This week’s top three summaries: R v Demetroff, 2025 ABCA 373: #after the fact, R v BR, 2025 ABKB 659: s.8 school #principal, R v Robinson, 2025 ABCJ 196: #witnesses
R v Demetroff, 2025 ABCA 373
[November 14, 2025] W(D): Statements led by the Crown, After the Fact Conduct: Proven False Statements, Bad Character Evidence [Jolaine Antonio, Kevin Feth, and Tamara Friesen JJ.A.]
AUTHOR’S NOTE: This case deals with the W(D) instruction, After the Fact Conduct, and Bad Character Evidence. In a co-accused trial with each blaming the other, the issues can get complex. On the W(D) instruction, this case reinforces that exculpatory evidence can arise from an accused’s out of court statements. On this point, the accused out of court statements, even if not believed, could still leave the jury with a reasonable doubt and they must be so instructed. This is particularly important where the Crown attempts to suggest the statements are provably false.
In co-accused trials the introduction of bad character evidence by co-accused is subject to a lower threshold for entry, but even so, the the judge must determine which issue it is admitted for and must limit the jury’s consideration of that evidence to that issue. In this case such evidence included domestic violence between the co-accused.
After the fact conduct evidence also must be subjected to a limitation instruction to a jury. Fabrication of statements is a form of after the fact conduct, but this is not established merely by a jury disbelieving an accused’s after the fact statement. Disbelieved statements merely have no evidentiary value. The jury must be so instructed. Moreover, the trial judge must identify for the jury reasonable and rational inferences that might be drawn from after the fact conduct evidence. Particularization on this is required.
I. Introduction
[1] The appellant, Kardon Demetroff, was convicted of first degree murder for the shooting death of Larry Parker. The appellant appeals his conviction, arguing the trial judge erred in admitting certain evidence and in instructing the jury on issues relating to credibility, after-the-fact conduct, and party liability. For the reasons that follow, the appeal is allowed, and a new trial is ordered.
II. Background
[2] On April 12, 2020, at around 4:00 AM, Tarissa Swampy phoned her landlord, 74-year-old Larry Parker, and complained about loud banging coming from the tenants who lived upstairs. Mr. Parker told Ms. Swampy he would come and tell them to be quiet. He got in his SUV and drove over to the property, located in Wetaskiwin. After speaking with the upstairs tenants, Mr. Parker encountered the appellant and Celeste Saddleback standing outside.
[3] Sometime thereafter, Mr. Parker was shot once in the chest. The bullet travelled through his chest, stomach, abdomen, liver and kidney. He succumbed to his injuries. At around 8:00 AM, his body was discovered lying on a rural road outside of Maskwacis, 15 to 20 kilometers away from his rental property in Wetaskiwin. Mr. Parker’s SUV was found abandoned approximately six kilometres away from where his body was found.
[4] On May 4, 2020, the appellant was arrested and charged with murdering Mr. Parker. Police interviewed the appellant on May 4 and 5. After initially denying any involvement in Mr. Parker’s death, the appellant eventually admitted he was involved. He told police he and Ms. Saddleback met Mr. Parker after Mr. Parker had spoken with his upstairs tenants. Mr. Parker agreed to give them a ride somewhere in Wetaskiwin. At some point during the ride, the appellant began directing Mr. Parker to drive outside of Wetaskiwin. The appellant told police, “He’s like, ‘I’m not driving around here no more’… But like I made him”. When they were on a rural road outside of Maskwacis, the appellant told Mr. Parker he had a gun and directed him to get out of the SUV. The appellant got out of the SUV with the intention of making Mr. Parker get out, but Mr. Parker drove off with Ms. Saddleback still in the passenger seat. He saw Mr. Parker hitting Ms. Saddleback, so he fired a single shot toward the SUV. He told police, “I was trying to aim at him”. Although the shot did not hit Mr. Parker, the SUV stopped. The appellant told police when he made it to the SUV, Ms. Saddleback took his gun and shot Mr. Parker.
[5] On May 6, 2020, Ms. Saddleback was arrested….
….Instead of shooting Mr. Parker herself, however, Ms. Saddleback told police it was the appellant who shot him.
[6] Police found DNA belonging to both the appellant and Ms. Saddleback on items inside Mr. Parker’s SUV.
V. W(D) instruction
A. Background
[16] When reviewing the trial judge’s proposed jury instruction, trial counsel for Ms. Saddleback asked that the jury be instructed that “fabricated accusations against a third party” can be probative of guilt, either as part of the credibility assessment or as after-the-fact conduct evidence. Counsel highlighted the fact that, in the appellant’s statement to police, he “pointed the finger at a lot of other people and then later … admitted that that wasn’t true”.
[17] Trial counsel for the appellant – who were not counsel on the appeal – disagreed, emphasizing that one of the purposes of a W(D) instruction was to guard against a jury reasoning that an accused was guilty just because it disbelieved his evidence. Counsel urged that W(D) applies in any case where credibility is a significant issue: W(D) at 757.
