R. v. Jones

R. v. Jones
Collection
Supreme Court Judgments
Date
2017-12-08
Neutral citation
2017 SCC 60
Report
[2017] 2 SCR 696
Case number
37194
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Rowe, Malcolm
On appeal from
Ontario
Notes
SCC Case Information: 37194
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696
Appeal Heard: March 23, 2017
Judgment Rendered: December 8, 2017
Docket: 37194
Between:
Tristin Jones
Appellant
and
Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Ontario
Respondents
- and -
Attorney General of British Columbia, Director of Criminal and Penal Prosecutions, Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 82)
Côté J. (McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ. concurring)
Concurring Reasons:
(paras. 83 to 87)
Rowe J.
Dissenting reasons:
(paras. 88 to 119)
Abella J.
R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696
Tristin Jones Appellant
v.
Her Majesty The Queen in Right of Canada and
Her Majesty The Queen in Right of Ontario Respondents
and
Attorney General of British Columbia,
Director of Criminal and Penal Prosecutions,
Criminal Lawyers’ Association of Ontario,
Canadian Civil Liberties Association,
Samuelson‑Glushko Canadian Internet Policy
and Public Interest Clinic and
British Columbia Civil Liberties Association Interveners
Indexed as: R. v. Jones
2017 SCC 60
File No.: 37194.
2017: March 23; 2017: December 8.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Enforcement — Standing — Search and seizure — Evidence — Admissibility — Text messages — Accused seeking to exclude at trial text message records obtained by production order from telecommunications service provider — Whether accused has reasonable expectation of privacy in text messages stored by service provider and therefore standing under s. 8 of Canadian Charter of Rights and Freedoms to challenge production order — Whether accused permitted to rely on Crown theory for purposes of establishing subjective expectation of privacy.
Criminal law — Evidence — Production orders — Invasion of privacy — Interception of communications — Police obtaining order under s. 487.012 of Criminal Code for production of text messages stored on service provider’s infrastructure — Whether production order provides lawful authority for seizing stored text messages or whether wiretap authorization under Part VI of Criminal Code required for seizure to comply with s. 8 of Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c. C‑46, ss. 183 “intercept”, 487.012.
J was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co‑accused that were obtained under a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014 ). Prior to trial, J sought to exclude the text messages on the basis that obtaining them by means of a production order contravened his s. 8 Charter right. The trial judge found that J lacked standing to challenge the production order under s. 8 and he was therefore convicted. J’s appeal against conviction was dismissed.
Held (Abella J. dissenting): The appeal should be dismissed and the production order upheld.
Per McLachlin C.J. and Moldaver, Karakatsanis, Gascon and Côté JJ.: J had a reasonable expectation of privacy in the text messages stored by Telus and therefore standing under s. 8 of the Charter to challenge the production order. Whether a claimant has a reasonable expectation of privacy must be answered with regard to the totality of the circumstances of a particular case. Claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable.
In this case, the subject matter of the search is the electronic conversation between J and his co‑accused. J should have been permitted to rely on the Crown’s theory that he authored those text messages for the purposes of establishing his direct interest in their subject matter and his subjective expectation of privacy in the messages. An accused mounting a s. 8 Charter claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. This coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self‑incrimination.
It follows that J subjectively expected privacy in records of his electronic conversation found in the service provider’s infrastructure. Text messages are private communications. This is not in dispute in this case. Moreover, as the application judge found, J and his co‑accused used third‑party names so as to avoid detection or association with the text messages. This suggests that they intended their communications to remain private.
Finally, it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient. That is intuitive. One would not reasonably expect the service provider to share the text messages with an unintended recipient, or post them publicly for the world to see. In this case, it was therefore reasonable for J to expect that the text messages that he sent would not be shared by Telus with any parties other than the intended recipient, notwithstanding that he relinquished direct control over those messages. Neither the absence of a contractual policy, nor the fact that the production order targeted a phone registered to a third party, deprives J of that protection.
