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
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
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
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
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