18] The trial judge stated that W(D) did not apply because there was no testimony from the [18] The trial judge stated that W(D) did not apply because there was no testimony from the accused, only an unsworn statement. She did not include a W(D) instruction in the jury charge, nor did she include the instruction requested by counsel for Ms. Saddleback. The trial judge included general instructions regarding the presumption of innocence, burden of proof, and credibility, including that a reasonable doubt could arise “from the evidence, the absence of evidence, or the credibility or the reliability of one or more of the witnesses”.
B. Analysis
[20] We conclude the trial judge erred in finding the W(D) framework did not apply. That error led to an insufficient jury instruction.
[22] The W(D) framework applies to all exculpatory evidence the Crown must negate beyond a reasonable doubt: R v Ryon, 2019 ABCA 36 at para 29 [Ryon]. It applies even where the accused does not testify and the exculpatory evidence is contained in an accused’s out-of-court statement: R v Tolchinsky, 2025 ABCA 15 at para 59; R v Sanhueza, 2020 BCCA 279 at paras 32-34; R v Cuthill, 2018 ABCA 321 at paras 93-95, leave to appeal to SCC refused, 38504 (23 May 2019) [Cuthill]. As explained by the Ontario Court of Appeal in R v BD, 2011 ONCA 51 at para 114:
…the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt… In that event, they must acquit.
[Emphasis added]
[23] Here, it was not made clear to the jurors that, if they did not believe the appellant’s exculpatory statements, they could still be left with a reasonable doubt as to his guilt….
[24] A W(D) instruction informs the jury that a lack of credibility on the part of the accused does not equate to proof of guilt beyond a reasonable doubt: R v JHS, 2008 SCC 30 at para 13. In our view, this message was not adequately conveyed to the jury.
[25] The need for these instructions was particularly acute given that during closing argument, Crown counsel focused on “all these lies” in the appellant’s police statement, and suggested the jury could infer the appellant had shot Mr. Parker in part because of the lies:
[26] In the context of the evidence and argument, including in light of the other issues discussed below, we are concerned the binary nature of the instruction – to accept or reject the appellant’s evidence – may have exacerbated the omission of any instruction that a criminal trial is not a credibility contest. A jury’s task is not over when it decides it does not believe the accused. Jurors must still consider whether they are left in reasonable doubt by the exculpatory evidence and, if not, whether they are convinced beyond a reasonable doubt on the evidence they do accept.
[27] The jury was not properly equipped in the circumstances of the trial to decide the case. It was insufficiently instructed on how to assess the exculpatory evidence contained within the appellant’s police statement.
VI. Past discreditable conduct evidence
A. Background
[28] Evidence of past discreditable conduct on the part of the appellant was adduced at trial. The unredacted portions of the appellant’s statement to police included references to the appellant recently getting out of jail, discussion of institutions where the appellant had previously been incarcerated, and the appellant’s claim that he was a member of Hells Angels. On crossexamination by the co-accused, the appellant’s mother confirmed the appellant had a criminal record and had spent time in custody. Ms. Saddleback asserted in her police statement that the appellant had previously hit her with a firearm, knocking out her teeth.
[29] The trial judge cautioned the jurors against propensity reasoning, but instructed that they could consider the appellant’s criminal history in assessing his statements to police:
You have heard that Mr. Demetroff has previously spent time in jail and has previously been convicted of criminal offences. You must not use that fact, the fact that Kardon Demetroff has committed crimes in the past, as evidence that he committed the crime charged here or to find that Mr. Demetroff is a person of bad character and, therefore, likely to have committed the offence charged. A previous conviction does not necessarily make the statement of Mr. Demetroff unbelievable or unreliable. It is only one of many factors for you to consider in your assessment of his statement.
[30] The trial judge provided a similar caution with respect to evidence about the appellant’s “lifestyle”, including drug use, gang associations, and use of foul language:
Additionally, you have heard evidence about Mr. Demetroff’s lifestyle, including drug use and drug dealing, potential gang associations, using foul language, and other evidence that you may find impacts your view of his character. This evidence may be used by you in assessing his credibility. However, it may not be used to infer that he is the type of person who is more likely to commit the offence charged or an included offence.
[31] The jury was also instructed as to another use that could be made of the evidence:
The Crown cannot rely on evidence of disposition or propensity in order to prove that a person is guilty of an offence. However, one person charged is entitled to rely on this kind of evidence with respect to another in order to raise a reasonable doubt about whether the first person committed the offence.
B. Analysis
[33] Past discreditable conduct evidence is evidence of the accused’s misconduct beyond what is alleged in the indictment: R v TJF, 2024 SCC 38 at para 75 [TJF]. It is generally inadmissible, because its “potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value”: R v Handy, 2002 SCC 56 at para 37 [Handy].
