R. v. Marakah: The SCC’s Latest Opinion on Text Messages & Privacy

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On December 8th, 2017, the Supreme Court rendered its judgement for R. v. Marakah, a constitutional law case concerning firearms trafficking offences, search and seizure, text messages, privacy, and the admissibility of evidence. The Canadian Civil Liberties Association intervened in support of a strong privacy interest in electronic communications, regardless of their content. The CCLA’s factum can be found here.

The majority’s decision, penned by then-Chief Justice McLachlin, is being touted as a victory by privacy advocates. Gerald Chan, a lawyer for the B.C. Civil Liberties Association has called the ruling a victory for digital privacy and expressive freedom.

The Court found that the sender of an electronic text message has a reasonable expectation of privacy in those messages, even on the recipient’s phone. In coming to this conclusion, the Court applied the Cole test to Marakah’s situation. They found that: 1) the subject matter of the search was the electronic conversation (para 17); 2) Marakah, as author of the communication, had a direct interest in the subject matter (para 21); 3) by virtue of his asking the recipient to delete the messages, Marakah had demonstrated a subjective expectation of privacy in the subject matter (para 22); and 4) Marakah’s expectation of privacy was objectively reasonable, considering the place, nature, and his control over the subject matter (para 41).

It was this last point that was most contentious for the Court. Does the sender of a text message have control over what happens to it once it is out of their hands? The majority of the Ontario Court of Appeal had accepted the argument that Marakah lost control over the message upon sending it. The majority of the Supreme Court, however, argued that Marakah purposely chose a private medium, that is, text message, through which to send his communications.

Once a reasonable expectation of privacy is found, the state must have a warrant in order to make seizure of the subject matter comply with s.8 of the Charter. In this case, Marakah’s s.8 rights had been violated due to the lack of warrant, overturning the Ontario Court of Appeal’s decision and effectively rendering his conviction for firearms trafficking null under s. 24(2) of the Charter (para 82).

Through this decision, the court yet again affirms electronic communication as a powerful and increasingly important form of communication that attracts a strong privacy interest. In a time when the majority of Canadians communicate intimate information via electronic means frequently and unreservedly, this ruling brings Canadian criminal law in line with a modern reality.

The Supreme Court justices in the minority for this decision as well as other critiques worry about its wider implications. For example, what if the recipient of the message wants to disclose the record to the police (para 89)? Justices Rowe and Moldaver both point out that this scenario could lead to a “perverse” result: a complainant being prevented from reporting to police due to the privacy interests of a person alleged to have harmed that complainant. Another worry involves the case-by-case model for determining reasonable expectation of privacy: will this variable method stress an already overburdened criminal justice system and contribute to the general public’s difficulty in predicting which way a reasonable expectation of privacy analysis is going to go?

Regardless of the longer-term, procedural implications of this judgement, any argument about the undesirability of protecting communications that prove criminal activity, be it firearms trafficking or child pornography, comes up against the majority of the Supreme Court’s clear stance on this issue: “the fruits of a search cannot justify an unreasonable privacy violation…To be meaningful, the section 8 analysis must be content neutral” (para 48).

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.