On the totality of the circumstances, therefore, J had a reasonable expectation of privacy in the text messages and standing to challenge the validity of the production order. However, J’s s. 8 Charter right was not breached because records of text messages stored on a service provider’s infrastructure were lawfully seized by means of a production order under s. 487.012 of the Criminal Code . Based on its plain meaning and read in context, the term “intercept” in s. 183 of Part VI of the Criminal Code does not encompass the production or seizure of historical text messages stored by a service provider. Historical text messages denote messages that have been sent and received, not those still in the transmission process. In this case, there is no question that Telus initially intercepted the communications between J and his co‑accused, presumably pursuant to an exception for service delivery purposes under s. 184(2) of the Criminal Code . However, in light of the statutory scheme’s distinction between interception, use and retention, and disclosure, it is clear that Telus’ subsequent storing and provision of the communications to the law enforcement did not constitute additional interceptions. Rather, Telus retained the intercepted communications under s. 184(3) and then disclosed them to the police as contemplated by s. 193(2) of the Criminal Code .
In this case, a Part VI wiretap authorization was unnecessary because the police did not seek an order authorizing the prospective production of future text messages. Nor is there any evidence that the production order resulted in the production of text messages that were still in the transmission process. Therefore, the search and seizure of J’s text messages were properly authorized by the production order provision in s. 487.012 of the Criminal Code , and did not breach J’s s. 8 Charter right.
Per Rowe J.: There is agreement with the majority that, as a matter of statutory interpretation, a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014 ) authorizes the police to request the disclosure of text messages from a service provider once those messages have been sent and received. Conversely, a Part VI Criminal Code authorization is required to intercept those messages as they are being transmitted. Given that the records of text messages are stored by the service provider in this case the moment they are sent, however, it makes little difference whether the police “intercept” them or simply obtain them through a production order immediately after they are sent. It appears that the police can in effect sidestep the requirements of Part VI by obtaining a production order immediately after the messages are sent. No settled view is expressed as to whether this anomaly reflects a failure of s. 487.014 to meet the requirements imposed by s. 8 of the Charter because this issue was not raised in argument.
Per Abella J. (dissenting): There is agreement with the majority that J had a reasonable expectation of privacy in his sent text messages and, as a result, had standing under s. 8 of the Charter to challenge the production order. But since the messages were obtained pursuant to a production order rather than a Part VI Criminal Code authorization, the search and seizure of those messages was not authorized by law and was therefore unreasonable.
The police obtained several production orders pursuant to s. 487.012 of the Criminal Code directed at the service providers Bell, Rogers and Telus. Only Telus stored the content of incoming and outgoing text messages for a period of time after the messages were sent and received. No text messages were obtained from accounts held with the other service providers. Telus’ unique storage practices, rather than the underlying principles in Part VI, led to the production of copies of historical text messages from the targeted Telus account, and the loss of J’s privacy protections available under Part VI. By prioritizing a temporal distinction to determine the level of privacy protection for text messages, Telus customers are left with less protection than those using other service providers who do not store copies of text messages simply because Telus stores copies of text messages that pass through its infrastructure. This means that the privacy rights of those who text depend on which service provider they use rather than on the fact that they are texting as a means of privately communicating.
The term “intercept” in s. 183 of the Criminal Code should be interpreted in the context of the broader Part VI scheme and the purpose it is meant to serve, namely, to prevent the state from acquiring private communications without lawful authorization and to protect the privacy interests inherent in the content of private communications. The Part VI protections should be available for historical as well as for prospective interception. The timing of the state’s request for information should not distort the communicative dimension of a text message exchange. Interpreting “intercept[ion]” of a private communication should focus on the content, not on the timing, of what the investigative technique seeks to access, or on the vagaries of the service provider’s technological practices.
When the police obtain copies of text messages from a service provider, they are acquiring a complete record of all electronic conversations that took place during a given period. The informational content acquired by the state is a complete record of all private communications in the given period. A singular focus on the historical dimension of the record should not detract from the content and character of this record. It is a record of a conversation that took place between individuals, albeit in an electronic format, that has been assigned a specific timestamp. This record may capture electronic conversations between several people innocently participating in an electronic conversation with the targeted recipient, as well as electronic conversations involving multiple participants engaged in a group text.