[35] Evidence of past discreditable conduct can exceptionally be admitted where it is relevant to an issue in the case beyond disposition or character. Where the Crown seeks to adduce such evidence, it must satisfy the trial judge on a balance of probabilities that, in the context of the case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. Central to this assessment is identification of the live issue in the trial to which the evidence relates: Handy at paras 55, 73-74; R v G(SG), [1997] 2 SCR 716 at paras 63-65, 1997 CanLII 311 (SCC) [G(SG)]; R v B(FF), [1993] 1 SCR 697 at 730-731, 1993 CanLII 167 (SCC).
[36] The threshold for a co-accused to introduce evidence of an accused’s past discreditable conduct is lower than for the Crown, given the necessity of permitting full answer and defence. However, the co-accused must still establish that the evidence is relevant to a live issue in the case, and the prejudicial effect of the evidence must not “substantially outweigh” its probative value: R v Davani, 2023 ONCA 169 at paras 18, 22; R v Hubler, 2013 ABCA 31 at para 30; R v Pollock, 188 OAC 37, 2004 CanLII 16082 (ONCA) at paras 110-111, 119; see also R v JOL, 2020 ABCA 73 at para 35; R v Goldfinch, 2019 SCC 38 at para 32.
[37] If evidence of past discreditable conduct is properly admitted with respect to an issue in the case, the trial judge is required to instruct the jury that it may use the evidence in relation to that issue, but not for prohibited purposes: Handy at para 70. Once properly admitted, past discreditable conduct evidence adduced by the Crown may also be used to assess the accused’s overall credibility: R v Calnen, 2019 SCC 6 at para 64 [Calnen]; G(SG) at paras 66, 68, 70, 73.
[38] The trial judge in this case warned the jury against prohibited propensity reasoning but failed to assess whether the past discreditable conduct evidence was properly admissible in the first place.[Emphasis by PJM]
[39] During cross-examination of the appellant’s mother, counsel for Ms. Saddleback elicited evidence that the appellant had a criminal record. Counsel for the appellant objected to continued questioning on the subject but did not request a mid trial instruction excluding the evidence already adduced. After counsel for Ms. Saddleback agreed to not ask any further questions about the appellant’s criminal record, the trial judge allowed cross-examination to continue. No assessment of probative value versus prejudicial effect was done.
[40] On cross-examination of one of the interviewing police officers, counsel for Ms. Saddleback elicited evidence that Ms. Saddleback said the appellant had hit her in the face with a gun and knocked her teeth out. The same assertion was included in Ms. Saddleback’s police statement. No assessment of the admissibility of this evidence was performed.
[43] We are not satisfied that any error was harmless. As discussed above, the jury was insufficiently instructed on the boundaries on its use of adverse credibility findings against the appellant. In that context, the instruction permitting the use of any and all past discreditable conduct to assess credibility contributed to the jury being insufficiently equipped to perform its role.
VII. After-the-fact conduct evidence
A. Background
[44] Evidence of the appellant’s post-offence conduct was also adduced at trial. In his statement to police, the appellant said that after Mr. Parker was shot, he and Ms. Saddleback looked for a place to hide Mr. Parker’s SUV and attempted to disable its GPS tracking; he searched Mr. Parker’s SUV for anything valuable; and he took a bag of Mr. Parker’s belongings from Ms. Saddleback’s house to his mother’s house, where he showed it to his brother and told him to get rid of it. His brother testified the appellant showed him the bag and asked him whether he could make money off it. When his brother told him he could not, the appellant told his brother to throw the bag out.
[45] The appellant also made contradictory exculpatory statements to police. Trial counsel for the appellant conceded some of the statements were not true but asked the jury to accept others. As previously referenced, the Crown argued that the appellant had lied to police, and suggested his lies constituted after-the-fact conduct that would support a finding of culpability.[Emphasis by PJM]
[46] The trial judge provided the following instruction to the jury regarding after-the-fact conduct evidence:
…if you find that this conduct occurred with respect to Mr. Demetroff, you may use this evidence to consider whether it reflected his participation in the commission of the offence, which he denies. You must, however, not use this evidence admitted by him to infer that he is a person of bad character or that he is the type of person to commit the offence charged.
You may use the evidence, along with all the other evidence in the case, in deciding whether the Crown has proved the guilt of either accused beyond a reasonable doubt. However, you must not infer guilt of an accused from their after-the-fact conduct unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with his or her guilt and is inconsistent with any other reasonable conclusion.
