an instance of the police scouring an electronic device for relevant evidence.

They also noted that it should make no difference whether the complainant printed out the messages herself and handed them to the police, or whether she consented to the contents of her phone being extracted: Morgan at para 22. Fundamentally, the complainant had “clear and proper access” to the information, and she provided it to the police. What the police did, in receiving that information, was “reactive and responsive…It was entirely non-intrusive in respect of Mr. Morgan”: Morgan at para 34. As such, no

section 8 violation could arise. The Court considered Marakah and concluded: Marakah was a game changer. It shifted the Charter paradigm concerning the issue in a very significant way. It did not, however, change the law as fundamentally as the Applicant asserts in this case.

Marakah does not stand for the proposition that anytime the police come into possession of a [text message conversation], even if delivered to them by a complainant through the medium of an electronic device, they have necessarily conducted a search or seizure that requires an inquiry into standing: Morgan at para 47. [ 62 ] In R v KA and ASA , 2022 ONSC 1241 the Court considered the admissibility of electronic communications between an alleged pimp and an alleged female “sex worker and slave”. The alleged pimp had put parental controls on her phone.

The Court held that the accused did not have an objective expectation of privacy in the electronic communications. It noted the nature of the relationship – between an “alleged male pimp and human trafficker and his alleged female sex worker and slave” – is not one “worthy of

section 8 Charter protection”: KA at para 54. Justice Conlan observed the point from Marakah , that every case turns on its own unique facts. He also suggested that, in paragraph 50 of Marakah , when the Chief Justice said that when text messages are volunteered by “a third party” the police could obtain a warrant, does not refer to disclosure by a complainant. Justice Conlan noted that earlier in the decision, when the Chief Justice referred to a “third party” she meant someone other than the participants in the electronic conversation: KA at para 60.

He said, “[s]imply put, Marakah is not a consent search case, and it is not a case where the electronic messages came to the attention of the police through voluntary surrender by the alleged victim who was also one-half of the conversations”: KA at para 61. [ 63 ] In R v Amdurski , 2022 ONSC 1338 [available on LexisNexis, [2022] OJ No 2116 , but not on CanLII], the Court dealt with text messages sent between an alleged pimp and a 13-year-old. The text messages were disclosed by the 13-year old’s mother.

The Court held that there was no s. 8 issue arising in this case because the “text messages were voluntarily turned over to the police by a concerned parent”. And, in any event, the accused had no reasonable expectation of privacy, the mother had the authority to consent to the police having the message, and the 13-year-old also consented. If this was a seizure, it “was not unreasonable and did not violate

section 8”: Amdurski at para 4 . [ 64 ] In R v CM , 2022 ONCJ 372 , the Court excluded Facebook messages sent by the accused to the complainant the day after the alleged offence. The messages had been disclosed by the complainant and her mother; the accused was the complainant’s former stepfather. The Court held that the accused had a reasonable expectation of privacy noting that he “stood in a quasi-parental role towards her”, and they were “well known to each other”, a fact of which the police were aware: CM at para 37.

The Court distinguished KA and Morgan on the basis that the parties in those cases were relative strangers to one another. In the Court’s view, it was “reasonable to expect that electronic conversations between a 15-year-old and their former step-parent would be free from warrantless state intrusion”: CM at para 39. The judge held that the consent of the complainant and her mother could not vitiate the privacy interests of the accused, distinguishing the other cases by noting that the accused in those cases did not have a reasonable expectation of privacy.

In the judge’s view, Reeves provided a “complete answer” to this position, making it clear that the person with the privacy interest who faces a risk of disclosure has not given up the right to protection under s. 8: CM at para 46. Saskatchewan [ 65 ] In R v Vey , 2019 SKQB 135 , the accused’s wife Brigitte Vey had surreptitiously recorded him on suspicion that he was having an extra-marital affair. She was recording 12-13 hours a day when she was out of the home. On July 1, 2013, she heard Mr. Vey and Angela Nicholson discussing their affair and also discussing killing Ms. Nicholson’s spouse. Ms.

Vey disclosed the recording to the police. The police did not obtain a search warrant before removing the recorded conversation from Ms. Vey’s iPod. [ 66 ] The police held that Mr. Vey and Ms. Nicholson had a reasonable expectation of privacy in their conversation. That conversation was “illegally and surreptitiously recorded by Brigitte Vey”: Vey at para 105 . Ms. Vey had no share in the conversation and was not a party to it; she had no subjective expectation of privacy in the conversation.

