Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation explores a case that raises critical questions about privacy in text messages and the unequal treatment of digital communications depending on who is on trial.
Key Points Discussed
The Legal Context
During a sexual assault trial, the Crown introduced text messages that the accused had sent to the complainant. These messages were used to support allegations not only of sexual assault but also of luring. The accused argued that he had a reasonable expectation of privacy in those text messages and that their use should be subject to Charter protections.
The Charter Challenge
It was found that the police had unlawfully intercepted the text messages, violating the accused’s Charter rights. Despite this, the trial judge allowed the messages to be admitted under section 24(2) of the Charter, which permits the admission of unlawfully obtained evidence if its exclusion would bring the administration of justice into disrepute.
Unequal Privacy Standards
On appeal, the accused argued that there’s a troubling disparity in how privacy is treated depending on who is sending or receiving the message:
Complainants in sexual assault cases are presumed to have a strong expectation of privacy in their digital communications. Defence lawyers cannot even cross-examine them on their messages without first applying to the court.
Accused persons, however, may have their messages admitted into evidence—even when obtained unlawfully—without any equivalent procedural protections.
This inconsistency seems at odds with the general principle that a criminal trial should be primarily concerned with fairness to the accused.
Inconsistent Case Law on Digital Privacy
Some courts have ruled that individuals do not retain privacy in digital messages that form the gravamen (core) of the offence. But this contradicts other rulings where privacy in physical spaces—like a home—still applies, even if the illegal items (e.g., drugs) found there form the basis of the charge. Why should digital spaces be treated differently?
Why This Case Matters
-Digital Communications & Charter Rights: As more communication happens via text and online messaging, the legal system must define clear, consistent rules for how privacy applies.
-Fairness in Criminal Trials: Unequal treatment of accused persons and complainants when it comes to digital privacy undermines the fairness and integrity of the justice process.
-Missed Opportunity by the Supreme Court: This case could have clarified how and when text messages should be protected under the Charter—and whether the current double standard is legally and ethically justifiable.
Topics Covered
-Privacy rights in digital communications
-Section 24(2) of the Charter and the exclusion of evidence
-Disparities in how courts treat complainants vs. accused individuals
-The future of digital privacy in Canadian criminal law
