Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy
In a Supreme Court of Canada ruling in a criminal case called R. v. Marakah, which was handed down just this past week, the nation’s top Court framed the essential questions in the opening lines:
Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?
The accused, Nour Marakah, had been charged and convicted of trafficking in handguns. Among the evidence used against him were certain incriminating text messages that he had sent to an accomplice’s iPhone. The messages on his own phone (from where those messages to the accomplice were sent) had already been ruled inadmissible, since their use was found to have breached his Charter right to be protected against unreasonable search and seizure.
The Supreme Court of Canada ruled that the text messages that had been intercepted from the accomplice’s phone were private in the circumstances, and also inadmissible on the same Charter-based grounds.
The Court quickly added that outcome was not automatic: different facts may have led to a different result. Among other things, the matter hinged on whether Marakah had a reasonable expectation that the texts would remain private.
From a general standpoint, the Court discussed the relevant legal analysis to be applied in these cases. This involved evaluating the “totality of the circumstances” including the elements of whether the sender has control over the messages once they are sent. Someone who sends texts messages has meaningful control over what they sent, and how and to whom they disclose the information. For the purposes of the Charter’s s. 8 protections against unreasonable search and seizure, that control is not lost merely because another individual possesses or can access it. In other words, even though the sender does not have exclusive control over his or her personal information – only shared control – that does not preclude him or her from reasonably expecting that the information will not be subject to state scrutiny.
Returning to Marakah’s specific case, he had an objectively reasonable expectation of privacy of the text messages on the iPhone of his accomplice. He fully expected their conversation to be private, and had repeatedly asked the accomplice to delete the incriminating messages from his iPhone. The “place” of the police search (i.e. the accomplice’s iPhone) was a private electronic space accessible the accomplice, so this factor also heightened Marakah’s legitimate privacy expectations.
In entertaining, but ultimately rejecting, the policy concerns around recognizing the privacy of text messages in some circumstances, the Court added:
There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter.
The Court found that there had been a breach of Marakah’s Charter rights in this case, and that admitting the text messages from the accomplice’s iPhone as evidence would bring the administration of justice into disrepute. Without those texts, he would have been acquitted; to allow the conviction to stand would be a miscarriage of justice.
Although this Supreme Court ruling germinated from a criminal case with Charter implications, it may have eventual repercussions in the civil realm, including Family Law trials.
What are your thoughts on this ruling? Should text messages be considered private at all times?
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 2017 SCC 59 (CanLII).