Supreme Court of Canada Finds That Some Texts Are Considered Private

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about the topic of whether there is a reasonable expectation of privacy in text messages. The Supreme Court of Canada (“SCC”) ruled last week that Canadians can expect the text messages that they send to remain private even after they reach their destination (i.e. depending on the circumstances, there may be a reasonable expectation of privacy in text messages even after they have been sent to another person).

In a 5-2 ruling, the SCC in R. v. Marakah set aside the firearms convictions of a man whose incriminating text messages were found on the phone of an alleged accomplice by Toronto police.

WHAT HAPPENED?

An Ontario man, Nour Marakah, sent text messages regarding illegal transactions in firearms to his accomplice, Andrew Winchester. The police obtained and executed warrants for both Marakah’s and Winchester’s homes. While conducting the search, the police found Marakah’s Blackberry and Winchester’s iPhone and proceeded to search both devices, which revealed the incriminating text messages. These messages were then used as evidence to charge Marakah.

At trial, Marakah argued that the messages should not be admitted as evidence against him because they were obtained in violation of his rights against unreasonable search or seizure under the Canadian Charter of Rights and Freedoms (“Charter”).

The Ontario application judge found that the warrant for Marakah’s home had been invalid and that the text messages recovered from his own Blackberry could not be used against him. However, the court admitted the text messages from Winchester’s iPhone as evidence. Based on these messages, Marakah was convicted of multiple firearms offences.

The Court ultimately found that while someone who sends a text message has a reasonable expectation of privacy, this expectation ends when the message reaches the intended recipient.

Marakah appealed to the Court of Appeal, where he was unsuccessful. The majority of the Court agreed that Marakah could have no expectation of privacy in the text messages retrieved from Winchester’s iPhone, and therefore could not make a case against their admissibility. Marakah appealed further to the SCC.

SUPREME COURT OF CANADA RULING

The SCC allowed Marakah’s appeal, set aside the convictions and entered acquittals on all charges against him.

The Court found that Marakah had a reasonable expectation of privacy concerning his text messages. Therefore, the texts used as evidence to convict him had violated his guaranteed right to be protected against unreasonable search or seizure under the Charter.

In this case, Marakah was found to be the author of the text messages that he expected to remain private.  He had asked the recipient of the messages, Winchester, on numerous occasions to delete the messages. Marakah’s conviction was thrown out because the search was unreasonable and violated his right under section 8 of the Charter.

Chief Justice Beverly McLachlin, writing for the majority, stated,

I conclude that depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.

The SCC did set out a four-step test to determine if and when one can reasonably expect privacy:

  1. What was the subject matter of the alleged search?
  2. Did the claimant (i.e. the person claiming privacy) have a direct interest in the subject matter?
  3. Did the claimant have a subjective expectation of privacy in the subject matter?
  4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

The SCC found that Marakah had standing to challenge the search based upon the following:

  1. The subject matter of the search was the electronic conversation between Marakah and Winchester;
  2. Marakah had a direct interest in the subject matter;
  3. Marakah subjectively expected the subject matter to be private;
  4. Marakah’s expectation was objectively reasonable.

The Court concluded that without the incorrectly admitted text message evidence, which was found to be inadmissible, Marakah would have been acquitted.

CAUTION BY THE SUPREME COURT OF CANADA

The SCC did caution that the expectation of privacy is not automatic and depends upon the facts of each case and that the outcome may be different in other circumstances. Chief Justice Beverley McLachlin noted,

This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards.

Therefore, we must expect that the law will adapt to changes and developments in technology and communication over time.   As these changes take place in the law, we will continue to provide updates through this blog.

To speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, call Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.