What is the current state of the law on privacy in electronic communications?

Social norms have developed over time, resulting in the use of electronic conversations as a common form of ordinary discourse between people regardless of the subject matter. Those norms, in my view, include an expectation by reasonable and informed people that an electronic conversation will remain private between the sender and the recipient unless expressly or implicitly agreed otherwise: R v. Pelucco, 2015 BCCA 370, para. 68.

That said, the law is clear that the sender of an electronic communication does not always have a reasonable expectation of privacy in the message stored on a recipient’s device. Rather, the totality of circumstances of the individual case must be considered: Marakah, para. 4; R v. Vickerson, 2018 BCCA 39, para. 54.