B.C. Police Officers Claim Privacy Rights Violated when WhatsApp Texts Accessed
Five police officers in Nelson, B.C. have just launched a constitutional challenge in the B.C. Supreme Court claiming that their privacy rights were violated during an investigation into their WhatsApp messages. They were accused of swapping inappropriate content on their personal smartphones.
The officers are challenging a section of the B.C. Police Act, saying it allows infringement on their privacy rights during a Vancouver Police Department officer investigation. B.C.’s attorney general is named as defendant as the “attorney general bears the onus of establishing that Section 103 of the Police Act is constitutionally compliant” says the officers’ court petition.
That section allowed an investigator from the Vancouver Police Department to download more than 5,800 texts the officers sent from March 2019 to January 2021, to determine whether the officers engaged in discreditable conduct.
The petition also says obtaining the WhatsApp group members’ electronic files was in violation of Section 8 of the Canadian Charter of Rights and Freedoms that protects Canadians’ privacy rights, including protection from unreasonable search and seizure.
The officers say the communications were private among the members of the invite-only group chat, that they felt confident their communications were protected by WhatsApp, and that they had a reasonable expectation of privacy on the app. Section 103 of the Police Act “fails to protect (police) members under investigation from unjustified state intrusions on their privacy,” the petition reads. It further claims this statute allows the state to search an officer’s home, phone and private electronic communications “on a threshold so low it is difficult to imagine a scenario where it would not be met.”
The police officers stopped using the app in 2021 because changes to WhatsApp raised concerns about the security of the messages. The misconduct hearing has been moved to November to allow for the hearing of the constitutional challenge where it will be determined if the officers had a reasonable expectation of privacy in their WhatsApp texts.
The Canadian jurisprudence has typically found that users of cell phones containing private and personal information have a reasonable expectation of privacy, but will this apply to law enforcement authorities? It is important to note that a determination of whether an individual has a reasonable expectation of privacy proceeds on a case-by-case basis with regard to the totality of circumstances.
In R v. Marakah (2017), the Supreme Court of Canada ruled that an individual may have a reasonable expectation of privacy in an electronic conversation in some cases, and that text messages that have been sent and received may therefore be protected against unreasonable search and seizure. In R. v. Jones (2017), heard as a companion case to Marakah, the Supreme Court considered whether the sender of a text message has a reasonable expectation of privacy in records of that message stored in the service provider’s infrastructure. The decision was that there is such an expectation. The Supreme Court of Canada has thus repeatedly recognized privacy as necessary for the realization of other human rights protected under the Charter.
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