B. Analysis
[49] Our first point of concern arises from the trial judge’s reference to “things said or done” by the appellant after the offence. While the trial judge focused on some of the things the appellant admitted he did after the offence, she did not identify the “things said” by the appellant after the offence. This could have been understood by the jury to include the exculpatory statements the appellant initially made during his interview with police that he later admitted were not true, particularly given the Crown’s submission that the appellant’s “lies” to police were proof of his culpability. Fabrication or concoction is a form of after-the-fact conduct that may in rare cases support an inference of consciousness of guilt: R v Anderson, 2025 ONCA 408 at paras 59, 117; R v B(AK), 2024 MBCA 76 at paras 55-57 R v Laliberté, 2016 SCC 17 at paras 3-4; R v White, 2011 SCC 13 at para 17 [White]. However, “[t]here is a firm distinction between testimony that is found to be false, and therefore rejected, and testimony that is found to have been intentionally concocted or fabricated”, with the former having no evidentiary value: R v BJ, 2023 BCCA 166 at para 33. The trial judge did not alert the jury to this distinction, thereby compounding the W(D) error. The jurors may have felt they were permitted to infer guilt from their rejection of the appellant’s initial exculpatory statements to police. [Emphasis by PJM]
[50] Our second point of concern is that the trial judge failed to identify for the jury the reasonable and rational inferences that might be drawn from the after-the-fact conduct evidence. It is important for trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it: Calnen at paras 113, 115 per Martin J (dissenting in part, but not on this point). Evidence of after-the-fact conduct may be admissible to support certain inferences but not others. For example, when an accused has confessed to engaging in some form of criminal conduct, after-thefact conduct that supports an inference that the accused had a “guilty conscience” may be of little or no use in determining his level of culpability: White at para 25; Calnen at paras 114, 121.[Emphasis by PJM]
[51] Here, instructing the jury it could use the after-the-fact conduct evidence to assess the appellant’s “participation in the commission of the offence” was insufficient. It was for the jury to decide whether he participated during the commission of the offence, but it is likely much of its deliberation would involve questions such as which accused fired the gun, whether there was an agreement between them, and whether the appellant had the intention required for murder. Before leaving the after-the-fact conduct evidence with the jury, the trial judge needed to clarify whether or how the evidence could help resolve these and other questions. The instruction did not properly equip the jury to understand how the after-the-fact evidence could appropriately, versus inappropriately, be used to decide these and other contentious points.
IX. Conclusion
[55] For the foregoing reasons, the appeal is allowed, and a new trial is ordered.
R v BR, 2025 ABKB 659
[November 17, 2025] Charter s.8: Investigation by School Principal [Justice N. Whitling]
AUTHOR’S NOTE: This case provides a detailed examination of a school principal’s independent investigation into inappropriate sexual interactions between staff and students. Under Alberta’s Education Act, principals are granted governmental authority to maintain a safe school environment and are legally empowered to conduct warrantless searches for that purpose.
However, when police later request the results of those searches, they are engaging in a separate and independent seizure—specifically, a warrantless seizure of private information. A school principal cannot provide lawful third-party consent on behalf of students or staff for the police to obtain that information. As a result, police cannot rely on a principal’s expanded warrantless search powers to bypass the usual constitutional requirements in a criminal investigation.
I. Introduction
[1] The accused B.R. stands charged with possession of child sexual abuse material, luring a child, and sexual exploitation.
[2] The accused now applies pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude certain evidence obtained by the police at the outset of their investigation of these charges. These reasons are limited to the issue of whether s. 8 was violated. The parties have agreed to defer any necessary arguments respecting the exclusion of evidence from the trial pursuant to s. 24(2).
[3] The evidence sought to be excluded in this application consists of two “electronic conversations” between the accused and the complainant which are recorded on five electronic files. The Crown alleges that during those electronic conversations the accused made certain admissions respecting the occurrence of sexual contact between herself and the complainant.
[4] For the reasons which follow, I find that the police acquired the electronic conversations in violation of s. 8 of the Charter. The accused’s application for a declaration to that effect is therefore granted.
[6] At the time of the events alleged in the indictment, the accused was employed as an educational assistant (“EA”) by the Grande Prairie Catholic School Division and the complainant was a 16-year-old grade 10 student.
[7] On September 28, 2023, another EA employed at the same school notified the school’s principal of rumors that sexual contact had occurred between the accused and the complainant. The principal spoke with the complainant twice that day, and in those discussions the complainant told the principal that sexual contact had indeed occurred between himself and the accused.
[8] In the discussions between the principal and the complainant, the complainant showed the principal a part of a Snapchat message exchange that he said was between himself and the accused. The principal then used his own phone to take a photo of a portion of the Snapchat messages on the complainant’s phone.
[9] The complainant also advised the principal that he had a video recording of a Snapchat voice call between himself and the accused. The complainant told the principal that the complainant had been driving with his friend when he had a voice conversation through Snapchat with the accused on speakerphone. Although the complainant told the accused that he was alone, the friend was present and used his own phone to video record the voice conversation. The resulting video recording of the Snapchat conversation consists of four electronic video files and includes audio. The recording is of the inside of the vehicle where the complainant’s end of the conversation occurred. The complainant is present in the video recording and a female voice can be heard over the speaker of the complainant’s phone. In the conversation, there is apparent discussion of sexual activity the two had engaged in. The complainant’s friend later provided a copy of the recorded conversation to the complainant.