Her illegal recording of that conversation “does not negate the reasonableness of Curtis Vey’s expectation of privacy nor does it negate the reasonableness of Angela Nicholson’s expectation of privacy”: Vey at para 106 . As such Mr. Vey and Ms. Nicholson had standing to challenge the search, and that search in fact violated s. 8. The Court noted that Ms. Vey did not voluntarily give the iPod to the police – rather, it was seized by the police: Vey at para 125 . Even if it had been voluntarily given, Ms.

Vey had no privacy interest in the recorded conversation and was not a party to it; as such, she “had no authority to permit police to access the conversation because she had no privacy interest in the conversation”: Vey at para 128 . [ 67 ] In R v Bear-Knight , 2021 SKQB 258 , the accused and complainant had known each other for a little more than 24 hours. He sent her messages in which he apologized and expressed regret for his behaviour towards her. She disclosed the messages to the police.

The Court held that he had no reasonable expectation of privacy – i.e., he could not expect that she “would not share the message with others, including the police” – given the brevity of the relationship and given his concerns about his behaviour towards her: Bear-Knight at para 51 . The Court further held that the police taking a screen shot of evidence voluntarily provided by the complainant “did not reflect surreptitious state action”: Bear-Knight at para 52 . In reliance on the judgment of the Court of Appeal in King , the Court added

that “there is some absurdity in the notion that the police should be expected to obtain a warrant to collect evidence in the lawfulpossession of a person who wishes, freely and voluntarily, to provide the evidence to the police without a warrant”: Bear-Knight at para53. British Columbia [68] In R v Phagura, 2019 BCSC 1638, the Court held that no s. 8 claim arose in relation to WhatsApp messages exchangedbetween the accused and the complainant both before and following the alleged sexual assault by the accused of the complainant.

Thecomplainant had disclosed the messages to the police, and they had taken photographs of the messages. [69] The Court held that Mr. Phagura did not have a reasonable expectation of privacy. The Court noted that expectations ofprivacy are contextual and take into account what the sender can expect in relation to the recipient. Specifically, a sender cannot expectto make a threat and expect that threat to be kept private; while privacy may be the norm, a sender “does not or cannot have absoluteconfidence that a text message will remain private.

There is much that depends on the circumstances”: Phagura at paras 53-54. [70] In addition, even if he had an objective expectation of privacy, the police could look at the texts with the consent of therecipient; it was “not reasonable for Mr. Phagura to think or expect that Ms. MK would not be able to consent to provide suchinformation to the police. In my view, the consent provided by Ms. MK was valid and sufficient for the police to obtain copies of the textmessage exchange between the two parties”: Phagura at para 62.

Application [71] I find that RDC does not have standing to assert a s. 8 breach in relation to the e-mails, text messages and voicemails disclosedby SH. In the alternative, if he has such standing, I am satisfied that SH’s voluntary disclosure of the e-mails and voicemail, and herconsent to the police review of the text messages, was sufficient to permit the police to look at that information without the necessity ofobtaining further legal authorization. Standing [72] For the purposes of this analysis, I accept that the subject matter of the search was the text messages, e-mails and voicemailsthemselves.

I accept that RDC had a direct interest in that subject matter. [73] I also accept that RDC had a subjective expectation of privacy in that subject matter. I acknowledge the Crown’s observationabout the lack of evidence offered by the accused in support of this assertion. I also acknowledge the various points on or aboutDecember 15, 2019 where RDC suggested to SH that she take screenshots of their exchanges and disclose them in court. I rely, however,on the low bar for an accused to establish a subjective expectation of privacy.

Case law suggests that where the Crown asserts that anaccused is the author of the messages, that can be sufficient to establish a subjective expectation of privacy: R v Jones, 2017 SCC 60, [2017] 2 SCR 696 at para 33.

In my view, RDC’s comments inviting SH to take screenshots are more appropriately consideredin relation to the assessment of whether he had an objective expectation of privacy. [74] In my view RDC does not have an objective (reasonable) expectation of privacy in the e-mails, text messages and voicemails.Any expectation of privacy he does enjoy does not extend to precluding the disclosure of those messages by SH as the party whoreceived them. [75] The privacy of control, which allows a person to “communicate or retain” information for themselves (Mills at para 21), doesnot extend so far as to permit a person to

a) disclose information to a recipient;

b) put that information in a written, preservable form; andc) prohibit the recipient from disclosing that information to the police absent the authorization of a third-party. In any conversation,whether electronic, in hard copy, or in person, both participants in the conversation appreciate the other’s knowledge of what has beencommunicated. Both participants have the ability to make decisions about what to communicate and retain.

