Courts continue to assert the high privacy interest in cell phones, following the pronouncements of the highest courts in both Canada and the US. A recent decision of the Saskatchewan Court of Appeal continues this trend, but also allows some leeway for privacy infringements while the law develops. Employers should take note of the former without counting on the latter.
In R. v. Adeshina, the court allowed evidence of text messages that had been obtained from an indiscriminate “data dump” of a cell phone, even though those texts were obtained by way of a “very significant” breach of the accused’s Charter-protected interests.
The cell phone had been seized in connection with the accused’s arrest for drug trafficking. The text messages turned out to be the essential evidence connecting the accused to the crime. However, the search of the phone and review of the incriminating text messages did not occur until a month after the initial arrest.
The trial judge concluded that the search of the phone had violated Mr. Adeshina’s rights under s. 8 of the Charter but that the text messages were nonetheless admissible. The messages were then entered into evidence. Mr. Adeshina was ultimately convicted, and he appealed.
The Saskatchewan Court of Appeal dismissed the appeal, noting that section 24(2) of the Charter provides that evidence obtained in violation of an accused person’s Charter rights must be excluded from the trial record if “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” The court then turned to three considerations flagged in R v Grant, 2009 SCC 32 for the admissibility of such tainted evidence: the seriousness of the Charter-infringing conduct, the impact of the Charter breach on Mr. Adeshina’s Charter-protected interests, and society’s interest in the adjudication of this case on the merits.
On the first consideration, the Court did not find the breach to be serious, concluding that the search was conducted in the good faith belief that it was lawful. The Court noted specifically in forgiving the violation that “the law in this area was quite unsettled and unclear.”
On the second consideration, the Court found that the violation had been particularly intrusive of Mr. Adeshina’s privacy interests as it had involved a “data dump” in which the police gained access to extensive personal information— including, according to the trial judge, “the accused’s personal choices in lifestyle and adult ‘XXX’ movies, which he downloaded, as well as ‘selfies’, photos of the accused without his shirt on”. On the final consideration, the Court accepted the trial judge’s conclusion that there was a clear societal interest in seeing this case adjudicated on the merits.
Having consideration to all these factors, the Court upheld the trial judge’s decision to admit the evidence and dismissed the appeal.
Cell phone privacy most frequently arises in the criminal context. But courts tend to grant the same premium to cell phone privacy when it arises elsewhere—notably, employee privacy rights, as recently discussed on the snIP/ITs blog. Adeshina unsurprisingly reiterates the high privacy interest in cell phones. It also shows that courts may forgive infringements while the law is in flux. As the law in this area solidifies, however, courts will likely be less willing to overlook infringements of digital privacy. Employers, take note.