[10] When the principal became aware of the recording, he asked the complainant to let him listen to it. He was concerned that the complainant might delete it, so he “asked” the complainant to send him a copy of it. The complainant did so. No additional detail has been provided by the parties in relation to this exchange between the principal and the complainant.
[11] On the same day as his meetings with the complainant, the principal reported the incident to the Grande Prairie RCMP….
[12] Upon learning of the existence of the electronic recordings, Cst. Ingram asked the principal to send her copies of them. The parties’ identical submissions on this point state that “Cst. Ingram requested [the principal] send him those items.” The Crown’s submissions also state: “When asked, the principal provided the police the recordings.” No additional detail has been provided respecting this exchange
IV. Did the Accused Have a Reasonable Expectation of Privacy in the Electronic Files?
A. Introduction
[20] The general test applicable to the existence of a reasonable expectation of privacy is reflected in R v Spencer, 2014 SCC 43:
18 The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: Tessling, at para. 32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40. However, this is not a purely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42. Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: Patrick, at para. 14; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, and Ward, at paras. 81-85.
[21] I will now proceed to apply the four criteria identified in the above passage of Spencer.
[24] These conclusions in Marakah are equally applicable to the present case. The subject matters of Cst. Ingram’s evidence gathering were the electronic conversations between the accused and the complainant. The information to be gained from those electronic conversations included their occurrence, the participants’ identities, the information they shared, and the inferences that may be drawn about their association and activities.
C. The Accused’s Interest in the Subject Matter
[25] In considering “the claimant’s interest in the subject matter”, the Supreme Court of Canada has considered whether the interest is “direct” (R v Reeves, 2018 SCC 56 at para. 32; Marakah para. 21) and also whether the claimant’s interest is in maintaining confidentiality, control, or anonymity (Spencer at paras. 39-41). The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity (Spencer at para. 36).
[26] The accused in the present case was one of the two participants in the electronic conversations obtained by the police. An audio recording of her own voice is contained in the video recording and her own text messages are recorded in the image file. Her interest in the subject matter was, therefore, direct and personal, and the nature of her privacy interest was in maintaining confidentiality and control over the electronic conversations. These considerations weigh in favour of the existence of a reasonable expectation of privacy.
D. The Accused’s Subjective Expectation of Privacy
[28] Although the accused has not given evidence on this application, I infer that she had a subjective expectation of privacy in the electronic conversations obtained by the police. This much is apparent from the fact that she used a device with a network connection to convey personal information: Spencer at para. 19; R v Cole, 2012 SCC 53 at para. 43. The existence of a subjective expectation of privacy may also be inferred from the fact that the accused received an assurance from the complainant that he was alone at the time of their voice conversation.
E. Was the Accused’s Subjective Expectation of Privacy Objectively Reasonable?
[29] Since the concept of a reasonable expectation of privacy is normative and not purely subjective, it is necessary to assess whether any such subjective expectation of privacy is objectively reasonable. In R v Jarvis, 2019 SCC 10 at para. 5, Wagner C.J. held that this issue must be assessed in the “entire context” and that the “list of considerations that may be relevant to this inquiry is not closed”, and in R v Campbell, 2024 SCC 42 at para. 24, Jamal J. stated that “[t]here is no closed or definitive list of factors relevant to whether a claimant’s subjective expectation of privacy in the subject matter of a search is objectively reasonable”.
[30] In assessing this normative requirement, the court may not consider the substantive content of the electronic conversation. For the purposes of the s. 8 analysis, the electronic conversation is an “opaque and sealed ‘bag of information’”: Marakah at para. 32; Campbell at paras. 50-52, 60. I do not accept the Crown’s submission that there presently exists an exception to this rule where the electronic communications themselves constitute a crime involving the victimization of children: Campbell at paras. 72-78. For this reason, I will not be considering the sexual nature of the communications comprising the electronic conversations now at issue.
i. The Place of the Search
[32] The communications in the present case were sent by the accused directly to the complainant’s phone. They were not posted in any public forum or message board with the expectation that they would be publicly displayed. They consisted of one-on-one conversations through the Snapchat messenger application. Although the complainant allowed a friend to overhear the conversation, that circumstance was not known to the accused.
[33] I conclude that the one-on-one nature of the electronic conversation is a factor weighing in favour of the reasonableness of the accused’s subjective expectation of privacy. Putting the same point another way, there was no broad or public disclosure that might undermine the reasonableness of the accused’s expectation of privacy.
ii. The Potential for Revealing Private Information
[34] One important factor identified by McLachlin C.J. in Marakah at para. 31 is “the potential for revealing private information is a factor to consider in determining whether an electronic conversation attracts a reasonable expectation of privacy”. McLachlin C.J. went on to draw the following conclusions respecting communications of this nature:
37 Electronic conversations, in sum, are capable of revealing a great deal of personal information. Preservation of a “zone of privacy” in which personal information is safe from state intrusion is the very purpose of s. 8 of the Charter: see Patrick, at para. 77, per Abella J. As the foregoing examples illustrate, this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private.
