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Text privacy case appears SCC bound

Thursday, September 17, 2015 @ 8:00 PM | By Michael Benedict

With text messages becoming an increasingly popular means of communication, the Supreme Court of Canada is likely soon to determine whether they attract the same high level of privacy protection awarded telephone conversations.

“This decision is destined for the Supreme Court — it is the next major search and seizure case,” said Toronto criminal lawyer Nader Hasan regarding R. v. Pelucco [2015] B.C.J. No. 1794, a split B.C. Court of Appeal judgment establishing Charter privacy rights in texts.

In its Aug. 21 judgment, the B.C. high court majority found that the sender of a text has a reasonable expectation of privacy over its contents, even after it is sent.

“Apart from criminality, there is nothing remarkable about the content or circumstances of the text conversation in the case before us,” Justice Harvey Groberman wrote. “Nothing in the situation suggests that the ordinary expectation that a text message exchange will remain private was displaced.”

The case involves an intercepted cocaine deal. Pelucco, the alleged seller, was in text communication with Manjit Guray, the alleged purchaser who was pulled over by police for erratic driving en route to Nanaimo, B.C. The police, suspicious about Guray, searched his car and found $38,000 in cash and a cellphone that contained the telltale texts. Assuming Guray’s identity, the police arranged through ongoing texts to meet Pelucco, who was subsequently arrested after they found one kilogram of cocaine in his trunk.

On the basis of the texts, the police obtained a search warrant for Pelucco’s house where they found 280 grams of heroin. At trial, Pelucco argued that the text messages could not be used as evidence because their capture violated his Section 8 Charter rights against unreasonable search and seizure. The trial judge agreed and granted an acquittal.

In its appeal, the Crown argued that while Pelucco may have had a privacy right in the communication process itself, he had no reasonable privacy expectation after the text was sent since the recipient could have, for example, forwarded the texts to someone else, or even posted them on a website for the world to see. Justice Groberman disagreed.

“I agree with the trial judge’s conclusion that Mr. Pelucco had a subjective expectation that his text conversation with Mr. Guray was private,” he wrote in a judgment concurred by Justice John Savage, and added that “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 justices also rejected the Crown’s argument that texts, because they are written communication, should be afforded less privacy protection than telephone calls. Recognizing that texts are a preferred means of communication among many, the majority found that, “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.”

In his dissent, Justice Richard Goepel argued the opposite.

“The privacy interest in a text message intentionally sent to other people to communicate information terminates at the time the message reaches the intended recipient(s),” he wrote.

Vancouver appellate counsel and University of British Columbia law school lecturer Nikos Harris said the ruling’s majority and dissent are well reasoned, and suggested Canada’s highest court will likely uphold the acquittal.

“The Supreme Court has been very cautious about subjecting conversation too easily to the access of law enforcement,” said Harris. “The stakes are incredibly high. This is one of the most important issues in our modern society— the struggle to apply notions of privacy to changing technology.”

North Vancouver criminal lawyer Elizabeth Lewis, who represented Pelucco on appeal, said the B.C. ruling, the first by an appeal court in Canada on privacy and texts, demonstrates that the justice system recognizes the need to keep pace with developing technology.

“This decision is an important step forward in recognizing how the world works,” said Lewis, managing partner at Cobb St. Pierre Lewis.

She added that the Crown’s position does not comport with how people communicate today. “When you move from phone to text, you don’t abandon the expectation of privacy, at least versus the state,” she said.

Hasan, counsel to Stockwoods and adjunct professor at the University of Toronto’s law school, said that “the majority was driven by the reality that texts are replacing telephone communications that, historically, have attracted a higher level of privacy protection. Moving from voice to text should not lead to a lower level of privacy.”

While acknowledging the reasonable expectation of privacy for texts, because of their written nature, may be somewhat limited, Hasan said it is not eviscerated.

“You may have abandoned some privacy rights to the recipient, but not to the state,” he said.

Meanwhile, a spokesperson for the Public Prosecution Service of Canada (PPSC) declined to say whether an appeal to the Supreme Court is being considered.

“The PPSC is currently reviewing the decision,” the spokesperson said. “The Crown has 30 days, from the time the decision was rendered, to decide whether or not it will seek to file a notice of appeal.