Appeal from conviction for trafficking cocaine. Undercover officer arranged a drug transaction via mail through a text conversation. Recipient had previously had his phone seized by police in a separate investigation, when police noticed a drug-related conversation with the appellant. An officer added himself to the conversation and engaged in text messages with the appellant, impersonating the recipient and a fictional friend, culminating in arranging the drug transaction.
Held: No ss 7 or 8 violation.
Police conduct did not constitute an interception requiring judicial authorization. “Simply put, as I see it, deception does not amount to an interception…absent intrusive technologies amounting to an “interference” between the recipient and the sender, no interception is made out”. While Marakah, 2017 SCC 59 established that text messages can attract a reasonable expectation of privacy, here the “complete absence of evidence” that the Appellant expected the recipient to keep messages private was fatal.
H. Patey / S. Fix – Defence Counsel