Criminal Law – Search & Seizure – Social Media
Charged with sexual interference, sex assault and Internet ‘ the defendant first contacted the 13-year old complainant over using a social networking site on the Internet before meeting in person and subsequently had sex, after which the complainant didn’t want any further contact but communicated with the defendant again using a different name using an Internet messaging service. Appealing his conviction, the defendant argued, amongst other things, that his statement to police had not been voluntary, and that trial judge mishandled issues regarding violation of his rights under s. 8 of the Charter of Rights and Freedoms. Although his appeal was ultimately dismissed, the Court of Appeal ruled that he did have a subjective expectation of privacy in his communications, and in particular in the messages sent from his account: a password-protected, third-party message service gives rise to a reasonable expectation of privacy. The messages in question were only gathered by police using a search warrant. Further, the messages were between two people who intended to keep their communications private, and there was a reasonable expectation they would not be shared with or read by others. The messages also contained personal information, and even though they pertained to illegal activity he still had a reasonable expectation of privacy under the Charter. Although it would have been more straight-forward if that had been the end of the matter, the search was also found to have been unlawful because the police also failed to follow proper procedures and did not make full disclosure when they applied for the search warrant.