Further, and importantly,both participants accept the risk of disclosure by the other party and understand – or certainly ought to understand – that the other party’sinterests and rights are equal to their own. [76] The story and experience of the communications between SH and RDC do not belong to RDC alone. They belonged to both ofthem. This was not an object they shared, while retaining independent use and enjoyment of it, as was considered by the Supreme Courtin Reeves. Rather, it was a communication between them jointly and equally.

The privacy interests they both enjoyed prohibited theintrusion of a third party (someone equivalent to, for example, the wife of Mr. Vey). But it did not prohibit the independent decision ofeither of them as to what to do with what they had communicated. Each of them had the freedom to decide for themselves whether toretain it or share it. That freedom inheres in the bilateral nature of the communicative act.

To put it slightly differently, SH should not –and RDC could not reasonably expect her to – need to obtain approval from a third party for the police to listen to what she has to say anddisclose. [77] That limitation on the extent of a privacy interest does not allow – as the Chief Justice correctly emphasized in Marakah, andas was starkly illustrated in Vey – a third party to intrude upon a conversation without proper legal authorization.

But it does mean thatthe privacy interests of each participant does not go so far as to forbid or prohibit the other participant from disclosing what has been saidor written. [78] RDC himself appreciated this limitation when, as earlier noted, he said that SH could record the information for “whoever”,and that she could screen shot and disclose it. He knew, as does any participant in a private conversation, that privacy does not precludedisclosure by the person with whom he was communicating.

And, logically, privacy may be broken when either participant in theconversation chooses to disclose what was said, and may be broken especially effectively when the communication is recorded and can

be shared. [79] Also salient is what the police knew or understood about the nature of the relationship between RDC and SH at the time theyaccessed the communications. To the knowledge of the police, SH had broken up with RDC on January 12 and, after the series of textmessages, had blocked his number, which is when he sent the e-mails and voice mails. In addition, the police understood that RDC andSH had broken up (albeit later reconciling) on December 15, 2019.

All of the text messages, e-mails and voicemails sought to beintroduced in evidence were for a time period when, so far as the police were aware, there was a break in the intimate relationshipbetween SH and RDC. A person may still have some expectation of privacy subsequent to a break-up, but that expectation is,objectively, significantly diminished. [80] Further, in relation to the ‘place’ of these communications, the police accessed the text messages and voicemail off the phoneof SH. This reflects, as noted in Marakah, a diminished expectation of privacy.

The e-mails were forwarded to the police by SH. [81] I accept that in general text communications between former romantic partners give rise to a reasonable expectation ofprivacy, given their potential to reveal personal or biographical information.

I do not change my assessment of the potential for theinformation exchanged in a communication to be personal or biographical by reviewing the specific communications sent by RDC to SH.The inquiry as to the nature of an electronic conversation must be content neutral. [82] At the same time, however, in determining the nature of the relationship between RDC and SH, and whether it is such as togive rise to a reasonable expectation of privacy, I do take into account the fact that the messages at issue were abusive, harassing andthreatening, and were sent after SH had apparently ended her relationship with RDC.

The messages reveal the breakdown of therelationship, that this was no longer a functional, intimate or romantic relationship, but was rather one where SH endeavoured to leave,and RDC responded with rage and aggression. Text messages exchanged in those circumstances do not give rise to the same expectationof privacy, objectively speaking, as would an exchange between friends or romantic partners whose relationship was still ongoing.

RDCcould not reasonably expect his ex-girlfriend not to disclose abusive messages sent by him following the conclusion of their relationship.If anything, such disclosure was predictable, at least in relation to SH’s friends and family. [83] In making this assessment of RDC’s expectation of privacy, I rely on the case law reviewed above, almost all of which foundthat no objective expectation of privacy arose. I acknowledge that this case was not a work relationship (Carter), was not a relationshipbetween a sex worker and a pimp (KA; Amdurski) and was not a relationship between strangers (Morgan; Bear-Knight).

It was,however, a relationship that had broken down. I agree with and adopt the analysis of Justice Crabtree in Phagura with respect to theexpectations of the sender in relation to the recipient – that it is those expectations that are relevant in a case where it is the recipient whodiscloses the information. [84] I have considered the analysis in CM but, with respect, cannot agree with it.

