Legal Research

Is It a Crime to Read Your Spouse?s Emails?

By Simon Fodden

My mother used to say something to the effect that “gentlefolk do not read each others’ mail.” Of course, she didn’t reckon with spies or spouses in distress. It comes as no surprise to me, a one-time family law prof, that, as the Huffington Post reported yesterday, a Michigan man at odds with his wife got hold of her password and read her emails in order to confirm her affair. Very much a “dog bites man” story, you’d think.

Not so, apparently — thanks to prosecutor Jessica Cooper, who has charged the husband with “felony computer misuse,” which has a maximum penalty of five years imprisonment.

Of course, because this is a family dispute, the facts are mostly allegations at this point, though the husband has gone on US national TV to explain why he broke into his wife’s email account. Some reports have it that he also installed a keystroke recorder on her account.

This side of the border, Criminal Code s.184(1), dealing with interception of communications, seems as though it would apply here to the equivalent behaviour:

Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

There are a number of saving provisions, none of which would clearly apply in such a case — unless it could be argued that circumstances warranted implying the spouse’s permission (s.184(2)(a)), perhaps where her behaviour or that of her lover put the children in jeopardy — though this seems quite a stretch.

I don’t know of a case in Canada where criminal charges have been laid of this kind in connection with a marital dispute. In what circumstances, if ever, would it seem warranted? That is, where would it be appropriate for this to be the only criminal charge?

Full post as published by Slaw.ca on December 29, 2010 (boomark / email).