Criminal Law

Pair of SCC decisions 'progressive,' in step with the digital age: Zita

By Staff

A Supreme Court of Canada (SCC) decision likening text message exchanges to a telephone conversation is a “progressive step” which clarifies many murky areas around the right to privacy, says Toronto criminal lawyer Jessica Zita.

Zita, an associate with Hicks Adams LLP, says the December 2017 judgment that sets out what is and isn't permissible in search and seizure is having a ripple effect through the courts and policing.

“It really was a progressive, forward-thinking decision for this digital age and not perhaps what some may have expected from the Supreme Court,” she tells Advocate “It’s been a good year with some sound, progressive decisions from the court around rights and freedoms.”

The court launched into the question of digital privacy with gusto, she notes.

“Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination?” Chief Justice Beverly McLaughlin said in her summary. “Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?”

It’s an important decision for all Canadians because it sets a fence around both ends of a text conversation and requires a search warrant to access the contents, Zita says.

Just getting a warrant for one of the phones and using the text messages to incriminate the other party is not enough, the court ruled — there must be a warrant for both devices.

“Really it helps clarify what is a reasonable expectation of privacy in terms of digital devices,” says Zita.

In this case, the warrant to search two homes where the phones were found, was invalid. Nonetheless, police tried to press charges against two people based on the content of the phones, she says.

Because one phone was covered by a warrant was immaterial, the court held, and the fact that the other phone was not covered by a warrant meant the conversations — the exchanges — were not admissible.

Supreme Court Justice Malcolm H. Rowe also weighed in on the issue of what is reasonable in an expectation of privacy saying, “The technological means by which we communicate continue to change. An approach based on the totality of circumstances responds to such change because the broad and general right to be secure from unreasonable search and seizure guaranteed by s.8 of the Charter is meant to keep pace with technological development.”

The decision is a step forward from a 2014 SCC ruling and “goes a long way to protect our rights to unreasonable search and allow us to exclude evidence improperly gathered,” Zita says.

“This is important for all of us, not just the defence bar," she adds. "Imagine if you had texted me with some incriminating messages and police searched your phone and then tried to charge me because of what they found on your phone. I have a reasonable expectation of privacy.”

In a related case released a few days earlier, Zita says the SCC also delves into the disconnect between what the Crown claims during the initial phases of a criminal trial and what it later asserts when the trial gets underway.

The court prescribed a four-step test to determine whether material garnered through search is, in fact, admissible and that will provide clarity for both defence and the police and, ultimately, the prosecution, she says.

"The Crown might say, 'We found this gun in this house and it’s yours.' But at the pretrial stage you have to show you have standing under s.8 to challenge the evidence," she says.

"But the Crown might say, 'You had nothing to do with the gun and, therefore, you have no standing to challenge it.' Then at trial, they’ll turn around and say 'Oh but it was your gun and we found it in your house.' They can’t have it both ways anymore."

Zita says this is another “progressive decision,” in codifying where s.8 of the Charter can be applied to protect against unreasonable search and seizure.

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