Courts across Canada regularly accept digital communications like texts and social media messages, and legal commentary has noted that this type of “social media evidence” is now a routine part of how offences are investigated and proven (see The Unclear Picture of Social Media Evidence to learn more). As long as messages can be shown to be what they claim to be, they can be admitted, and the threshold for doing so is relatively low.
So, the answer is yes, police often can use your text messages as evidence in Canadian criminal proceedings. Courts have accepted them in cases involving drug trafficking, fraud, domestic violence, and uttering threats.
The more relevant question, however, is this: How did police obtain this evidence?
Keep reading to find out why this matters.
How Police Get Access to Text Messages
Police can apply to a judge for a production order requiring your carrier to hand over message records, or a search warrant to access your physical device. To get either, they need to demonstrate reasonable grounds to believe the messages contain evidence of a criminal offence.
Importantly, if police arrest you and seize your phone, they can’t simply scroll through it freely. The Supreme Court confirmed in R. v. Fearon that searching a phone incident to arrest is permitted only in limited circumstances, and the search must be tailored and documented.
Messages already in someone else’s possession are a different situation. If you sent a text to another person and they voluntarily hand it over to police, your legal protections over that content are significantly reduced.
Your Charter Protections
Section 8 of the Charter protects you against unreasonable search and seizure. The Supreme Court has consistently held that Canadians have a reasonable expectation of privacy in their digital communications. Evidence obtained through an unlawful search can be challenged under Section 24(2), and a judge may exclude it from trial entirely.
Don’t Delete Messages
Deleting messages after you become aware of an investigation can constitute obstruction of justice. Beyond the legal risk, deletion is rarely as permanent as people assume. Carriers retain records, backup systems store data, and the person you were messaging still has the conversation on their end.
How Messages Are Used at Trial
Text messages are typically presented as exhibits to establish intent, timelines, communication between parties, or admissions. That said, context matters because tone is lost in text, slang gets misread, and messages pulled from a longer conversation can paint a misleading picture. A skilled defence lawyer can challenge the Crown’s interpretation and make sure the full context is before the court.
Get Started on Your Defence with a Top Criminal Lawyer in Regina
If police have accessed your messages or you believe they’re attempting to, getting legal advice promptly is the right move.
Call Linh Pham at (306)502-5987 for a confidential consultation with a criminal lawyer today.