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On December 7, 2017, the Supreme Court of Canada released a landmark decision on digital privacy. In the age of digital communications, this decision from our highest court was long overdue.  Prior to the decision in R. v. Marakah, the Ontario Court of Appeal ruled there was no privacy interest in a text once it had been sent.

Prior to the Supreme Court’s ruling in R v. Marakah, the police could have illegally searched one person’s home and cell phone and found texts or emails sent by a third party.  That third party would not be able to challenge the illegally obtained evidence involving digital communications because they would not have had standing.

The law in Ontario prior to the Supreme Court’s ruling, in some instances, could have encouraged police mischief.  Meaning, police could have intentionally violated one person’s rights under the Charter of Rights and Freedoms (Charter) to obtain digital evidence against another person that would then have no ability to challenge the illegal search in Court.

The Supreme Court decision in R. v. Marakah gives people standing to challenge texts or emails that they have sent on another person’s phone.


Facts in R. v. Marakah

Mr. Marakah and Mr. Winchester had a conversation through text messages regarding an illegal firearms transaction.  Both Mr. Marakah’s and Mr. Winchester’s homes and cell phones were searched.  At trial, the warrant for the search of Mr. Marakah’s home was found to be invalid and the text messages from his phone could not be used as evidence against him.  The trial judge decided that Mr. Marakah had no standing, however, to challenge the admissibility of text messages extracted from Mr. Winchester’s phone.  The admission of the text messages resulted in Mr. Marakah being convicted.  The Court of Appeal dismissed Mr. Marakah’s appeal, indicating that Mr. Marakah did not have an expectation of privacy, and thus did not have standing to challenge the admission of text messages from Mr. Winchester’s phone.

The Supreme Court of Canada allowed the appeal and ordered an acquittal.  The Court held that text message conversations can in some cases attract a reasonable expectation of privacy, even if the messages are stored on another person’s device.


Section 8 applied to Digital Communications

Section 8 protection may be available if a claimant demonstrates a direct interest in the subject matter of the search (in this case the electronic conversation between the two parties), a subjective expectation of privacy, and that this subjective expectation was objectively reasonable.   There are a number of factors relevant in determining whether the subjective expectation of privacy was objectively reasonable in the circumstances: the place where the search occurred, the private nature of the subject matter, and control over the subject matter.

The Court decided that Mr. Marakah had a direct interest in the electronic conversations.  Mr. Marakah had a subjective expectation the messages would remain private, as he had asked Mr. Winchester to delete the messages on multiple occasions.  Mr. Marakah’s expectation was also objectively reasonable.  The Court indicated that if the place of search was not Mr. Winchester’s phone, but a private electronic space accessible only by Mr. Marakah and Mr. Winchester, there would be a clear expectation of privacy.  The Court stated that even if the place of search was viewed as Mr. Winchester’s phone, this would reduce but not negate the expectation of privacy.


Section 24(2)

In deciding to exclude the evidence in Marakah under section 24(2) of the Charter, the Court conducted the three-part Grant analysis.  First, the fact that the search was an infringement of Mr. Winchester’s section 8 rights, not Mr. Marakah’s, did not attenuate the severity of the breach.  Second, the illegal search of the other person’s phone completely destroyed the privacy interest Mr. Marakah had in the conversation.  Third, the reliability and importance of the evidence to the Crown’s case favoured admission, but this third factor was outweighed by the first two.

The majority, held that a lack of control over the subject matter is not fatal to whether the expectation of privacy was objectively reasonable.  Thus, control is only one factor to be considered in the totality of circumstances.  Control is not lost because another person possesses or can access the information.  At para 43, the majority decision states: “The issue is not who owns the device through which the electronic conversation is accessed, but rather whether the claimant exercised control over the information therein.”

The majority decision noted that not every communication through electronic medium will result in a reasonable expectation of privacy.  Messages sent to large groups, or posted on social media certainly would not, and “different facts may well lead to different results”.  The majority decision addressed the concerns that a sexual predator sending messages to a child, or an abusive partner to their spouse, would be able to claim a privacy interest in their texts.  The Court stated: “the fruits of a search cannot be used to justify an unreasonable privacy violation.  To be meaningful, the section 8 analysis must be content neutral.”  The majority decision notes that police can obtain a prior warrant to avoid this issue, and that standing is simply the ability to argue one’s case.  Standing does not mean the argument will succeed.

The companion case to Marakah, R. v. Jones 2017 SCC 60, answered a very important question in relation to establishing a subjective interest in privacy.  Jones indicated that in relation to a section 8 Charter application, a person is entitled to rely on the Crown’s theory that that person authored the message in order to establish subjective expectation of privacy.  This means that standing can be established in this circumstance without an accused being required to make any admission or give evidence.

R. v. Marakah is a landmark decision regarding the reasonable expectation of privacy and standing in electronic communication. We live in an era where increasing amounts personal information are transmitted by electronic means. The shift of focus from ownership of the device to characterizing of the subject matter as an electronic conversation is an important step.  This is also an important recognition of what is contained in text message conversations: intimate and personal information vital to one’s biographical core, when on a personal phone, are most certainly private.

Marakah is a step in the right direction in terms of preventing police misconduct and lazy tactics.  It means that police must act in accordance with the Charter, regardless of who might end up being prosecuted as a result of an investigative step. In essence, Marakah recognizes the reasonable expectation of privacy in relation to our personal electronic communications over text messaging, and that standing should correspond accordingly.

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