I am not persuaded by the Court’s assessment ofthe nature of the relationship between the parties, and believe it puts insufficient weight on what the accused could have reasonablyexpected in relation to the recipients of the communication. [85] I have also considered the analysis of Justice Miller in Earle. I have reservations about his privacy analysis but, in any event,the case is distinguishable given that the person disclosing the information in Earle was a known witness to the conversation, not aparticipant in the conversation, as SH was here.

Further, the understanding of the police here about the breakdown of the relationshipbetween RDC and SH separates the facts of this case from those of Earle.

Reasonableness of the search [86] I agree with, and adopt, the analysis in the prior case law that where the known and intended recipient of an electronicconversation voluntarily discloses the conversation to the police, and consents to the police reviewing the conversation, then the policereview is reasonable, and does not violate s. 8: King at para 8; Carter at para 136; Burke at para 47; Estrella Llaneza at para 32;Morgan at para 20; KA at para 61; Amdurski at para 4; Bear-Knight at para 53; Phagura at para 62. [87] As the Alberta Court of Appeal said in King at para 8: “the police can presumptively look at most evidence provided to themwithout breaching s. 8”. [88] As such, I find that the Crown has discharged its burden of showing that the warrantless search was nonetheless reasonable. [89] The accused in this case suggested that the police involvement in obtaining the information took the facts outside of consent.Counsel emphasized that after being told about the voicemail by SH, the police asked that she provide it to them.

They also asked thatSH forward the e-mails she had told them about. Finally, while SH told them about some text messages she had received, they obtained aconsent from her to permit them to review a broad variety of information on her phone, and they took the phone from her and reviewed itindependently. [90] In my view, this iterative process for obtaining the information from the complainant does not alter the essential nature of howthe police obtained it. She told them about the messages and the nature of what they contained.

She quoted them in her written statement.On being asked for more information, she provided it. She formally consented to the police accessing her phone.

Nothing on the recordbefore me suggests anything other than the free and voluntary provision of the information by the complainant. [91] The accused suggested that the complainant’s consent ought not to be viewed as determinative unless it satisfies the standardsfor consent and waiver set out in the case law, such as R v Wills, (1992) (ON CA), 7 OR (3d) 337 (CA) at para 69-71.Counsel submitted that I had no evidence to show that SH appreciated her position vis-à-vis the ongoing investigation, and the legaleffect of how the police might use the material disclosed.

Assuming without deciding that these requirements apply to a person who isnot a suspect, accused or target, but is merely an innocent bystander, in my view the evidence demonstrates that the police conductedthemselves so as to communicate to SH that they perceived her as a victim of the crime. I derive this from how the officers discussedtheir dealings with SH. She disclosed the information in that context. Had the police then used that information to prosecute SH, her

consent may have been legally insufficient; however, in the circumstances, where their use of the information was consistent with how the police treated SH, and what they communicated to her through that treatment, I am satisfied that her consent was properly given. [ 92 ] The accused relied on the Supreme Court’s decision in Reeves , and the clear position in law that a person cannot waive another person’s expectation of privacy.

The case law on voluntary disclosure by a recipient of an electronic communication makes it clear, however, that the courts are not allowing the disclosing party to waive the other party’s expectation of privacy. Rather, they permit the disclosing party to consent to the disclosure of their own information – that they received a communication – information over which they exercise control, a control known to the person who sent the communication. The effect of that disclosure may, if the sender does have an expectation of privacy, intrude upon the sender’s privacy.

But the intrusion is effected by a person who has an equal interest in, and right to, the information. It is not, as was the case in Reeves , Earle or Vey , disclosure by someone who had access to, but no legal interest in, the information. Conclusion [ 93 ] For these reasons, I dismiss RDC’S application to exclude the electronic communications on the basis that they were obtained through an unreasonable search and seizure contrary to s. 8 of the Charter . Any expectation of privacy enjoyed by RDC did not extend so as to prevent SH from disclosing what he had said to her.

Further, the totality of the circumstances in which the communications were sent, including the nature of the parties’ relationship and the location of the communications, preclude a finding that RDC had a reasonable expectation of privacy. Finally, even if RDC enjoyed a reasonable expectation of privacy, the police were entitled to review the evidence volunteered to them by SH. Heard on the 24 th , 25 th and 26 th days of October, 2022. Dated at the City of Calgary, Alberta this 30 th day of November, 2022. A. Woolley J.C.K.B.A.

