In a split 2:1 ruling released on August 21, 2015, the British Columbia Court of Appeal held that a sender has a reasonable expectation of privacy in a text message that has been delivered to a recipient’s cell phone. Although the sender assumes the risk that the recipient might disseminate it further, there is nonetheless a reasonable expectation that the police will not search and seize the text messages on the recipient’s phone without a warrant. The majority opinion thus resolved an important informational privacy issue in favour of the sender’s residual privacy interest in delivered electronic communications. Here’s the story.

On November 12, 2010, David Pelucco concluded a deal by text messages to sell a kilogram of cocaine to Manjit Guray in the parking lot behind the Nanaimo Rugby Club on Vancouver Island. Unknown to Pelucco, Guray was stopped by the police during the text conversation on his way to the parking lot. The police searched Guray’s vehicle without a warrant and found his cell phone. The phone displayed a series of text messages about the drug deal. The police continued the text conversation from Guray’s phone and went to the parking lot behind the Rugby Club where they arrested Pelucco and seized his cell phone. They also seized cocaine and methamphetamine found in the trunk of Pelucco’s vehicle. Based on the record of the text conversation, the police obtained a warrant to search his residence where they located heroin and $57,550.

Pelucco was charged with simple possession of the methamphetamine and possession of the cocaine and heroin for the purpose of trafficking under ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act. He brought a motion at trial for the exclusion of evidence under s. 24(2) of the Charter of Rights asserting that the police did not have lawful authority to seize Guray’s cell phone. He acknowledged that he did not have standing to rely upon the breach of Guray’s Charter rights but argued that the police violated his own right to be secure against unreasonable search and seizure under s. 8 of the Charter when they read the text messages he sent to Guray. The trial judge agreed and concluded that there was no lawful basis for Pelucco’s arrest. He excluded the evidence found in Pelucco’s trunk that was seized incidental to the arrest. He also excluded the evidence seized from Pelucco’s residence as that search could not have been authorized without the text messages. Pelucco was acquitted.

In the ruling reported as R v Pelucco, 2015 BCCA 370 Justice Harvey M. Groberman, in the majority opinion, held that Pelucco had a subjective expectation that the text messages he sent to Guray were private, at para. 53: “It would strain credulity to suggest that a reasonable person would have engaged in such a conversation if they thought that the messages would be shared with others.” The real question was whether Pelucco’s belief that his conversation was private was objectively reasonable. After characterizing the objective question as engaging a normative assessment of the reasonableness of a privacy claim, at paras. 58 and 63, Justice Groberman went on to conclude that text messaging has much in common with telephone conversations, at paras. 64-8:

“It is typically carried out between two individuals. While a written record on the text conversation is produced, it is not usual for the conversation to be printed, archived, or forwarded to others. In ordinary circumstances, the sender and recipient expect the record to be transitory, and not to be shared.

While there will be situations in which the content of the text message or the situation negative these ordinary expectations, it seems to me that the social norm is to expect that text messages remain private communications between the sender and recipient.

It is true that once a text message has been delivered to the recipient, it will, as the Crown argues, cease to be under the exclusive control of the sender. With respect to the recipient’s copy of the message, it is the recipient who will be in a position to keep it private or to disseminate it further. The sender, therefore, cannot have absolute confidence that the message will remain private. Much will depend on the nature of the message, the relationship between the sender and the recipient, the character of the recipient, and the circumstances in which the message is received.

These factors, however, do not necessarily impinge on the question of whether, for s. 8 purposes, the sender has a reasonable expectation of privacy in the message. A person’s right to privacy does not depend on there being no reasonable possibility of an intrusion on that right. For example, a person who shares a home with others will, to a greater or lesser degree, surrender some privacy. In an intimate setting, there may, in fact, be a limited sphere of absolute privacy. Even in such a setting, however, the person retains a reasonable expectation that his or her private affairs will be free from state intrusion. A person’s home remains his or her castle even if that castle is shared with family members or other residents.

The Crown’s position on this appeal – effectively that a sender never has a reasonable expectation that a message will remain private after delivered to a recipient’s device – does not, in my view, comport with social or legal norms. A sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient.”

The dissenting opinion of Justice Richard Goepel was based on a strict application of the test in R v Edwards, [1996] 1 SCR 128. That is – the inability of the sender to ultimately regulate and control the dissemination of the content of a communication that was voluntarily sent to another person is dispositive of the issue once it is received by that person. When Justice Goepel characterized the question as rooted in the Edwards property-based test, his analysis was driven away from the normative inquiry whether text messaging as a medium of communication is one that Canadians expect to be confidential. Relying on Fourth Amendment doctrine in American jurisprudence Justice Goepel concluded, at paras. 108 and 112, that the contemporaneous record created by text messages makes them similar to letters and emails. For example, in Ray v United States Dept of Justice, 658 F.2d 608 (8th Cir 1981) it was stated at p. 610 that, “[t]he reasonableness of one’s privacy expectations would certainly be undermined by the act of relinquishing control.” Justice Goepel thus concluded, at paras. 114-5, that the privacy interest in a text message terminates at the time the message reaches the intended recipient:

“…[W]here a person voluntarily communicates information to a third party using a method of communication that creates a contemporaneous record and that message reaches its intended recipient, the autonomy interest underlying our s. 8 understanding of privacy is fully realized (see e.g., Hunter v Southam at 159, R v Plant, [1993] 3 SCR 281 at 293, and Tessling at para. 63). This approach derives from the conceptual framework underpinning informational privacy in text messages in our s. 8 jurisprudence, i.e., the ‘wider notion of control over, access to and use of information, that is, ‘the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others’: Spencer at para. 40. This view is predicated on an ‘assumption that all information about a person is in a fundamental way his own, for him to communicate or retain…as he sees fit’: see Tessling at para. 23 and Spencer at para. 40.”

The flaw in Justice Goepel’s application of the property-based control principle lies in his failure to consider the restricted purpose doctrine in R v Dyment, [1988] 2 SCR 417 that was affirmed in R v Spencer, [2014] 2 SCR 212 at para. 40, and that he cited at para. 124. As Justice Gerald La Forest said in Dyment at p. 429-30, even though information is communicated, and can no longer be thought of as secret, “…situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.” (See also: R v. Duarte, [1990] 1 SCR 30, at p. 46)

The restricted purpose doctrine in Dyment is still the law. The answer to the dissent of Justice Goepel is therefore simply this. When Pelucco communicated with Guray on their cell phones, the text messages were sent for the purpose of a drug deal. His reasonable expectation was that the text messages would remain confidential and restricted for that purpose. That the purpose was illegal is immaterial to the privacy interest that is constitutionally protected. The text messages were not divulged for the purposes of the state to be seized from Guray’s cell phone without a warrant. The search and seizure of the text messages by agents of the state thus violated the personal autonomy of the individual. Contrary to the dissenting opinion of Justice Goepel, in the context of informational privacy and electronic communication, the autonomy interest is not fully realized at the moment of reception.

The dissent in Pelucco is also another good example of the danger inherent in the Edwards test that has plagued the development of Charter s. 8 jurisprudence by its adherence to the elements of control and presence at the time of a search. A reconsideration of Edwards by the Supreme Court of Canada is long overdue. As Justice Thomas Cromwell emphasized in Spencer, at para. 15, Supreme Court jurisprudence has emphasized the need for a purposive approach to Charter s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfillment and autonomy as well as the maintenance of a thriving democratic society.