[35] Similarly, in Campbell Jamal J. wrote:
59 Here, the alleged search of Mr. Campbell’s text message conversation intruded into a medium of communication in which a reasonable person would ordinarily expect the utmost privacy. A text message conversation has the potential or tendency to reveal deeply personal and biographical information about the participants. This is the type of information that anyone would reasonably expect to be kept private from the state.
[36] Like the conversation at issue in Marakah and Campbell, electronic conversations like the ones obtained by the police in the present case are capable of revealing a great deal of personal information. This factor weighs heavily in favour of the reasonableness of the accused’s subjective expectation of privacy in those conversations
iii. The Nature of the Relationship
[37] Another factor to be taken into account in the “totality of the circumstances” is the relationship between the parties to the electronic conversation. The defence argues that the relationship that exists between an educator like an EA and a student is worthy of s. 8 protection and might reasonably be expected to involve the conveyance of personal and biographical information. In response, the Crown acknowledges that a student might properly be expected to convey such information to an EA, but the same cannot be said about an EA’s own communications to a student. In the Crown’s submissions, an EA is expected to communicate with students in a professional manner, and without conveying their own personal information
[38] In R v Mills 2019 SCC 22, Brown J. stated in his plurality opinion that no reasonable expectation of privacy could attach to electronic conversations between an adult and a child who was a stranger to the adult. In doing so, he emphasized that different considerations apply to adults and children who are known to each other. In his words:
24 …We must also bear in mind that most relationships between adults and children are worthy of s. 8’s protection, including, but in no way limited to, those with family, friends, professionals, or religious advisors…
[40] While I agree with the Crown that an EA’s communications to a student would be less likely to convey the EA’s own personal and biographical information, sharing an EA’s everyday life experiences can be a useful and important aspect of such communications. And in any event, untrammeled state intrusions into such communications would be detrimental to the educator student relationship. Given that relationships of this nature are worthy of s. 8’s protection and given that the occurrence of private communications within this relationship is not inherently suspicious or dangerous, I find that the nature of the relationship in this case is a factor which supports the reasonableness of the accused’s subjective expectation of privacy.
iv. The Loss of Control
[44] It is well established that sending an electronic communication to another party does not negate the sender’s reasonable expectation of privacy in that communication. Although the substance of the Crown’s present argument was accepted by Moldaver J. (dissenting) in Marakah at paras. 98-99, it was rejected by McLachlin C.J. for the majority….
[45] ….the sharing of an electronic communication by a party to the communication does not, in and of itself, negate the applicability of s. 8. As Jamal J. wrote in Campbell:
66 The Crown’s position also fails to appreciate that control is not determinative of the question of standing. As McLachlin C.J. emphasized in Marakah, “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest” (para. 38; see also Reeves, at para. 37). “[A] person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it” (Marakah, at para. 41; see also para. 68). Sharing control of the information at issue may diminish without necessarily eliminating a person’s reasonable expectation of privacy….
F. Conclusion on Reasonable Expectation of Privacy
[48] Having considered the totality of the circumstances, I conclude that the accused had a reasonable expectation of privacy in the electronic conversations obtained by Cst. Ingram from the school principal. In other words, the accused had a reasonable expectation that the communications would remain private.
V. Did the Acquisition of the Electronic Conversations by Cst. Ingram Constitute State Action which Engaged Section 8?
A. Legal Principles Respecting the State Action Requirement
[50] The Crown argues that since the electronic files now at issue were voluntarily provided by the complainant to the principal, who in turn voluntarily provided them to the police, there was no state action for the purposes of s. 32. In support of this position, the Crown relies upon R v King, 2021 ABCA 271 and R v AK, 2022 ABQB 503.
[54] The degree of state action required to engage s. 8 when evidence is voluntarily provided to the police by a civilian has not been squarely addressed by the Supreme Court of Canada. In R v Buhay, 2003 SCC 30 at para. 39, Arbour J. queried whether a “mere transfer of control” of evidence by private security officers to the police might constitute a seizure for the purposes of s. 8. In Marakah at para. 50, McLachlin C.J. assumed without deciding that s. 8 is engaged “when the police access text messages volunteered by a third-party”. And in Reeves at para. 46, Karakatsanis J. wrote that “[t]he issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day.”
[55] Another case touching upon this subject is Cole. In that case, school employees had seized a teacher’s school-issued laptop, made copies of its contents on a CD, and handed over both items to the police. The police then conducted a forensic examination of the laptop’s contents without a warrant. Fish J. held that “[t]he school board was, of course, legally entitled to inform the police of its discovery of contraband on the laptop” (para. 73). However, s. 8 was engaged since “[i]n taking possession of the computer material and examining its contents, the police acted independently of the school board” (para. 67). In commenting upon this case in his 2023 article, Professor Penney points out at p. 30 that while Fish J. did not provide an explanation of the degree of state action necessary to engage s. 8, the police’s “comprehensive forensic examination” of the laptop was sufficient for this purpose.
