R. v. Findlay, 2023 MBPC 17

CITATION: R. v. Findlay, 2023 MBPC 17 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) B. McGill ) ) for the Crown – and – ) ) ) Chasity J. D. Findlay ) ) J. Weinstein for the Accused ) ) ) Reasons for Decision ) Delivered: April 5, 2023 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code, any information that could identify the witness shall not be published in anydocument or broadcast or transmitted in any way in proceedings in respect of this offence. A. Krahn, P.J.

INTRODUCTION [1] Chasity Findlay is charged with a number of sexual offences, alleged to have occurred between 2015 and 2017 with K., whowas at the time between the ages of 15 to 18. K. was a high school student and Ms. Findlay was his teacher in this time period. Ms.Findlay challenges the admissibility of text messages between her and K., exchanged when K. was an adult, which K. printed and handedto the police when he made a statement to police in 2021. Ms. Findlay asserts the seizure of the text messages by police, without awarrant, breached her Charter right to be free from unreasonable search and seizure.

She seeks exclusion of the text communications. [2] The Crown responds the police were performing their duties and there was no breach of

section 8 by police accepting aprintout of a text message exchange from K. [3] This is my decision on this Charter voir dire. The decision will begin with a brief factual overview, then a consideration ofthe legal principles and whether a reasonable expectation of privacy attached to the text messages, then whether the concepts of consentand the voluntary giving of the text messages to police amounted to a seizure and therefore eliminated the requirement for a searchwarrant. [4] Before I turn to the law and legal analysis, I will briefly review the agreed upon factual context. Ms.

Findlay was K.’s highschool teacher in grades 10 to 12. Between February 2015 and March 2018, K. was 15 to 18 years of age. It is alleged the two wereinvolved in an on-again-off-again personal relationship during this time. [5] On April 27, 2021, K. went to a police station to give a statement. He brought with him a journal, pictures and screenshots oftext messages exchanged with Ms. Findlay. The text message exchange occurred outside of the time frame of the criminal charges butthe Crown says they provide necessary context to the relationship between Ms. Findlay and K. The messages were exchanged betweenMs.

Findlay and K. on phone text messaging platforms, not on a public platform. [6] As the starting point for the analysis,

section 8 of the Charter protects locations or information for which there is a reasonableexpectation of privacy. If a reasonable expectation of privacy exists than police generally require police authorization prior to searchingand seizing potential evidence (see Hunter et al. v. Southam Inc., (SCC), [1984] 2 SCR 145) unless the search or seizureis otherwise authorized by law (see R. v. Collins, (SCC), [1987] 1 SCR 265, at paragraphs 22-23). [7] Ms.

Findlay bases her objection to the admissibility of the text messages, collected without a search warrant, primarily on theSupreme Court of Canada’s decision in R. v. Marakah, 2017 SCC 59. In Marakah, the Court held a person retains a reasonableexpectation of privacy in messages sent to a recipient, when retrieved from the recipient’s electronic device. The factual context in

Marakah is important. Marakah and his co-accused, Winchester exchanged text communications about illegal firearms trafficking. The messages were retrieved from both Marakah’s cell phone, seized from his residence and Winchester’s cell phone, seized from his residence. As a result of a finding the warrant for Marakah’s residence was invalid, the Crown sought to rely on the messages retrieved from Winchester’s cell phone, against Marakah. The Crown argued Marakah had no reasonable expectation of privacy on the messages resident on Winchester’s phone, and therefore did not have standing to challenge that evidence.

The majority concluded Marakah did retain a reasonable expectation of privacy and did have standing to challenge the search of Winchester’s phone. The Crown conceded, if Marakah had standing, there was an unreasonable search of Winchester’s phone. The majority excluded the evidence of the text exchange.

This decision greatly expanded the scope of the reasonable expectation of privacy of electronic communications and has lead to divided cases on how the principles elaborated in Marakah can be applied in other contexts, such as the one before me. [ 8 ] The Supreme Court said whether a reasonable expectation of privacy arises is dependent on a fact specific inquiry. The Court noted not all electronic communications will attract an expectation of privacy ( Marakah at para. 5, 55 ).

A court should consider the following questions when faced with the question of whether a communication gives rise to a reasonable expectation of privacy ( Marakah at para. 11 ): 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? [ 9 ] As will be seen below, courts generally agree on affirmative responses for the first three questions when it comes to electronic communications based on guidance already provided by the Supreme Court. The area for divergence in the case law is on the fourth question, whether an expectation of privacy is objectively reasonable. The Supreme Court has explained this question involves a normative assessment and includes consideration of whether society values privacy in the place, technique or information at issue (see R. v.

