Legal tests around privacy speak of a “reasonable expectation” of privacy. As we become more and more aware of the multiple forms that tracking takes and the multiplicity of them with which we engage in a given day, how do we retain a reasonable expectation of privacy? On top of that, government surveillance and private sector data mining are increasing and intersecting, and this too raises the question of the reasonableness of any expectation of privacy. Is there is some kind of knowledge saturation point after which holding any expectation of privacy is presumptively unreasonable?
The Case: R. v. Pelucco, 2015 BCCA 370 (CanLII), http://canlii.ca/t/gkrd1
The accused was arranging, through text messages, to sell one kilogram of cocaine to Mr. Guray, when the police arrested Mr. Guray and seized his cellphone. Posing as Mr. Guray, they used his cellphone to arrange via text message to meet the accused and then arrested him. Police found drugs in his vehicle, and obtained a search warrant to search his residence, where more drugs were found. He was charged with three drug offences. At trial, he successfully applied to have all evidence excluded, contending that Mr. Guray had been unlawfully arrested, and that the search of the text messages on Mr. Guray’s cellphone violated his own right to be secure against unreasonable search and seizure. The Crown appealed, arguing that because the accused had no control over Mr. Guray’s cellphone, he had no reasonable expectation of privacy in the text messages from him that were recorded on it.
Justice Goepel, in his dissenting opinion in R v. Pelucco takes on Mr. Pelucco’s expectation of privacy in text messages that he had sent, as well as the larger question of whether any expectation of privacy could be reasonable in any circumstances. Shutting down the suggestion that increased public knowledge and experience should somehow negate the reasonable expectation of privacy, he states that “the expectation of privacy is not meant to be a factual description of whether Canadians expect to be free from interference from the state, such that the state could reduce subjective expectations of privacy solely through adopting sufficiently invasive techniques.” Building on this, and citing Tessling and Patrick, he puts forward
…the self-evident principle that the government cannot create an intrusive spying regime, diminishing Canadians’ expectation of privacy as a result, and claim that its conduct does not offend the constitution because Canadians, due to the serious invasion of privacy, no longer expect their affairs to remain private from government agents.
Admittedly these points are made in dissent, but this analysis is not key to his dissent, nor does it stand in opposition to the majority decision. Although the dissent and majority do ultimately differ in their interpretations of the reasonableness of Mr. Pelucco’s expectation of privacy, that difference is not grounded in a limiting of reasonableness due to common expectations.
Both majority and dissent, then agree that Mr. Pelucco himself had a (subjective) expectation of privacy, although they differ when it comes to the question of whether his individual belief was in fact objectively reasonable – the majority working from the assumption that a sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient, while the dissent concluded instead that once the text message was received by Mr. Guray, Mr. Pelucco lost the ability to control what was done with or to it and therefore couldn’t reasonably have had an expectation of privacy.
In the end, the case is resolved as follows à (1) it is objectively reasonable that a person would expect that a text message that they sent will remain private in the hands of its recipient; (2) in the actual facts of this situation there is nothing unusual or remarkable about the content or circumstances of the text conversation that might contradict or contraindicate this expectation of privacy; and thus (3) the expectation remains.
I am pleased that the criminal aspect of this has not swayed the analysis – that the Wong recognition that whether or not persons have a reasonable expectation of privacy does not depend on whether those persons were engaged in illegal activities continues to hold. Pleased too at this recent statement and the recognition of another principle of interpretation –that State surveillance and intrusion cannot cloak itself in constitutionality merely by being so prevalent that it is held to diminish or erase any/every individual’s reasonable expectation of privacy.