Since no Part VI authorization was obtained, the acquisition of copies of J’s historical text messages through the production order was invalid and breached J’s rights under s. 8 of the Charter .
The messages should be excluded under s. 24(2) of the Charter . The evolution of shifting technology has resulted in a correspondingly evolving jurisprudence which tries to keep pace with the impact of technology on constitutional rights. Where no case directly on point has been decided, the police have two choices: to use the jurisprudential gap as a rationale for being more intrusive, or to exercise greater caution before interfering with legislatively endorsed privacy rights. The better judicial approach is one that encourages conduct on the part of the police that errs on the side of being protective of the rights of the public, rather than one that endorses Charter breaches in deference to the mechanics of new technologies.
The impact of the Charter ‑infringing conduct on J’s Charter ‑protected privacy interests under s. 8 of the Charter was significant. Whether they take the form of a historical record or occur in real‑time, electronic conversations have the potential to reveal information going to the individual’s biographical core, including information which tends to reveal intimate details of the lifestyle or personal choices of an individual. While the police did not technically act in bad faith, their failure to seek Part VI authorization put public confidence in the administration of justice at serious risk. The impact of their conduct on J’s considerable, Charter ‑protected privacy interests under s. 8 of the Charter was significant, which outweighs the public’s interest in seeing a determination of J’s case on the merits.
Cases Cited
By Côté J.
Applied: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; considered: R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Shayesteh (1996), 31 O.R. (3d) 161; R. v. Duarte, [1990] 1 S.C.R. 30; referred to: R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Gauthier, [1977] 1 S.C.R. 441; R. v. Jir, 2010 BCCA 497, 264 C.C.C. (3d) 64; R. v. Hurry, 2002 ABQB 420, 165 C.C.C. (3d) 182; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Jones, [1994] 2 S.C.R. 229; R. v. White, [1999] 2 S.C.R. 417; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Pugliese (1992), 71 C.C.C. (3d) 295; R. v. Trapp, 2011 SKCA 143, 377 Sask. R. 246; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Belcourt, 2015 BCCA 126, 322 C.C.C. (3d) 93; R. v. McQueen (1975), 25 C.C.C. (2d) 262; R. v. Giles, 2007 BCSC 1147; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280; R. v. Finlay (1985), 23 C.C.C. (3d) 48; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657.
By Abella J. (dissenting)
R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Hoelscher, 2016 ABQB 44; R. v. Croft, 2013 ABQB 640, 304 C.C.C. (3d) 279; R. v. Carty, 2014 ONSC 212; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 13 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 99 , 164.2(1) (b)(ii), 164.3(4) (b), 182(2) (e), Part VI, 183 “authorization”, “intercept”, “private communication”, 183 to 196, 184, 184 to 192, 193, 462.34(6)(a)(ii), 462.41(3)(b), 462.42(1)(b), 487, 487.01(1)(c), 487.012 [ad. 2004, c. 3, s. 7], 487.014 [ad. 2014, c. 31, s. 20; formerly s. 487.012 ], 490.4(3), 490.5(1)(c).
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 3 , 5(3) , 7 .
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Fontana, James A., and David Keeshan. The Law of Search and Seizure in Canada, 9th ed. Toronto: LexisNexis, 2015.
Hutchison, Scott C., et al. Search and Seizure Law in Canada, vol. 1. Toronto: Carswell, 1991 (loose‑leaf updated 2017, release 7).
Magotiaux, Susan. “Out of Sync: Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015), 71 S.C.L.R. (2d) 501.
Penney, Steven. “The Digitization of Section 8 of the Charter : Reform or Revolution?” (2014), 67 S.C.L.R. (2d) 505.
Stewart, Hamish. “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335.
APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and LaForme JJ.A.), 2016 ONCA 543, 131 O.R. (3d) 604, 361 C.R.R. (2d) 350, 338 C.C.C. (3d) 591, 350 O.A.C. 274, [2016] O.J. No. 3737 (QL), 2016 CarswellOnt 10858 (WL Can.), affirming the accused’s convictions for firearms and drug trafficking offences and the pre-trial application ruling. Appeal dismissed, Abella J. dissenting.