Orlandis-Habsburgo , 2017 ONCA 649 at para. 42 ; Marakah at para. 53 ). [ 10 ] Another fact scenario presented itself to the Supreme Court in R. v. Mills , 2019 SCC 22 . The police created an online profile of a 14-year-old girl. Mills was charged with internet luring after he engaged in a series of text communications with the 14-year-old female profile created by the police. Mills was arrested when he appeared at an agreed upon meeting spot in a park. The police recorded the text conversation using screen capture software.

The investigative technique was conducted without a warrant or prior judicial authorization. Mr. Mills challenged the police capture of his communications with the fictitious 14-year-old as breaching his

section 8 right to be free from unreasonable search, as it was done without prior judicial authorization. The majority of the Court concluded

section 8 was not infringed because prior judicial authorization was not required. The Court held it was not objectively reasonable to claim an expectation of privacy, when an adult stranger is communicating with a child on the internet. Police knew from the outset the adult and child were not known to each other, as they created the child’s profile. Since there was no reasonable expectation of privacy in these circumstances, there was no unreasonable search in the use of this technique. [ 11 ] Justices Wagner and Karakatsanis concurred in the result but for different reasons.

They concluded when undercover officers communicate with persons there is no search or seizure, as one cannot expect privacy from the person with whom you are communicating. [ 12 ] Justice Moldaver held both sets of reasons provided a basis to find no reasonable expectation of privacy. [ 13 ] Ms. Findlay distinguishes the circumstances in this case from Mills. The communications at issue before me were exchanged by K. and Ms. Findlay as adults, when they were well known to each other. Ms.

Findlay argues an intimate relationship and communications between adults is one which should attract constitutional protection – as it did in Marakah . She emphasizes the assessment of a reasonable expectation of privacy must stay content neutral. She argues, in these circumstances she did have a reasonable expectation of privacy and the police should not have looked at the messages, in the absence of a warrant or prior judicial authorization. [ 14 ] Ms. Findlay relies on R. v. Mootoo , 2022 ONSC 367 .

The Court in Mootoo found a text message exchange did give rise to a reasonable expectation of privacy and a police warrantless search of the complainant’s device was a breach of Charter

section 8. The evidence from the complainant’s phone was excluded. In Mootoo the complainant was 15 years old when she met the accused online. The complainant went to the accused’s apartment where she said she was sexually assaulted. She continued to communicate with the accused. She went to the police with her phone, gave police permission to extract the communications from her phone and gave permission for the police to use her profile to contact the accused.

Police, posing as the complainant, exchanged hundreds of messages with “Jay”, alleged to be the accused. [ 15 ] In my view, there is a significant factual difference between Mootoo, with active police involvement in the communications, and the facts before me. The police in Mootoo were not just passive recipients of text communications provided by the complainant. The Court in Mootoo distinguished the facts before it (at para. 113) from those where the police were a passive recipient of information provided by a complainant of communications already in existence, such as in R. v.

Phagura , 2019 BCSC 1638 . [ 16 ] The circumstances in Phagura and a number of other authorities ( Bear-Knight and King ) are more akin to the facts before me.

I will review the facts of each briefly. [ 17 ] In Phagura , the complainant, M.K. had a text exchange with Mr. Phagura, shortly before and after she said she was sexually assaulted. The complainant was living in the home of Mr. Phagura while she was attending university. She reported the incident to the police who took photographs of the text exchange on her phone, amounting to three pages of screenshots. Justice Crabtree found in the circumstances before him there was no reasonable basis for an expectation of privacy, from an objective perspective. He relied on R. v.

Pelucco , 2015 BCCA 370 , where the Court said, “Once normative elements of reasonableness are recognized, however, it becomes clear that a person who threatens another has no right to expect that the person who has been threatened will keep the threat private” (at para. 61).

In considering the circumstances, Justice Crabtree relied on the complainant willingly handing over her phone to the police; the communications from the accused were meant to silence the complainant; and the fact the sender could not have “absolute confidence” the communications would not be shared by the complainant. [ 18 ] Justice Crabtree went on to consider the alternative argument. Even if Mr. Phagura could establish a reasonable expectation of privacy, was the search otherwise authorized by law.

The Crown argued the seizure was authorized by law because M.K. had consented to the search of her phone, a place where there are overlapping privacy interests in the communications. Justice Crabtree found the consent of M.K. was valid and sufficient for the police to obtain a copy of the text messages, without a warrant. [ 19 ] In R. v. Bear-Knight , 2021 SKQB 258 , the complainant reported a sexual assault to the police. The day after the alleged sexual assault, the accused sent an apologetic message to her on Facebook. The complainant took a screenshot of this message and provided it to the police. Mr.

Bear-Knight moved to have this message excluded as a violation of

section 8. After a thoughtful review of a number of authorities, including Marakah , Mills, King and Phagura , the Court concluded the accused’s expectation of privacy in the Facebook message was not objectively reasonable. The relationship between the accused and complainant was less than 24 hours old so there would be little basis to believe she would not share the message with others and the accused did not ask her to keep it private. The message was an expression of concern and regret.

