R. v. Gauthier, 2024 ONCA 621
[41] I accept the appellant’s argument that the jurisprudence supports a broad grant of protection to two-way electronic communications, and that the nature of the relationship between Dr. Morrison and the appellant (i.e., doctor and patient) was an important normative factor in assessing the reasonable expectation of privacy: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608. For example, in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, four justices held that there should not be a reasonable expectation of privacy in communications between adults and children who are strangers to them. This decision was summarized by Trotter J.A. in Campbell, at para. 63, where he acknowledged that an analysis of the relationship between the parties to a communication, in determining whether normative factors negate a reasonable expectation of privacy, is generally an important consideration.
[42] However, there is another competing normative consideration in this case, namely that the evidence before the trial judge established that the appellant was committing the act of criminal harassment in the communication he now claims to have been private. In Campbell, the police arrested an individual. An officer looked at the arrestee’s cell phone, and saw notifications for incoming text messages that were indicative of a drug transaction in progress. The police took the arrestee’s phone, and texted in-character to arrange to meet, surprise, and arrest the person texting with them, who turned out to be Mr. Campbell. At trial, Mr. Campbell asserted a reasonable expectation of privacy in his text exchange with the arrestee’s phone. The Crown argued that under Mills, there was no reasonable expectation of privacy. Trotter J.A. disagreed. He found that the facts were very similar to the Supreme Court of Canada’s decision in Marakah, and so presumptively there was a reasonable expectation of privacy. Ultimately, Trotter J.A. concluded that Marakah sets out a broad presumption of reasonable expectation of privacy over text messages, but that “Mills carved out an exception in circumstances where the electronic communications themselves constitute a crime against the recipient – in that case, the victimization of children”: Campbell, at para. 62.
[43] In Lambert, Paciocco J.A. also recognized that a Charter claimant may have no reasonable expectation of privacy “where electronic messages sent by the Charter claimant to the victim are used as the means of committing the offence charged, such as the offence of threatening to cause death or bodily harm, or criminal harassment”: Lambert, at para. 60.
[50] I conclude that s. 8 of the Charter was not triggered because the appellant had no reasonable expectation of privacy in the voicemail. My conclusion is fortified by the British Columbia Court of Appeal’s decision in R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151. There the court considered whether a person who sends a threatening text message has a reasonable expectation of privacy in that message. The court held that they do not. The court noted that the reasonable expectation of privacy is a normative standard and the court reasoned that on a normative perspective, “a person who threatens another has no right to expect that the person who has been threatened will keep the threat private”: Pelucco, at para. 61. The same holds true with harassing messages.
[51] In sum, the appellant had no reasonable expectation of privacy in the knowledge that Dr. Morrison had regarding the details disclosed in the message, and he had no reasonable expectation of privacy in a voicemail sent to Dr. Morrison that was the means of committing an offence with which he was charged in this case: criminal harassment: Lambert, at para. 60.[7] The reason why boils down to this: a reasonable person in Canada ought not to expect privacy in leaving a voicemail for a recipient that itself constitutes a crime.
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