Appearances: Aleksandra Simic for the Crown Jeanine Zahara for the Accused Appendix – Oral Reasons [1] I have set out my reasons in this case in writing and will provide those written reasons to counsel and to RDC today. Once this decision is no longer subject to a publication ban, I will also submit them to CanLII for publication, with these oral reasons forming an Appendix to that decision.

[2] The written reasons are my reasons for decision. They summarize the facts and law and provide a detailed explanation of my analysis. What I am going to say now is a very brief oral explanation for the benefit of RDC. [3] RDC is charged with three offences. Two arise from allegations that, in the early hours of January 13, 2020, he broke into the apartment of his former girlfriend SH and started fires.

The third arises from an allegation that, between December 15, 2019 and January 12, 2020, RDC uttered, conveyed or caused SH to receive a threat of death or bodily harm. [4] In support of its prosecution of these charges, the Crown seeks to rely on text messages and e-mails sent by RDC to SH, and a voicemail he left for her. RDC says that the police violated his s. 8 rights when they obtained the text messages, e-mails and voicemail.

He says that he had a reasonable expectation of privacy in those communications, and that they were obtained by the police without legal authorization or justification. [5] I agree with RDC that the subject matter of the search was the communications between him and SH – the text messages, e- mails and voicemail. I also accept that RDC had a direct interest in that subject matter. Further, I accept that RDC had a subjective expectation of privacy. [6] I do not, however, find that RDC’s expectation of privacy was reasonable.

In particular, I do not find that his expectation of privacy went so far as to prevent SH from sharing the communications with the police. I reach this conclusion for six reasons. [7] First, the right to privacy does not extend so far as to allow a person who made a communication to prohibit lawful disclosure by the person who received it. RDC could reasonably expect a third party not to intrude upon the conversation without proper legal authorization.

But his privacy interests do not allow him to forbid or prohibit SH from disclosing what he had said to her. [8] Second, while I have found that RDC had a reasonable expectation of privacy, he himself understood that that his expectation of privacy did not go so far as to prevent SH from disclosing what he had said. His text messages show that he knew, as does any participant in a private conversation, that privacy does not prevent disclosure by the person with whom he was communicating. [9] Third, the place of the communications obtained by the police was SH’s phone. SH forwarded the e-mails to the police.

This also decreased RDC’s expectation of privacy. [10] Fourth, the relationship between the parties at the time of the communications, on both December 15, 2019 and January 12, 2020, had broken down. This also constrains RDC’s expectation of privacy. I have approached my assessment of the messages in a context neutral way – that they are threatening does not in and of itself eliminate his expectation of privacy. However, the messages support SH’s statement to the police that the relationship was no longer functional, intimate or romantic. It had broken down.

RDC could not reasonably expect his ex-girlfriend not to disclose abusive messages sent by him following the conclusion of their relationship.

If anything, such disclosure was predictable, at least in relation to SH’s friends and family. [11] Fifth, the police knew and understood that this was the nature of the relationship between RDC and SH at the time they accessed the communications. [12] Sixth, while the Supreme Court’s decision in Marakah provided a framework for the accused’s argument, subsequent case law consistently finds that a person who sends a message does not have an expectation of privacy that extends to preventing the recipient from disclosing what was said.

A small minority of case law directly supports the accused’s position, but none that is both binding on me and analogous to the facts here. [13] In addition, even if RDC had a reasonable expectation of privacy, I am satisfied that the police acted reasonably in looking at the text messages and e-mail, and in reviewing the voice mail. Their review of that information did not violate s. 8.

I adopt the position of the Alberta Court of Appeal in King at para 8, “the police can presumptively look at most evidence provided to them without breaching s. 8”. [14] As such, I dismiss RDC’s application to exclude the electronic communications on the basis that they were obtained through an unreasonable search and seizure contrary to s. 8 of the Charter . Any expectation of privacy enjoyed by RDC did not extend so as to prevent SH from disclosing what he had said to her.

Further, the totality of the circumstances in which the communications were sent, including the nature of the parties’ relationship and the location of the communications, preclude a finding that RDC had a reasonable expectation of privacy. Finally, even if RDC enjoyed a reasonable expectation of privacy, the police were entitled to review the evidence volunteered to them by SH.