Text Messages: Is there a Reasonable Expectation of Privacy?

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal recently ruled that text messages seized from a recipient’s phone can be used against the sender in court.

In R v Marakah, 2016 ONCA 542, Nour Marakah appealed his conviction of multiple firearms offences arguing that the text messages used as evidence against him at trial were not lawfully obtained and should have been excluded by the trial judge.

The Court of Appeal ruled 2-1 against Mr. Marakah, stating that he did not have a “reasonable expectation of privacy” in the messages once they had been sent. Mr. Marakah was successful in bringing a section 8 Charter challenge regarding the evidence seized at his home and from his own cell phone. Section 8 of the Charter of Rights and Freedoms protects all Canadians against unreasonable search and seizure.

However, regarding the messages seized from the cellphone of his co-accused, Andrew Winchester, the Court of Appeal sided with the trial judge in finding that Mr. Marakah did not have standing to challenge the search of Mr. Winchester’s phone. The test for establishing a section 8 Charter right is to for the applicant to establish a reasonable expectation of privacy. The Court of Appeal found that once Mr. Marakah had sent the messages, they were no longer under his control. Although he told Mr. Winchester that he expected the messages to be kept confidential, his subjective expectation of privacy in the text messages was not enough to satisfy the test because his expectation of privacy was not objectively reasonable.

The Court found that Mr. Marakah knew that he had no control over what would happen to the text messages once they reached Mr. Winchester’s phone and he therefore could not have a reasonable expectation of privacy in the messages. Text messages, according to the decision, are more akin to an email or letter than voice communication.

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To read the full decision, click here.