Patrick McCann, Peter Mantas and Ewan Lyttle, for the appellant.
Nicholas E. Devlin and Jennifer Conroy, for the respondent Her Majesty The Queen in Right of Canada.
Randy Schwartz and Andrew Hotke, for the respondent Her Majesty The Queen in Right of Ontario.
Written submissions only by Daniel M. Scanlan, for the intervener the Attorney General of British Columbia.
Ann Ellefsen‑Tremblay and Daniel Royer, for the intervener the Director of Criminal and Penal Prosecutions.
Susan M. Chapman, Naomi Greckol‑Herlich and Bianca Bell, for the intervener the Criminal Lawyers’ Association of Ontario.
Christine Lonsdale and Charlotte‑Anne Malischewski, for the intervener the Canadian Civil Liberties Association.
Jill R. Presser and David A. Fewer, for the intervener the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
Gerald Chan, for the intervener the British Columbia Civil Liberties Association.
The judgment of McLachlin C.J. and Moldaver, Karakatsanis, Gascon and Côté JJ. was delivered by
Côté J. —
I. Overview
[1] The appellant, Mr. Jones, was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co-accused pursuant to a production order obtained under s. 487.012 (now s. 487.014) of the Criminal Code, R.S.C. 1985, c. C-46 (“Production Order ”). As in the courts below, the appellant challenges the Production Order under s. 8 of the Canadian Charter of Rights and Freedoms . He argues that law enforcement must obtain a “wiretap” authorization under Part VI of the Code to seize records of historical text messages from a service provider in order for the seizure to comply with s. 8 of the Charter .
[2] His appeal arises out of an Ottawa Police Service investigation into firearms trafficking in the Ottawa, Ontario area. Based on evidence gathered in that investigation, the police obtained the Production Order directing Telus to disclose stored records of any incoming or outgoing text messages on a particular Telus subscriber account associated with the appellant’s co-accused, Mr. Waldron. The targeted account was registered in the name of “Kurt Gilles”. There is no evidence as to whether Kurt Gilles exists or whether Mr. Waldron merely used that name as an alias for the purposes of his cellphone subscription.
[3] Telus complied with the Production Order and provided the requested records to the police. The records revealed a text message exchange (“Text Messages”) concerning the potential transfer of a firearm. The exchange occurred between the Gilles phone and a phone used by the appellant, but registered in the name of his spouse.
[4] Relying in part on the Text Messages, the investigators obtained a Criminal Code Part VI authorization (“First Authorization”) for a number of phones associated with the suspects. Communications intercepted under it were then used to obtain an additional Part VI authorization (“Second Authorization”). On the basis of those subsequent interceptions, search warrants were granted and executed. The fruits of those searches led to the appellant’s prosecution for marijuana trafficking and proceeds of crime charges. The firearm trafficking charges against him, on the other hand, were brought largely on the basis of the Text Messages obtained under the Production Order.
[5] Prior to the commencement of the trial, the appellant sought to exclude the Text Messages on the basis that obtaining them by means of a Production Order contravened his s. 8 Charter right. Additionally, he challenged the First and Second Authorizations, resulting search warrants and the admissibility of the evidence obtained on the basis of those authorizations insofar as they derived from the Production Order. The latter authorizations and search warrants are not directly at issue on this appeal. Only the Production Order — as lawful authorization — and the Text Messages — as evidence derived therefrom — are in question.
[6] In his s. 8 Charter application, the appellant led no evidence demonstrating that he authored and sent the Text Messages. Instead, he argued that he was entitled to rely on the Crown’s theory that he was the author of the Text Messages. Applying this Court’s decision in R. v. Edwards, [1996] 1 S.C.R. 128, the trial judge found that the appellant lacked standing to challenge the Production Order under s. 8 of the Charter . The trial judge also dismissed an application to re-open her original s. 8 ruling following the release of this Court’s decision in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, during Mr. Jones’ trial. In doing so, she reasoned that TELUS did not address the validity of a production order for obtaining records of historical text messages. The appellant was subsequently convicted of several firearms trafficking and drug trafficking offences.