[56] In Alberta, the leading case on this subject is King. In that case, the accused’s spouse had accessed his electronic devices and discovered what she thought was child sexual abuse material. She then created screenshot copies of some of that material, saved those copies onto a USB flash drive, and took the drive to the police. The police reviewed the contents of the drive and used the resulting information to obtain a search warrant. On appeal from conviction, the Court of Appeal found that the police’s initial review of the screenshot files did not constitute state action which engaged the Charter:
14 ….merely looking at Ms. Liu’s USB flash drive was not a “search” involving the appellant, let alone a search involving state action.
[57] An important feature of the facts in King appears to be that the police did not take possession of any computer or other physical device belonging to the accused or conduct an examination of any such device until after they had obtained a warrant. In fact, the Court emphasized that “the police did not take anything that belonged to the appellant”. Instead, they had only received and reviewed the wife’s “own copy of part of what she had seen”. This aspect of the case is underscored by Professor Penney who observes at p. 32 that “[u]nlike in Reeves and Cole, the police in King did not seize or examine a digital device potentially containing troves of intimate data unrelated to their investigation.” Rather, the police “passively received evidence presented to them on the equivalent of a silver platter”.
[58] King was distinguished by Paciocco J.A. in Lambert where the accused’s spouse had voluntarily handed over two family computers to the police. In doing so, Paciocco J.A. emphasized at para. 61 that “[u]nlike this case, [the accused’s wife in King] did not bring the electronic device itself to the police.” He went on to draw the following conclusions:
67 In my view, it mischaracterizes events to describe either of the two handovers of the computers to the police as the “passive receipt of an item” by the police. To maintain that characterization, one would have to focus solely on who initiated the transfer of control of the computers to the police while disregarding the crucial fact that the police took active steps to assert control over those computers. On both occasions the police physically took the computers that were offered from Ms. Lambert, secured them, and lodged them, thereby preventing Mr. Lambert from having access. This was not “passive receipt”. By accepting the computers, the police actively took and exercised control over them to the exclusion of Mr. Lambert. [Emphasis added]
[60] Applying the principles contained in the case law summarized above, I conclude that there was sufficient state action in the present case to engage s. 8 of the Charter. In fact, there were two search and seizure events in this case, and both engaged s. 8.
B. The Searches and Seizures by the Principal
[63] As the Supreme Court of Canada explained in both Cole at para. 62 and R v M(MR), [1998] 3 SCR 393 at paras. 48-51, school officials like the principal have a statutory duty to maintain a safe school environment and, by necessary implication, the legal authority to conduct warrantless searches and seizures of students and their property. This authority arises “if there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched” (M(MR) at paras. 48, 50). In Alberta, the corresponding statutory authority is found in the Education Act, S.A. c. E-0.3, s. 197(a.1).
[64] I conclude that the principal’s creation and acquisition of the video files from the complainant constituted state action.1 The principal exercised a search and seizure authority conferred upon him by statute. His authoritative position as principal would have been an important factor in the complainant’s decision to comply with his requests for evidence. The principal created the image file himself using his own phone, “asked the complainant to let him listen to” the recording of the voice conversation, and “asked the complainant to send him a copy of” that recording. To borrow Professor Penney’s words, the principal “actively sought it out rather than passively received it”.
C. The Searches and Seizures by Cst. Ingram
[65] The subsequent searches and seizures that occurred in this case, being those now in dispute, were carried out by Cst. Ingram on the same date. Cst Ingram attended at the school, learned about the content of the electronic files by interviewing the principal, and then “requested” or “asked” that the principal send her copies of that evidence….
[66] On the authority of King, Cst. Ingram’s interview of the principal did not itself constitute a search or a seizure. Further, if Cst. Ingram had merely reviewed the principal’s copies of the material or heard the principal’s description of their contents and then applied for a warrant, this would not have constituted a search or a seizure. But when Cst. Ingram asked the principal to send her copies of the files for the purpose of investigating a crime, and when those copies were created and stored on the government’s devices, s. 8 was engaged.
D. Conclusions on the State Action Requirement
[67] I find that the searches and seizures conducted in this case, and those conducted by Cst. Ingram in particular, were grounded in state action which engaged s. 8 of the Charter. The electronic conversations were not merely delivered to Cst. Ingram on a silver platter, and she did not merely review the principal’s copies. Rather, Cst. Ingram asked the principal to send her the electronic conversations, the principal complied with that request due to her authority as a police officer, and Cst. Ingram obtained and stored new copies of the electronic files comprising the conversations on devices owned by the government. This exercise of governmental authority satisfied s. 32’s requirement of state action.
