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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure

Monday, April 23, 2018 @ 7:15 AM  

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Appeal by the accused, Beairsto, from a conviction for trafficking cocaine. Police investigated another individual, Ahmed, for drug trafficking. In the course of Ahmed's arrest, police seized his cell phone. The phone was not locked or password-protected. It was open to a messenger chat function featuring a conversation indicative of drug trafficking that was subsequently established as involving Ahmed and the accused. In the course of downloading the text conversation, the investigating officer was added as a party to the chat. The officer portrayed himself as an associate of Ahmed involved in the drug trade, and used Ahmed's account to send a text message to the accused confirming the association. Based on the conversations, police believed two parcels containing drugs and money were to be sent from Edmonton to the accused in Vancouver. Thereafter, the accused sent a text message confirming he shipped a kilogram of cocaine to an Edmonton address and provided a tracking number. The undercover officer confirmed the corresponding shipment of payment. A controlled delivery of the purported payment package led to the arrest of the accused. An incidental search resulted in seizure of the phone used to send the text messages. The trial judge found no breach of the accused's ss. 7 and 8 Charter rights arising from the police conduct and entered a conviction. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in concluding the accused did not have a reasonable expectation of privacy with respect to text messages sent to him by Ahmed, as he had no reasonable expectation of privacy related to the contents of Ahmed's phone. There was simply no evidence that the accused expected Ahmed to keep their messages private. The trial judge did not err in declining to characterize the police conduct as interception of private communications without prior judicial authorization. Prior jurisprudence established that no interception occurred where the originator was mistaken or deceived as to the identity of the person with whom they communicated. The convictions were thus affirmed.

R. v. Beairsto, [2018] A.J. No. 379, Alberta Court of Appeal, R.L. Berger, B.K. O'Ferrall and M.G. Crighton JJ.A., March 28, 2018. Digest No. TLD-April232018001