[7] On appeal, the majority of the Court of Appeal upheld the trial judge’s decision regarding the s. 8 standing issue (2016 ONCA 543, 131 O.R. (3d) 604). That was dispositive of the appeal. The majority nevertheless went on to assess the lawfulness of the search at the second stage of the s. 8 inquiry and upheld the use of a production order to obtain records of historical text messages. In separate reasons, LaForme J.A. did not opine on the standing issue, but concurred with the majority’s holding regarding the lawfulness of the search. The Court of Appeal was therefore united in its disposition of dismissing the appeal.
[8] The appeal to this Court raises three questions. First, at his s. 8 Charter application, was the appellant entitled to rely on the Crown’s theory that he authored the Text Messages in order to establish his subjective expectation of privacy in them? Second, if so, was the appellant’s subjective expectation of privacy objectively reasonable such that he has standing to make his s. 8 claim? And third, did the Production Order provide lawful authority for seizing records of historical text messages located in the hands of a service provider?
[9] I would answer all three questions in the affirmative. I conclude that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. In this case, Mr. Jones should have been permitted to rely on the Crown allegation that he authored the Text Messages, and his subjective expectation of privacy in the subject matter of the search is accordingly established. Further, it is objectively reasonable for the sender of a text message to expect that a service provider will maintain privacy over the records of his or her text messages stored in its infrastructure. I conclude, however, that the appellant’s s. 8 rights were not breached because records of historical text messages were lawfully seized by means of a production order under s. 487.012 of the Code (now s. 487.014).
[10] For these reasons and the reasons that follow, I would dismiss the appeal and uphold the validity of the Production Order.
II. Analysis
[11] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” Its basic interpretive structure is well known and consists of two stages. First, the claimant must show that a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18). Second, the claimant must show that the search or seizure was itself unreasonable.[1] As a general rule, a Charter claimant must prove both the existence of a reasonable expectation of privacy in the relevant subject matter and the unreasonableness of the search or seizure of that subject matter in order to make out a breach of s. 8 (see R. v. Collins, [1987] 1 S.C.R. 265).
[12] This appeal engages both stages of the s. 8 inquiry.
A. Does the Appellant Have Standing to Challenge the Production Order?
[13] I turn first to the question of standing. Does the appellant have a reasonable expectation of privacy in the subject matter of the search? This question has always been answered with regard to the totality of the circumstances of a particular case (see Edwards, at para. 31; R. v. Wong, [1990] 3 S.C.R. 36, at p. 62). In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, Cromwell J. explained that, in the context of an informational privacy claim, four lines of inquiry may assist in guiding the required analysis (para. 18):
(1) an examination of the subject matter of the alleged search;
(2) a determination as to whether the claimant had a direct interest in the subject matter;
(3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
(4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
(See also Cole, at para. 40.)
(1) What Is the Subject Matter of the Search?
[14] First, properly characterizing the subject matter of the search is vital. As explained in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, where the state searches records of text messages, it is “the electronic conversation between two or more people” that it seeks to access (para. 19, per McLachlin C.J.). Following Marakah, then, the subject matter of the search here is properly characterized as the “electronic conversation” between Mr. Jones and the user of the Gilles phone.
(2) Does the Claimant Have a Direct Interest and Subjective Expectation of Privacy in the Subject Matter of the Search?
[15] In this case, the courts below held that the appellant’s s. 8 claim fails at the doorstep because he never established that the Text Messages were indeed his own. On appeal, we may readily infer that if the appellant authored the Text Messages, then he had a direct interest in their subject matter insofar as they were capable of describing aspects of his biographical core. As a factual matter, it is also uncontested that if the appellant authored the Text Messages, then he had a subjective expectation of privacy in records of them stored by the service providers involved in their transmission. Therefore, the real question dictating the result at the second and third steps of the above framework is whether the appellant should have been permitted to rely on the Crown’s theory that he was the author of the Text Messages for the purposes of establishing s. 8 standing. As explained below, I would answer that question in the affirmative.
