Law360 Canada (June 3, 2026, 11:53 AM EDT) --

John L. Hill

K.G. was 17 years old, living with her parents while attending Grade 12. She created a profile on seekingarrangements.com, a website that connects “younger women with older men.” She misrepresented her age as 18 or 19 and matched with Shane Suman, a 47-year-old man who went by the name “Rico.”

Rico communicated by text and agreed to pay K.G. $300 for sex. At approximately 1 a.m. on Nov. 19, 2019, he sent an Uber to K.G.’s home to pick her up and take her to his condominium. Before having sex, Rico suggested to K.G. that she was not actually 18 years old. K.G. confirmed she was only 17. Nevertheless, he gave K.G. alcoholic drinks and had sex with her. Rico paid her $300 and told her to bring identification the next time she came so he could confirm her age.

On Nov. 25, 2019, Rico again sent an Uber to pick up K.G. The young woman did not bring identification as he had requested. Again, they had drinks and then had sex. This time, Rico paid K.G. $150.

When K.G. returned home, her mother searched K.G.’s cellphone and found messages from Rico. She took screenshots of some of the messages and called police. The police attended at the family home and began reviewing some of the texts but stopped after determining that K.G.’s privacy was at stake. The police removed the SIM card and seized the phone as evidence, “possibly to obtain a warrant.” Initially, K.G. did not want to speak to the police or involve them in the matter. However, she later provided a videotaped statement to the police and consented to a search of her phone.

The search revealed Suman’s address and the licence plates of the Uber cars dispatched to pick up K.G. Subsequently, the police obtained a production order for records Uber held regarding the two trips. These records revealed the email address linked to the Uber account associated with those trips. A second production order for the condominium records led the police to Shane Suman.

York Regional Police arrested Suman on June 17, 2020. He was charged with communicating with K.G., a person under 18 years old, for the purpose of facilitating the commission of an offence; obtaining sexual services for consideration; and failing to comply with release orders. A search of his condominium was conducted pursuant to a search warrant, and the police seized several of his devices. At the time the search warrant was executed at Suman’s condominium, a 22-year-old woman was present. She informed the police that Suman had paid her for sex. This woman became a second complainant in the case.

On June 25, 2020, Suman’s counsel informed the Crown that privileged solicitor-client communications were likely on his seized devices. Crown counsel instructed the police not to search the seized devices. Nonetheless, these instructions were not communicated to all officers, and an overbroad production order was prepared for records from TextNow, resulting in the discovery of over 42,000 messages. These included 91 messages between Suman and his lawyer.

Suman brought an application alleging that the warrantless search of the text message conversation on K.G.’s phone violated his s. 8 Charter rights and that the seizure of privileged communications violated his ss. 7 and 8 Charter rights. He sought a stay of proceedings and, in the alternative, the exclusion of evidence under s. 24(2) of the Charter. The matter proceeded to trial, but Suman was acquitted. The Crown appealed. The Ontario Court of Appeal’s decision was delivered on June 1 (R. v. Suman, 2026 ONCA 378).

The key issue was whether Suman had standing under s. 8 of the Charter to challenge the police review of text messages found on K.G.’s cellphone. To establish standing, he had to show a reasonable expectation of privacy in those messages.

The court found that Suman had a direct interest in the messages and a subjective expectation that they would remain private. However, the court held that his expectation of privacy was not objectively reasonable. The court emphasized that privacy rights are assessed in light of broader societal values, including the protection of children from sexual exploitation.

Several factors weighed against recognizing a reasonable expectation of privacy. These included that K.G. was a 17-year-old minor and the respondent was a 47-year-old adult. The messages were used to arrange sexual encounters in exchange for money. Suman continued to communicate with K.G. after learning that she was only 17. K.G. was a stranger to him, whom he met through a website that connects younger women with older men. K.G.’s mother owned and paid for the cellphone, had access to it and monitored its use. Both K.G. and her mother voluntarily provided the messages to the police. Finally, K.G. later expressly consented to the police searching her phone.

The court stated that adults who communicate with minors to arrange sexual encounters cannot reasonably expect those communications to remain private from parents or from police investigating potential offences. The court also relied on recent Ontario authorities holding that there is no reasonable expectation of privacy when electronic communications are used to commit an offence against the recipient (R. v. Chow, 2022 ONCA 555; R. v. Singh, 2024 ONCA 66).

Here, the text messages facilitated offences involving obtaining sexual services from a person under 18 and communicating for that purpose. Because the communications were allegedly part of the criminal conduct itself, Suman could not claim constitutional protection of privacy for them. Since Suman had no reasonable expectation of privacy, he lacked standing to challenge the police review of the messages, the seizure of K.G.’s phone, or the police failure to file a report regarding the seizure. As a result, there was no s. 8 Charter breach arising from the search of K.G.’s phone.

The Crown had already conceded separate Charter breaches arising from the search of Suman’s own phone and the improper acquisition and handling of solicitor-client communications under the TextNow production order.

The Court of Appeal left intact the application judge’s decision excluding the improperly obtained evidence. However, those later breaches did not justify excluding the messages obtained from K.G.’s phone, as they were separate investigative steps conducted months later.

Suman argued that the text messages should still be excluded as a remedy for abuse of process. The court rejected this argument, finding that excluding the solicitor-client communications was already an adequate remedy for the police misconduct.

Suman also attempted to assert that his right to be tried within a reasonable time under s. 11(b) of the Charter had been violated. The court declined to consider the issue because Suman had not appealed the earlier ruling rejecting the delay claim. A respondent cannot effectively launch a cross-appeal by raising an “additional issue” in response to a Crown appeal. He remained free to raise any s. 11(b) arguments at the new trial if appropriate.

The Court of Appeal held that the application judge erred in finding that Suman had a reasonable expectation of privacy in the text messages exchanged with K.G. Because he lacked standing to challenge the search, the messages should not have been excluded. The Crown’s appeal was allowed, the text-message evidence was admitted, and a new trial was ordered.
 
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com. 

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