Charter Rights Can Exclude Electronic Messages

Jan 26, 2018

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Happy man using smartphone at modern coffee shop, he chatting Online Messaging on mobile phone.

To what extent are the text messages we send and receive “private”, legally speaking?

In R v Marakh 2017 SCC 59, a criminal case, the Supreme Court answers this question, ruling that the sender of a text message retains privacy interests in the text even when it is on the recipients device.

In Marakh the accused was convicted partly on the basis of incriminating text messages that were sent to an accomplice. The police intercepted the messages from the accomplice’s phone.

The messages that were on the phone of the accused had already been ruled inadmissible on the basis that the accused had a reasonable expectation of privacy in his own phone, and so was protected against unreasonable search and seizure under s. 8 of the Charter.

The question for the Court was the extent to which the text messages received by and intercepted from the phone of the accomplice were protected by privacy interests and s. 8 rights of the accused. In other words, did the accused still have a reasonable expectation of privacy in the texts after they’d been sent to the accomplice?

To resolve this issue, the Court assesses privacy interests in the texts in the “totality of the circumstances”.

The Court held that to enjoy protections guaranteed by s. 8 of the Charter, it must be established that:

  • the claimant had a direct interest in the subject matter of the search (i.e. the text message(s));
  • the claimant had a subjective expectation of privacy in the subject matter of the search (i.e. the electronic conversation); and
  • the claimant’s subjective expectation was objectively reasonable.

In determining whether the subjective expectation was objectively reasonable, the Court considers several factors:

  1. the place where the search occurred;
  2. the private nature of the subject matter – whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and
  3. control over the subject matter. Control over the subject matter that was searched is a critical element in determining someone’s personal connection to it[1].

The Court found that text messages exist in an electronic space, which is a “place” for purposes of the first fact; the texts in this case were of a private nature; and control does not need to be exclusive. It did not matter that the accused had sent the text message to someone else, and so did not have exclusive control over them. “Shared” control of the text messages was sufficient for the accused to have an expectation of privacy in the texts.

Even though the recipient of a text message can presumably disclose the content of the message with anyone, this does not eliminate the sender’s privacy interests. In other words, a sender who maintains a subjective expectation of privacy in a text could hold an objectively reasonable expectation in the totality of the circumstances.

The Court found that the accused did have a reasonable expectation of privacy in the texts even though they had been sent to the accomplice. As a result, his s. 8 Charter rights were breached when the police intercepted his texts from the accomplice’s phone.

Though the intercepted texts were important to the prosecution’s case, the Court ruled the texts inadmissible, excluding them under s. 24(2) of the Charter[2]:

Though the exclusion of the evidence would eviscerate the Crown’s case against Mr. Marakah on serious charges, “[i]t is . . . important not to allow . . . society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where . . . the impugned conduct was serious and worked a substantial impact on the appellant’s Charter right”… That is this case[3].

 

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