(a) Should the Appellant Have Been Permitted to Rely on the Crown Theory for the Purposes of Establishing His Subjective Expectation of Privacy in the Text Messages?
[16] At trial, the Crown tendered the Text Messages as evidence that Mr. Jones offered to transfer a firearm, contrary to s. 99 of the Criminal Code . At his Charter application challenging their admission, Mr. Jones argued that he need not admit authorship of the impugned evidence in order to mount his s. 8 claim. Instead, he said that for the purposes of establishing his subjective expectation of privacy, he was entitled to rely on the Crown’s allegation that he is indeed the author of the Text Messages, without admitting as much.
[17] In reply, the respondent Crowns state, correctly, that the burden in a Charter voir dire is on the claimant, and that discharging that burden typically requires the claimant to present evidence. They say the appellant’s s. 8 claim must fail because the accused is not entitled to rely on the federal Crown’s theory in the voir dire, and “[t]here was no admission of [his] identity as the sender of the texts anywhere in the pre-trial motion record”.
[18] With respect, I would decline to endorse this position. It effectively creates a catch-22 for an accused in Mr. Jones’ shoes: admit that you are the author in the Charter voir dire, or forego the ability to challenge admission of the evidence tendered to prove that you are the author in the trial proper.
[19] Instead, I conclude that Mr. Jones should have been permitted to rely on the Crown’s theory that he authored the Text Messages for the purpose of establishing his subjective expectation of privacy in the subject matter of the search. As I explain below, this result coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self-incrimination.
[20] To begin, the subjective expectation requirement has never been “a high hurdle” (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37). And for good reason. Overemphasizing the presence or absence of a subjective expectation of privacy cannot be reconciled with the normative nature of the s. 8 inquiry. As Justice Binnie explained in Tessling, at para. 42:
The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society. . . . It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8 . Expectation of privacy is a normative rather than a descriptive standard. [Underlining added.]
[21] The idea here is simple: a Charter claimant’s subjective belief that Big Brother is watching should not, through the workings of s. 8 , be permitted to become a self-fulfilling prophecy. The importance of the subjective expectation element is therefore attenuated in the s. 8 analysis, and the evidentiary foundation required to establish that element is accordingly modest. A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire (see Patrick, at para. 37; Tessling, at para. 38; Cole, at para. 43). The modest evidentiary foundation necessary to establish one’s subjective expectation of privacy therefore reflects the notion that s. 8 ’s normative import transcends an individual claimant’s subjective expectations.
[22] This modest evidentiary foundation also aligns with the practical reality of criminal proceedings. For the defence, it may be a dangerous gambit to call an accused to the stand. That is equally true in a voir dire, insofar as an accused’s testimony may later be used for incrimination or impeachment purposes or result in tactical disadvantages. Therefore, to the extent that the subjective expectation element can be presumed or inferred in the circumstances, the law has not required an accused to assume the risks of testifying in order to prove that he subjectively expected privacy in the subject matter of the search.
[23] The potential risks of testifying or making an admission through counsel in a s. 8 voir dire are apparent in Mr. Jones’ case. An admission that he authored the Text Messages was tantamount to admitting the charged offence of illegally offering to transfer a firearm. Indeed, at trial, Mr. Jones was convicted because the Crown proved beyond a reasonable doubt that “a series of text messages . . . between Waldron and Jones demonstrate[d] a concerted effort to work together to offer to transfer firearms” (trial judgment, reproduced in A.R., vol. I, at pp. 42-102, at paras. 94 and 95-100). An admission that he was the author was therefore, in practical terms, an admission of both identity and the actus reus of the offence.
