What's private on mobile device? Courts work on this question.

January 08, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Person Holding Android Smartphone

The use of social media accounts as evidence in court rooms is becoming common. More than one insurance case has been made or broken by images of individuals doing things they claim they cannot, or by confirming that in fact individuals are not able to do what they would like. The gathering of the evidence has been straight forward to date. If the information is publicly available, then it is by and large considered admissible as evidence.

A recent case in criminal court considered whether evidence from a cell phone was admissible in a drug trafficking case. A young man collapsed in his parents’ bathroom after over dosing and rushed to the hospital where he dies a few days later. His father subsequently found his cell phone which was unlocked and found disturbing messages. The father took the cell phone to the police who also looked through the phone contents. The messages related to drug trafficking, and there was evidence of e-transfers of funds between the victim and another individual. Police subsequently charged the other individual with drug trafficking.

Before the start of the trial, the question of the other individual’s chart rights was brought up. Should evidence of the e-transfers and the text messages be allowed into evidence?

Judge Latimer easily determined that the evidence of the e-transfers should be allowed. They were created by the victim and did not contain any communication or private information about the recipient. He noted that the text messages were a different issue.

The text messages were obtained without a warrant and thus the question of the legality of the seizure was raised. The judge ruled that the police seizure of test messages was an ‘intrusion’ of the information privacy of the other man but then framed the issue in the context of the crime committed (carfentanil trafficking) which carries a maximum life sentence. The judge noted that the other man knew the victim regularly shared his phone with other individuals and that this did diminish his expectation of privacy.  He also noted that the recent Supreme Court of Canada decision of December 2017 regarding charter protections for texts found by police was released after this incident occurred.

In the end, Judge Latimer found that the other man's charter protections were breached on account of the change in the law but ruled the police conduct was appropriate at the time.

"While the intrusion into Mr. Rafferty's privacy interest was significant, so is the charge," the judge said. "In conclusion, I am convinced that the text messages should be admitted at trial."

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