In a 2-1 majority, the B.C. Court of Appeal recently dealt with the issue of whether there is an expectation of privacy in texts that have been delivered. It appears that this is the first Canadian appellate court ruling on the issue – trial judges in the past have not been consistent on the privacy question.
Justice Harvey Groberman, writing for the majority stated that “the social norm is to expect that text messages remain private communications between the sender and recipient,” He concluded that are analogous to ephemeral cellphone conversations: They should only be accessed by police only under the authority of a search warrant. Although there is always a risk that a recipient might show or divulge a text message, he said that was distinctly different from the risk that police will intercept or seize it.
In this case, David Gabriel Pelucco was charged after allegedly arranging through text messages to sell one kilogram of cocaine.
Police arrested the buyer in 2010 and seized his cellphone. Using the device, police impersonated the buyer and arrested Pelucco in a parking lot behind the where they found cocaine, speed and a small sample of crack in the trunk of his car. Investigators then obtained a search warrant for his home and discovered 280 grams of heroin, a money counter and a bag containing over $50,000.
Pelucco argued the damning evidence should be tossed because the search of the would-be buyer’s text messages violated Pelucco’s constitutional rights.
In Pelucco’s original trial, the judge agreed that police had breached Section 8 of the Charter in accessing the messages, violating Pelucco’s right to be free from unreasonable search and seizure. He acquitted Pelucco of trafficking and possession.
The Crown appealed, but the appellate majority rejected the Crown’s argument that Pelucco had no control over the drug buyer’s cellphone and no reasonable expectation of privacy in the text messages recorded on it. Once his texts were received, prosecutors argued the buyer could easily have chosen to read them aloud, copy, print, forward or even post them online.
Groberman conceded that, but noted “a person’s right to privacy does not depend on there being no reasonable possibility of an intrusion on that right.” The justice continued: “For example, a person who shares a home with others will, to a greater or lesser degree, surrender some 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.”
Groberman said Pelucco had a right to expect police would not search the messages without proper authorization: “When they did so, they violated his reasonable expectation of privacy.”
Justice Richard Goepel disagreed, saying the privacy interest in texts was less like a telephone conversation and more akin to that in a letter. In a lengthy dissent, he said Pelucco had no reasonable expectation of privacy — especially since the buyer’s cellphone did not require a password and wasn’t locked. He drew upon Ontario decisions and added that interpretations of the U.S. Constitution’s Fourth Amendment, which prohibits unreasonable search and seizure, have found no expectation of privacy in email after it has reached the intended recipient. Goepel would have ordered a new trial.
It is expected that this ruling will be appealed to the Supreme Court of Canada as the next major search and seizure case. Whether one can no longer reasonably expect privacy in a text message that has been delivered is a question that the courts will certainly address again in the future.
I personally am cautious when sending texts and avoid any sensitive conversations – I am cognizant of the fact that the typed word can not only be misconstrued, but may end up being seen by someone unintended. Thus, I tend to relate better to the dissent’s reasoning in this case. In my view the “reasonable person” does not expect to enjoy Charter privacy rights in delivered text messages. What do you think?