[24] I am mindful of the rule that evidence in the voir dire is not automatically admissible in the trial proper (see R. v. Gauthier, [1977] 1 S.C.R. 441, at p. 452; R. v. Jir, 2010 BCCA 497, 264 C.C.C. (3d) 64, at para. 10). Still, an admission at the voir dire can restrict the permissible scope of defence evidence and submissions at trial. If Mr. Jones admitted authorship of the Text Messages at the voir dire, his counsel would have been ethically barred from arguing that someone else had authored the Text Messages in the trial proper. In theory, he could have still held the Crown to its burden to prove authorship of the Text Messages (see, e.g., R. v. Hurry, 2002 ABQB 420, 165 C.C.C. (3d) 182, at paras. 1 and 3). But in practice, this presents an accused in Mr. Jones’ shoes with difficult tactical decisions. Should he admit authorship in the s. 8 voir dire in order to have a chance at holding the state to its Charter obligations? Or should he forego a s. 8 claim in order to more rigorously contest the Crown’s theory at trial? Perhaps more significantly, should he assume the risk that the admission could be used by the Crown for inculpatory or impeachment purposes?[2]
[25] The federal Crown submits these choices follow from the fact that the Charter is not a “tactical Bill of Rights” which permits the accused to have his cake and eat it too. With respect, I see the matter differently for three reasons.
[26] First, the Crown’s argument on this point cuts both ways. As the intervener Criminal Lawyers’ Association of Ontario argues, the Crown should not be permitted to say there is sufficient evidence proving Mr. Jones’ authorship of the messages beyond a reasonable doubt at trial, but argue that he has not discharged his burden on the balance of probabilities in the voir dire. The Crown is right to argue that it is the accused’s s. 8 motion. But that motion arises within the Crown’s prosecution. And it is the Crown, as a quasi-minister of justice, that is charged with ensuring the overall fairness of that prosecution. Therefore, as between the accused and the Crown, it is more fitting that the Crown be restrained from adopting inconsistent positions.
[27] Second — and on a more practical note — I respectfully reject the Crown’s argument that allowing the accused to rely on the Crown’s theory in his Charter application would be procedurally inefficient because the accused would not be tactically bound to his position at the voir dire. In this case, the trial judge had the benefit of at least the following on the s. 8 Charter claim:
(i) The Information to Obtain the Production Order listing Mr. Jones as the user of the cellphone from which the Text Messages were sent; and
(ii) A submission from the Crown that “the evidence is very clear that it is [Mr. Jones’ and Mr. Waldron’s] communication, but they haven’t said that”.
[28] At first instance, the s. 8 claim turned on the novel legal question that is now before this Court. It was not a factually driven dispute. In that situation, permitting the accused to rely on the Crown’s theory is more efficient than requiring the accused to call circumstantial evidence in an attempt to ground his desired inference.
[29] Third, requiring an accused to admit Crown allegations in order to have a shot at holding the state to its constitutional obligations under s. 8 sits uneasily alongside the principle against self-incrimination. The principle against self-incrimination is a principle of fundamental justice under s. 7 of the Charter and provides a “general organizing principle of criminal law from which particular rules can be derived” (R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 123, quoting R. v. Jones, [1994] 2 S.C.R. 229, at p. 249). It reflects the basic tenet that “the Crown must establish a ‘case to meet’ before there can be any expectation that the accused should respond” (R. v. White, [1999] 2 S.C.R. 417, at para. 41). Like s. 8, it is grounded in the value “placed by Canadian society upon individual privacy, personal autonomy and dignity” (Hart, at para. 123, citing White, at para. 43). However, requiring an accused to effectively admit Crown allegations as a pre-requisite to making full answer and defence through bringing a s. 8 Charter challenge creates a tension with the principle against self-incrimination. Indeed, this tension may well have resulted in Mr. Jones’ decision not to lead evidence going to his subjective expectation of privacy.
[30] In my view, however, this tension need not arise. Although the principle against self-incrimination is not a free-standing legal protection, it is to be considered in fashioning legal rules in the development of the common law and Charter law (see, e.g., Hart, at para. 123; White, at para. 45). As Iacobucci J. explained in White, at para. 45:
The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.
[31] What, if anything, does the principle demand in the instant context? It is clear that, to the extent possible, the elements of s. 8 — which in itself provides a fundamental principle of justice — should be informed by, and reconciled with, the principle against self-incrimination.
[32] In my view, that is best accomplished by concluding that counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to