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POWERS OF SEARCH AND SEIZURE - Warrantless searches - Reasonable expectation of privacy

Friday, July 10, 2020 @ 6:15 AM  

Lexis Advance® Quicklaw®
Application by Morgan to exclude a text message conversation (TMC) from evidence. In October 2018, the complainant and Morgan were students. The complainant attended a Halloween party and became separated from her friends. Morgan found the complainant at the side of the road across from the party. She was intoxicated and vomiting. Morgan and the complainant ended up at Morgan’s parents’ house. The complainant alleged that Morgan sexually assaulted her there. The day after, the complainant began to text message Morgan, using her mother’s cell phone at first, and he replied. Some of the messages exchanged could have been interpreted as inculpatory. The complainant challenged Morgan’s decision to engage in sexual interactions with her while she was significantly intoxicated. Morgan asserted that the interaction was consensual but apologized to the complainant for what he acknowledged was an apparent mistake in judgment. The complainant made a complaint to the police and an investigation was launched. The complainant and her mother turned over their electronic devices to the police to assist in the investigation. The data on those devices was extracted by the police. Morgan took the position that he had a reasonable expectation of privacy in the TMC. He claimed standing and asserted that the search and seizure of the TMC violated his s. 8 Canadian Charter of Rights and Freedoms (Charter) rights. The Crown argued against a grant of standing for Morgan and took the position that he did not have a reasonable expectation of privacy in the contents of the TMC.

HELD: Application dismissed. The owners of the devices consented to the extraction and were supportive of the police taking possession of the contents of the devices. Since the extraction of the data occurred with the complainant’s consent, it was simply not relevant how expansive or extensive that extraction was. The role of the investigators in extracting the data was reactive and responsive to the complainant’s initiative. The sharing of the TMC by the complainant with the police in the circumstances of this case did not constitute an intrusive interference on the part of the state. It was not a search or a seizure. In any event, while Morgan enjoyed a subjective expectation of privacy in the TMC, his expectation was not reasonable. His claim for standing therefore had to fail. Even if the court had found a s. 8 Charter breach, the evidence would not have been excluded.

R. v. Morgan, [2020] O.J. No. 2330, Ontario Court of Justice, M.T. Poland J., May 27, 2020. Digest No. TLD-July62020010