Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination?

R. v. Marakah 2017 SCC 59 – Marakah sent text messages regarding illegal transactions in firearms to Winchester, asking him to delete them after reading them. The police obtained warrants to search his home and that of his accomplice, Winchester. They seized Marakah’s BlackBerry and Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Marakah and sought to use the text messages as evidence against him. At trial, Marakah argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search and seizure. The application judge held that the warrant for Marakah’s residence was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that Marakah had no standing to argue that the text messages recovered from Winchester’s iPhone should not be admitted against him. He admitted the text messages and convicted Marakah of multiple firearms offences. The majority of the Ontario Court of Appeal agreed that Marakah could have no expectation of privacy in the text messages recovered from Winchester’s iPhone, and hence did not have standing to argue against their admissibility. The main question on appeal to the SCC was whether Marakah had a reasonable expectation of privacy in the messages he sent to Winchester and whether he could claim s. 8 Charter protection for the text messages accessed through Winchester’s iphone?

The SCC said text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. To claim s. 8 protection, a claimant was required to first establish a reasonable expectation of privacy in the subject matter of the search. Whether a claimant had a reasonable expectation of privacy had to be assessed with regard to the “totality of the circumstances” (factors discussed in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34). The subject matter of the alleged search was the specific electronic conversation between Marakah and Winchester. According to the SCC, Marakah had a direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable. He therefore had standing to challenge the search.

If the place of the search was viewed as a private electronic space accessible by only Marakah and Winchester, Marakah’s reasonable expectation of privacy was clear. If the place of the search was viewed as Mr. Winchester’s phone, this would reduce, but not negate, Marakah’s expectation of privacy, said the SCC. The mere fact of the electronic conversation between the two men tended to reveal personal information about Marakah’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, Marakah exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. A person does not lose control of information for the purposes of s. 8 simply because another possessed it or could access it, said the SCC. The risk that Winchester could have disclosed the text messages did not negate Marakah’s control over the information contained therein. It followed that Marakah had standing to challenge the search and the admission of the evidence, even though the state accessed his electronic conversation with Winchester through the latter’s iPhone.

The SCC noted, however, that not every communication occurring through an electronic medium would attract a reasonable expectation of privacy and grant an accused standing to make arguments regarding s. 8 protection. Different facts could lead to different results (e.g. messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards).  Two of the Justices, Moldaver and Rowe, were concerned as to the consequences of this decision on standing. For example, if the sender has a reasonable expectation of privacy in the record of his digital conversation, what happens when the recipient wants to show that record to the police? Is the SCC now opening the door to challenges by senders of text messages to the voluntary disclosure of those messages by recipients? As Justice Moldaver suggested, this would lead to the perverse result where the voluntary disclosure of text messages received by a complainant could be challenged by a sender who is alleged to have abused the complainant.

Would it make a difference if, for example, the complainant or victim volunteered or gave the text messages to the police rather than if the police seized or took them?  In Marakah, police seized the text messages from Winchester’s iPhone; Winchester did not offer or give them to police, nor did the police seek informed consent from Winchester.  Would that have mattered in the end?  I can’t say, but I suspect we will see a lot of litigation around this issue in the months to come.

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