These two factors lead the Court to conclude there was no objectively reasonable basis for an expectation of privacy. [ 20 ] The Court further concluded the complainant’s actions in taking the screenshot and voluntarily providing it to the police did not create state action protected by

section 8 ( Bear-Knight at para. 53 ): [T]he complainant had every right to provide the police with the screenshot of the message she received. When she did so, she expressly consented to the police taking the possession of it. In this context, there is some absurdity in the notion that the police should be expected to obtain a warrant to collect evidence in the lawful possession of a person who wishes, freely and voluntarily, to provide the evidence to the police without a warrant. [ 21 ] In R. v. King , 2021 ABCA 271 , the Court considered a scenario where the accused’s wife, Ms.

Liu, suspecting infidelity, surreptitiously secured the accused’s password and accessed his electronic devices. She did not find evidence of infidelity but found child pornography instead. Ms. Liu photographed some of the images, saved them on a USB flash drive and gave the USB flash drive to the police. The police viewed the images on the USB flash drive and used that information to obtain search warrants, resulting in further seizures of child pornography. The Court held Ms.

Liu was not a state agent so her actions did not become state actions, simply by her turning the flash drive over to the police, and the police looking at the flash drive.

The Court found that “[e]xamining such information is clearly ‘authorized by law’, as the investigation of possible crimes is one of the core duties of the police service” ( King at para 16). [ 22 ] In King , the Court relied on the following passage by Justice Doherty in Orlandis-Habsburgo at paragraph 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.

The Alberta Court of Appeal in King noted the Supreme Court of Canada referred to Orlandis-Habsburgo in both R. v. Reeves , 2018 SCC 56 and Marakah and did not express any doubts about it. [ 23 ] Ms. Findlay relies on R. v. C.M. , 2022 ONCJ 372 and asks me to conduct a similar type of analysis and come to the same conclusion. C.M. was alleged to have communicated with J.M., his ex-stepdaughter, in a manner to facilitate her sexual exploitation. J.M. and her mother went to the police to make a statement.

The police took J.M.’s phone, with J.M. and her mother’s express consent, to search for the communications exchanged between J.M and C.M. The Court concluded, the relationship between J.M and C.M. was one that warranted constitutional protection because they had known one another for a long period of time. This fact distinguished the facts from that in Mills . In applying a content neutral assessment to the facts, there was nothing inherently exploitive about a relationship between a step-father and step-daughter.

The Court concluded privacy should be fostered and protected in communications between a 15-year-old and their step-parent. Therefore, C.M. had established he had a reasonable expectation of privacy in the communications retrieved from the complainant’s phone. [ 24 ] The Court rejected the Crown’s argument the valid consent given by J.M. and her mother authorized police to search for and retrieve the messages on J.M.’s phone.

The Court relied on Reeves where the Supreme Court found the police should have obtained a search warrant for the search of a computer, even though the accused’s spouse had consented to the search of the shared computer. In Reeves , the Court held a person retains a reasonable expectation of privacy on a shared computer. [ 25 ] I distinguish the facts in C.M. from those before me. In C.M. the police took the phone and conducted a forensic analysis of the phone in an attempt to retrieve messages that J.M. had deleted and to retrieve a complete copy of all communications between C.M. and J.M. exchanged on Facebook.

Again, as in Mootoo , the police were actively involved in searching and retrieving the electronic exchange.

[26] Let me turn then to the analysis of the circumstances in this case, applying the principles set out by the Supreme Court. Thesubject matter of the alleged search was the electronic conversation between Ms. Findlay and K. The Supreme Court has said courtsshould take a robust, functional and broad approach to the question (Marakah at para. 15). What the police were really after was theconversation between K. and Ms. Findlay. Ms. Findlay has a direct interest in that conversation because she was the sender of themessages, messages which were intended only for K.

The subjective expectation of privacy is meant to be a low bar. Ms. Findlay hasfiled an affidavit explaining she expected the messages with K. to remain private. As the Supreme Court noted in Marakah, a privatelyexchanged communication between two people can and is likely to reveal personal or biographical information (Marakah at para. 32). Areview of the filed text messages in this case, does reveal an intimate, personal conversation. I conclude the evidence establishes Ms.Findlay had a subjective expectation of privacy in the text messages with K. [27] The more difficult question is whether Ms.

Findlay’s subjective expectation of privacy was objectively reasonable. InMarakah, the Court said the following factors can be considered: “(1) the place where the search occurred; (2) the private nature of thesubject matter . . ; and (3) control over the subject matter” (at para. 24). This was a personal conversation between K. and Ms. Findlay,captured on K.’s device. A conversation between two adults involved in an intimate relationship does have the potential to revealpersonal or biographical information. While the messages were printed from K.’s device, the inability of Ms.

