Background
In November 2019, Shane Suman — using the alias “Rico” — connected with K.G., a 17-year-old high school student, through seekingarrangements.com, a website designed to pair younger women with older men. K.G. had listed a false adult age on her profile. Via text message, the 47-year-old Suman arranged to pay K.G. for sex, sent Uber cars to collect her from her family home on two occasions, and paid her $300 and $150 respectively. Before the second encounter he had already been told by K.G. herself that she was only 17. When K.G. returned home in the early hours of November 25, her mother discovered the texts, took screenshots, and called police. K.G. later provided a videotaped statement and consented to a search of her phone. That search yielded the address of Suman’s condominium and Uber trip records that ultimately identified him; a subsequent search warrant led to his arrest in June 2020.
Suman was charged with child luring, obtaining sexual services for consideration from a person under 18, and obtaining sexual services for consideration. Before trial he brought a Charter application arguing that police had violated his s. 8 right against unreasonable search and seizure when they reviewed the texts on K.G.’s phone without a warrant. The application judge agreed: he found Suman had a reasonable expectation of privacy in the conversation, that the warrantless search breached s. 8, and that the evidence — including all downstream leads — should be excluded under s. 24(2). Acquittals were entered. The Crown appealed.
Separately, police had also obtained an overbroad production order for TextNow messages that swept in 91 solicitor-client communications. The Crown conceded those messages were properly excluded; only the s. 8 ruling on K.G.’s phone was in dispute on appeal.
The Court’s Holding
Writing for a unanimous three-judge panel, Huscroft J.A. allowed the Crown’s appeal and ordered a new trial. The court held that Suman could not establish the threshold requirement for standing under s. 8 of the Charter: an objectively reasonable expectation of privacy in the text messages on K.G.’s phone. Because standing was defeated, it was unnecessary to revisit the application judge’s s. 24(2) balancing analysis.
On the normative analysis, the court applied the totality-of-circumstances framework from R. v. Marakah (2017 SCC 59) and its own recent decisions in R. v. Knelsen (2024 ONCA 501) and R. v. P.M. (2025 ONCA 208). Several factors weighed decisively against Suman: he was an adult communicating with a stranger minor to arrange a commercial sexual transaction; K.G.’s mother owned the phone and knew its password; the messages were voluntarily provided to police; and K.G. herself consented to a search. That K.G. had misrepresented her age at the outset did not tip the balance — Suman had sought out a young woman on a site explicitly designed to connect younger women with older men, continued after she confirmed she was 17, and could not reasonably rely on her initial misrepresentation to ground a constitutional privacy claim.
Independently, the court applied the exception confirmed in Knelsen and R. v. Gauthier (2024 ONCA 621): there is no reasonable expectation of privacy in an electronic communication that is itself the means of committing the offence against the recipient. Suman’s texts constituted the actus reus of child luring and of communicating to obtain sexual services from a person under 18 (Criminal Code, ss. 172.1, 286.1(2)). Granting him s. 8 protection would, in effect, conscript the victim into shielding the perpetrator’s commission of the offence.
Key Takeaways
- A reasonable expectation of privacy is a normative, context-specific concept; it is not automatically established merely because electronic messages were exchanged in a one-on-one conversation.
- Adults who use electronic communications to arrange sexual transactions with children they do not know cannot assert an objectively reasonable expectation of privacy in those messages — this remains true even where the minor initially misrepresented their age.
- Ontario’s Court of Appeal reaffirmed and extended the “means of the offence” exception: where the communication itself constitutes the crime against the recipient (e.g., child luring, criminal harassment, harassing communications), the sender has no s. 8 standing to challenge a warrantless review of those messages.
- A parent’s voluntary disclosure of a child’s phone to police — particularly where the parent owns and controls the device — significantly undermines any claim to a reasonable expectation of privacy by the third-party sender.
- A respondent cannot use the “additional issues” mechanism on a Crown appeal to seek new Charter relief (here, a s. 11(b) stay) that amounts to a cross-appeal; any s. 11(b) claim must be pursued at the retrial.
Why It Matters
This decision is significant for practitioners navigating the intersection of digital privacy rights and child protection. It consolidates a line of Ontario Court of Appeal authority — Knelsen, P.M., and Gauthier — that limits the breadth of Marakah‘s expansive approach to privacy in electronic conversations. By confirming that neither the normative framework nor the “means of the offence” exception turns on whether the accused knew the victim was a child at the outset, the court closes a potential loophole that accused persons could exploit by pointing to a victim’s misrepresentation of age.
The case also has practical investigative implications: police who receive electronic evidence voluntarily provided by a victim or a victim’s parent — without conducting any independent search — are on firm constitutional ground in acting on that evidence. The decision leaves open, for the Supreme Court of Canada to resolve if it chooses, the broader question of whether Knelsen and Gauthier are fully consistent with Marakah‘s content-neutral approach; the Supreme Court denied leave in both of those cases, allowing this court’s framework to stand.