Background
L.T. was convicted at trial of two counts of sexual assault and one count of assault with choking arising from incidents that occurred between 2020 and 2022 during and after a relationship with the complainant, who began dating L.T. when both were teenagers. After their relationship ended in July 2022, the complainant continued living in L.T.’s mother’s home. During this period — and before she had any contact with police — she covertly audio-recorded approximately weekly conversations with L.T. using the voice memo function on her cell phone, primarily to protect herself when their exchanges became heated and L.T. became unpredictable.
In November 2022, the complainant reported the allegations to police. In subsequent police interviews she disclosed the recordings and, on her own initiative, uploaded digital copies to Evidence.com, a police evidence-preservation website. Police received and listened to the recordings without obtaining a search warrant, after consulting among themselves and seeking legal advice from Crown counsel. The recordings contained statements by L.T. referencing the charged offences and were tendered by the Crown at trial as admissions.
L.T. brought a Charter application seeking exclusion of the recordings, arguing (i) the complainant was a state agent when she made them, infringing his s. 8 rights, and (ii) even if she was not, police were required to obtain a warrant before receiving and listening to the recordings. The trial judge rejected both arguments and declined to exclude the evidence under s. 24(2). L.T. appealed.
The Court’s Holding
The Court of Appeal (Copeland J.A., Zarnett and George JJ.A. concurring) dismissed the appeal. On the state-agency issue, the court held that the complainant was plainly not a state agent when she made the recordings: she had no contact with police of any kind at the time, acted entirely on her own initiative, and her primary purpose was self-protection. Applying the test from R. v. Broyles, [1991] 3 S.C.R. 595, and R. v. Buhay, 2003 SCC 30, the court confirmed that police involvement must have some actual impact on the private actor’s conduct before agency can arise. A private actor’s purpose of collecting evidence for potential criminal proceedings, standing alone and without any police involvement, does not make that person a state agent. Trial-level decisions suggesting otherwise were expressly disapproved as inconsistent with Buhay and resting on a misreading of R. v. M.(M.R.), [1998] 3 S.C.R. 393.
On the s. 8 question, the court held that L.T. did not have an objectively reasonable expectation of privacy in the recorded conversations. Although L.T. had a direct interest in the conversations and a subjective expectation of privacy, the totality of circumstances did not support objective reasonableness. The complainant was under no obligation of confidentiality and was free to share what was said with anyone she chose. The police technique of receiving voluntarily produced recordings was not intrusive. L.T. had no control over the recordings. Critically, the covert recording was carried out by a private individual with zero police involvement, and so did not raise the spectre of unfettered state surveillance of private communications that animated the Supreme Court’s decisions in R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Wong, [1990] 3 S.C.R. 36. Because no reasonable expectation of privacy existed in the subject matter of the alleged search, s. 8 of the Charter was not engaged. The court added that, had a breach been found, it would not have excluded the evidence under s. 24(2).
Key Takeaways
- A private person who secretly records conversations before any police contact is not a state agent, regardless of whether they subjectively intend to provide the recordings to police — police involvement must materially affect the private actor’s conduct for agency to arise.
- There is no objectively reasonable expectation of privacy in conversations recorded by a private participant who bears no obligation of confidentiality and voluntarily surrenders the recordings to police; the Duarte/Wong line of authority targets state-directed electronic surveillance, not private recordings later handed to police.
- The court expressly disapproved trial-level decisions that treated an evidence-gathering purpose alone as sufficient to establish state agency, clarifying those decisions misread M.(M.R.) and conflict with Buhay.
- When police consult legal counsel and act in good faith on advice that no warrant is required, and where Charter-protected privacy interests are at most weak, the balance under s. 24(2) strongly favours admission of reliable evidence in serious offence prosecutions.
Why It Matters
This decision provides important clarity for complainants, police, and defence counsel on two frequently litigated issues at the intersection of technology and Charter rights. By firmly rejecting the proposition that a private person’s intent to assist law enforcement can alone transform them into a state agent, the court prevents an unwarranted extension of Charter protection that would effectively immunize accused persons from the consequences of their own statements made to private individuals. The ruling reinforces that the Charter shields individuals from the state, not from the voluntary choices of those with whom they speak.
The court’s treatment of the reasonable expectation of privacy analysis is equally significant. It draws a careful line between the state-orchestrated electronic surveillance condemned in Duarte and Wong and the organic, police-independent recording by a private party who is free to disclose what she witnessed. Canadian criminal practitioners will need to account for this distinction when advising clients on the admissibility of recordings produced by complainants or other private actors, and when framing or opposing Charter applications in similar fact patterns.