What happens to your privacy interests once you send a text message? The Supreme Court of Canada’s decision in R v. Marakah found that depending on the circumstances, a person does maintain privacy rights on outgoing text messages.
In Marakah, the Supreme Court looked at whether the appellant had a reasonable expectation of privacy in his text messages that were seized pursuant to a search warrant at both his and his co-accused residences.
Background
Mr. Marakah sent his accomplice, Winchester, text messages regarding illegal firearm deals. The police obtained search warrants to search the homes of both men. During the search, police seized Marakah’s Blackberry and Winchester’s iPhone. Police then searched the devices and found the incriminating text messages. During Marakah’s trial, the Crown sought to use the text messages as evidence against him.
At trial, Marakah argued that the text messages were obtained in violation of his section 8 Charter right to be free from unlawful search and seizure. The trial judge held that the warrant for Marakah’s home was invalid and that the text messages could not be used against him. However, the trial judge ruled that Marakah had no standing to argue that the text messages recovered from Winchester’s phone should not be admitted against him.
The text messages recovered from Winchester’s phone were admitted at trial and Marakah was convicted. The Court of Appeal upheld the conviction and agreed that Marakah had no expectation of privacy in the text messages found in Winchester’s phone.
The Supreme Court’s Decision
In analyzing the expectation of privacy, the Supreme Court first had to determine whether text messages could be considered subject matter. Chief Justice McLachlin wrote at para 19:
When a text message is searched, it is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy in the recipient’s “inbox” that the police are really after; it is the electronic conversation between two or more people that law enforcement seeks to access. Where data are physically or electronically located varies from phone to phone, from service provider to service provider, or, with text messaging more broadly, from technology to technology. The s. 8 analysis must be robust to these distinctions, in harmony with the need to take a broad, purposive approach to privacy protection under s. 8 of the Charter . . . The subject matter of the search is the conversation, not its components
The Court then went on to find that Marakah had a direct interest in the subject matter as he was both a participant and author in the text messages. Lastly, the Court found that Marakah expected the contents of the messages to remain private.
Reasonable Expectation of Privacy and Text Messages
Justice McLaughlin made it clear that the analysis for finding whether a text message could attract a reasonable expectation of privacy was very fact-specific, stated at para 5:
The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy.
To assess whether it was reasonable for Marakah to expect privacy in the circumstances, Justice McLachlin looked at the following factors:
1) the place where the search occurred;
2) The private nature of the matter; and
3) Control over the subject matter.
When looking at the place of the search, Justice McLachlin suggests that moving forward, it may be helpful to view that the electronic conversation itself is “every bit as real as physical space”. Another possibility is that the place of the search is the device where the messages are accessed or stored.
With respect to whether the information found was private or biographical, Justice McLachlin finds that “[e]lectronic conversations. . .are capable of revealing a great deal of personal information.” Thus, she continues, preserving that “zone of privacy” from state intrusion is the very purpose of s. 8 of the Charter. This “zone of privacy” can extend beyond one’s own mobile device; it can include private conversations shared with others, such as the instant case.
In looking to the final factor, whether Marakah lost all control over electronic messages he sent to Winchester, Justice McLachlin finds that the cases on this issue are clear: a person does not lose control of information for the purpose of section 8 simply because another person possesses it or can access it. Even when faced with issues of exclusivity as they can arise in this age of technology, Justice McLachlin finds that one can still reasonably expect information to remain safe from state scrutiny. Specifically, Justice McLachlin concludes that the risk that Winchester could have disclosed the text messages following receipt does not negate Marakah’s control over the information continued therein. By choosing to send a text message by way of a private medium to a designated person, Marakah was exercising control over the electronic conversation. The risk that the recipient could have disclosed it, if he chose to, does not negate the reasonableness of Marakah’s expectation of privacy against state intrusion.
Ultimately, and decisively for the purposes of this appeal, Justice McLachlin held that Marakah’s subjective expectation that his electronic conversation with Winchester would remain private to be objectively reasonable. Finding the search of Winchester’s phone to be in breach of s.8, Justice McLachlin allowed the appeal, overturned the convictions, and entered acquittals
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.