Findlay to control thefurther distribution of the messages does not eliminate her expectation of privacy, from an objective point of view (see Marakah at para.40). [28] So I conclude, Ms. Findlay did have an expectation of privacy, albeit a reduced expectation of privacy, given her inability tocontrol what K. would do with the messages, in the messages present on K.’s phone. However, this does not end the matter.

Thequestion then becomes, did the police have the authority to accept copies of the messages from K. without a warrant, even though Ms.Findlay had an expectation of privacy in the text communication. [29] I find, like the risk that someone will overhear a private conversation between two people (see R. v. Duarte, (SCC), [1990] 1 SCR 30), a witness can turn over to police copies of messages sent to them (as in Phagura and Bear-Knight). The policewere allowed to accept from K. the text messages he had printed from his own device.

The Supreme Court recognized this in Reeves aswell, “the tattletale risk is one that is reasonable to ask citizens to bear in a free and democratic society” (at para. 42). I find thesemessages were turned over voluntarily by K. who was expecting they would be used in a police investigation, since he arrived at thepolice station with the messages in hand. The police did not need to engage in the artificial act of squeezing their eyes shut in order forthem to write an information to obtain a search warrant, to be able to look at these messages.

The messages were turned over with theconsent of K., something authorized by law. I adopt the conclusion of Professor Penney, “Where two (or more) people have a sharedexpectation of privacy over a domain, … it will not always be reasonable for one to expect that another cannot voluntarily permit policeto search it” (see Steven Penney, Consent Searches for Electronic Text Communications: Escaping the Zero-Sum Trap (2018), 56Alberta Law Review 1, at pages 9-10). [30] Alternatively, I also find the turning over of text messages in the possession of K. did not amount to a seizure.

I adopt thereasoning of Professor Simon: But even if the person who sends a text message has a reasonable expectation of privacy, it does not follow that the police can haveaccess to it only when they are executing a warrant that expressly places it within the ambit of the search. Generally, when the policereceive evidence from someone who has lawful possession or custody of it, and who is not under any statutory obligation to withhold it,section 8 of the Charter does not apply, because there has been no ‘search’ within the meaning of

section 8. As the Court explained in Rv Law, ‘[T]he principal purpose of s. 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State’. 98 Similarly, in R v Gomboc, the Court contrasted ‘the voluntary cooperation of a private actor with the police’ against a request,by police, that an electric utility install a device to record a consumer’s power usage’; the latter, the Court explained, ‘constitute[d] a search that infringes s. 8 of the Charter’. 99 The thrust of these statements is to show that a ‘search’ is precisely analogous to a ‘seizure’,within the meaning of

section 8. In R v Colarusso, the Court defined a seizure as ‘the taking of something from a person by a public authority without that person’s consent’. 100 It is the act of a public authority that makes the appropriation a seizure. Consequently, asvarious courts have held, when someone ‘obtain[s] … personal information … as a private citizen’ and ‘provide[s] the information … of her own volition’ to a state actor, there has been no seizure. 101 Analogously, when a private individual voluntarily provides a letter or atext message to the police, there has been no search.

In that case, the state has not intruded on the claimant’s privacy interests, andtherefore even a heightened privacy interest in the communication will not help to justify its exclusion. Footnotes 98 R c Law, 2002 SCC 10, at para 15 (emphasis added). 99 R v Gomboc, 2010 SCC 55, at para 104. 100 R v Colarusso, (SCC), [1994] 1 S.C.R. 20, at para 30 (citing R v Dyment, (SCC), [1988] 2 S.C.R.417). 101 R v McBean, 2011 ONSC 878, at para 19 (citing Colarusso) (Simon Stern, Textual Privacy and Mobile Information (2018), 55 Osgoode Hall LJ 398 – 439, at pages 42-43.

Emphasis in original.) [31] The Charter protects citizens from actions of the state. K. was not an agent of the state when he turned over the textcommunications. Therefore when he handed over printed copies of messages retrieved from his personal device, the police acceptance of

this information did not amount to a search or seizure. [ 32 ] I conclude the following: i. Ms. Findlay did have a reasonable expectation of privacy in the text communications she sent to K., resident on his electronic device; ii. The consent of K. in turning over those communications to the police, where the police were passive recipients of the information, allowed the police to look at those communications without a warrant, without infringing

section 8 of the Charter ; iii. Alternatively, the voluntary handing over of information to the police, where the police were passive recipients of the information, did not amount to a search or seizure such as to engage

section 8 of the Charter . Therefore, there was no breach of

section 8 of the Charter and there is no need to consider section 24(2) of the Charter . Original signed by Judge A. Krahn A. Krahn, P.J.