Reasonable Expectations to Digital Privacy: The Marakah Effect

rawpixel-740326-unsplash (1)

On November 16th, the Ontario Court of Appeal (ONCA) released its reasons for the R v Richie, 2018 ONCA 918 decision, in which the court applied the Marakah framework on reasonable expectations to digital privacy to overturn Mr. Richie’s conviction and order a new trial.

The appellant, Mr. Richie, was convicted of several drug-related offences at the Superior Court of Justice in 2017, and sentenced to nine and a half years in custody. This conviction was largely founded based on communications that were seized from the Blackberry device of another accused. At trial, prior to the Marakah decision, the appellant unsuccessfully attempted to exclude these communications on the grounds that the seizure violated his rights to be protected from unreasonable search and seizure under section 8 of the Charter.

The court was asked the question in R v. Marakah, 2017 SCC 59 as to whether or not an individual has a reasonable expectation of privacy under section 8 of the Charter in regard to their digital communications once they are no longer contained within their own device.  To answer this question, the SCC conducted a four-step analysis to determine if one can reasonably expect their digital communications to remain private once they are sent out. The questions the court asked were,

  1. What was the subject matter of the alleged search?
  1. Did the claimant have a direct interest in the subject matter?
  1. Did the claimant have a subjective expectation of privacy in the subject matter?
  1. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

On this current appeal, the Crown conceded that the answers to these questions result in a clear violation of the appellant’s section 8 rights. As such, the only matter for the ONCA to determine was whether the evidence should be excluded under section 24(2) of the Charter.

The court conducted a Grant analysis, asking whether the Charter-infringing conduct was serious, whether there was real impact on the appellant’s Charter­-protected interests, and whether there is an overwhelming societal interest to try the case on its merits.

Acknowledging that the appellant’s Charter rights were seriously infringed upon in an impactful manner, the court quoted McLachlin C.J. in Marakah to discuss the societal interest as follows,

As the Court recognized in Grant, at para. 84, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”. 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”: Paterson, at para. 56. That is this case.

On balance, I conclude that the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2) of the Charter.

Applying this same analysis, the court arrived at the identical conclusion to exclude the evidence against the appellant and order a new trial.

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