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Appeal Court Rules on Privacy of Text Messages

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Appeal Court Rules on Privacy of Text Messages

A just-released criminal case from the Ontario Court of Appeal has some interesting things to say about the privacy of text messages whether they are subject to constitutional protections – and it may have some trickle-down effect in the Family Law realm someday.

The accused was convicted of multiple firearms offences, which convictions hinged squarely on certain text messages between two other parties (one of whom was a co-accused) in which gun trafficking was discussed.

In considering whether there had been a breach of the Charter in connection with the admission of that text evidence, an application judge held that there was no expectation of privacy in connection with the text messages found on the co-accused’s iPhone. Specifically, that judge said:

… I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

The Appeal Court was asked to rule on whether this conclusion by the application judge was correct. Two out of three judges on the panel agreed that it was:

There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient. In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.

For example, the use of pseudonyms and coded language in text messaging (generally in the context of criminal activity) is often used to disguise who is speaking in a text message and the subject matter of the message.

Because many contextual factors can tip the balance in either direction, it must be that the objectively reasonable expectation of a text user in a particular case should be assessed on a case-by-case basis, not on a broad presumption about how text messaging is used in society…

Admittedly, this was a criminal case, and it was handed down by the court along with two other criminal cases, R. v. Jones and R. v. Smith, each of which had similar outcomes. How and whether these rulings affect other areas of the law, including Family Law, still remains to be seen.

For the full text of the decisions, see:

R. v. Marakah, 2016 ONCA 542 (CanLII)

R. v. Jones, 2016 ONCA 543 (CanLII)

R. v. Smith, 2016 ONCA 544 (CanLII)

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