VI. Were the Searches and Seizures Unreasonable?
[72] Applying Cole to the present case, the searches and seizures conducted by the principal were “authorized by law” for the purposes of Collins. More specifically, they were authorized by (at least2 ) s. 197(a.1) of the Education Act of Alberta. The searches and seizures conducted by the principal were therefore not “unreasonable” for the purposes of s. 8 of the Charter. However, the principal’s own legal authority was not transferable or otherwise applicable to the subsequent searches and seizures conducted by Cst. Ingram.
B. The Legality of the Searches and Seizures by Cst. Ingram
i. Third-Party Consent as a Legal Basis for Searches and Seizures
[73] Since the searches and seizures conducted by Cst. Ingram were not supported by a warrant, the onus lies upon the Crown to prove that they were reasonable. The source of legal authority relied by the Crown is the consent of the complainant.
[81] More recently, the Supreme Court of Canada has stated on two occasions that there is no third-party consent doctrine in Canada. In Cole, Fish J. rejected the proposition that the school, as the co-owner of the laptop, could consent to its release to the police. In declining to follow American authority on this subject, he concluded at para. 79 that “I would therefore reject the Crown’s contention that a third-party could validly consent to a search or otherwise waive a constitutional protection on behalf of another.” This conclusion was reiterated in Reeves at paras. 48-52 where Karakatsanis J. rejected attempts to limit Cole to its own facts and interpreted Fish J.’s decision as “concluding that the doctrine of third-party consent should not be adopted in Canada.”
83] At the end of the day, I agree with RDC, Professor Penney, and the many cases they cite which hold that a third-party recipient of electronic communications may validly consent to the release of their own copies of those communications from their own devices, and that such consent will provide a legal basis for any resulting search or seizure by the police. In fact, I agree that such consent can sometimes be provided by a fourth party, such as a child’s parents: R v PM, 2025 ONCA 208 at paras. 16-28. As Molloy J. wrote in R v Amdurski, 2022 ONSC 1338 at paras. 35-44:
40 Likewise, consider the circumstances of a person who receives a death threat on her cellphone. Surely, that person is entitled to turn that information over to the police for her own protection and the police should not be required to obtain a search warrant before looking at it and acting upon it. In my view, it is nonsensical to suggest that the rights of the alleged perpetrator should prevent the police from acting on the threat without first obtaining a search warrant for the complainant’s phone.
[84] As noted above, however, I respectfully disagree with the notion that the sharing of communications, and the resulting potential for a consent release, effectively negates a communicant’s reasonable expectation of privacy. That view is inconsistent with Marakah at paras. 40-45, and Campbell at para. 66. The mere possibility that a recipient of a communication might consent to its release diminishes but does not negate a sender’s reasonable expectation of privacy in the electronic communication.
[85] I also respectfully disagree with the proposition that the occurrence of third-party consent will negate the presence of state action. If for example, a police officer actively seeks out copies of electronic communications and obtains them from a third-party by way of that party’s consent, the consent does not negate the occurrence of the state action. In determining the presence of state action, the focus should be on whether the police passively accepted the evidence or actively sought it out, not on whether there was a valid consent.
[87] Having said that, I admit to some significant difficulty in reconciling this conclusion with the Court’s outright rejection of the third-party consent doctrine in Cole and Reeves. Those cases might be distinguishable on the basis that they involved the release of physical computers owned by the accused and potentially containing vast troves of irrelevant personal information as opposed to a discrete number of electronic files containing communications sent by the accused to a third-party and stored on that third-party’s own device.
[88] In any event, a more fulsome discussion of this issue in the present case is unnecessary since I find that no valid consent has been proven by the Crown.
ii. Did the Complainant Consent to the Release of his Electronic Conversations with the Accused?
[89] In Wills at para. 69, Doherty J.A. held that when assessing the validity of a consent provided by the subject of the search, i.e. a “first party consent”, the Crown must prove the following requirements:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
[92] Even applying a more flexible approach to the skeletal facts of the present case, I find that the Crown has not proven that the complainant gave a voluntary and informed consent to the release of the electronic conversations to the police. There is simply no factual basis upon which it can be concluded that the complainant’s consent – occurring as it did in the inherently coercive environment of the “principal’s office” – was either voluntary or informed. In fact, there are no facts whatsoever respecting the two meetings between the principal and the complainant beyond the date of their occurrence.
iii. Conclusion on the Unreasonableness of the Searches and Seizures Conducted by Cst. Ingram
[94] Since the Crown has not proven that the complainant gave a voluntary and informed consent to the provision of the evidence at issue to the police, and since the Crown relies upon no other source of legal authority, I find that the searches and seizures of the electronic files by Cst. Ingram were not authorized by law and were therefore unreasonable for the purposes of s. 8 of the Charter.
VII. Conclusion
[95] In conclusion, I find that the accused had a reasonable expectation of privacy in the electronic files obtained by Cst. Ingram, and that the resulting searches and seizures were not authorized by law.
[96] For these reasons, the accused’s request for a declaration that the electronic files at issue were seized in violation of s. 8 of the Charter is granted. The possible exclusion of the evidence pursuant to s. 24(2) is not addressed in this decision.
