11 December

R v Marakah and R v Jones: Supreme Court’s decisions support Canadians’ expectation of privacy in electronic communications they send

By: Jeffery Couse

On Friday, December 8, 2017, the Supreme Court released two decisions establishing that Canadians may have a reasonable expectation of privacy in electronic communications they (may) have authored which are found on devices or networks over which they have no control.

In R v Marakah, 2017 SCC 59, the police obtained warrants to search the home of the appellant and his accomplice. The police seized the appellant’s BlackBerry and his accomplice’s iPhone. Incriminating messages were found on both. At trial, the appellant successfully argued against the admission of the text message found on his phone. However, the application judge found that the appellant had no standing to argue that the text messages found on his accomplice’s iPhone should not be admitted. The appellant was convicted of multiple firearms offences.  The majority of the Ontario Court of Appeal agreed that the appellant lacked standing and dismissed the appeal.

The issue before the Supreme Court was whether an accused “can never claim s. 8 protection for text messages accessed through a recipient’s phone because the sender has no privacy interest in the messages if they are not contained within his or her own device.”

In this respect, the majority disagreed with the application judge and the Ontario Court of Appeal, finding that an accused can have a reasonable expectation of privacy in sent messages. Importantly, however, the Supreme Court emphasized that not “every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection.” Whether an accused has a reasonable expectation of privacy in a sent text message (or other electronic communication) will depend on the particular facts of the case.

The majority found that the appellant had a reasonable expectation of privacy in the messages he sent to his accomplice’s iPhone. The Supreme Court noted that people generally expect private electronic conversations to stay private, and as a result people often discuss personal matters. Indeed, the majority observed, “it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging. There is no more discreet form of correspondence.”

The majority acknowledged that when an individual sends a text message, they lose some control of what happens to that text message, running the risk that the recipient will share it with others. However, the majority noted that an individual who sends a text message to a specific individual nevertheless has reasonable expectation that the state will not be able to access those communications.

The majority found that the appellant had standing to challenge the validity of the search, and found that the search was unreasonable. The majority excluded the evidence under s. 24(2) and refused to apply the curative proviso in s. 686(1)(b)(iii), which allows the court to dismiss an appeal where the court concludes that the verdict would not have been different had the error not occurred. As a result, the appeal was allowed, the convictions were set aside, and the appellant was acquitted.

In R v Jones, 2017 SCC 60, the police seized text messages from a Telus account possibly associated with the appellant’s co-accused. The text messages were obtained pursuant to a production order under s. 487.012 (now s. 487.014) of the Criminal Code.  Some of the text messages seized were sent from a phone registered to the appellant’s wife, but used by the appellant. The text messages concerned the trafficking of firearms.

The appellant did not admit that he was the author of the text messages at trial, but the Crown’s theory was that he was the author. The trial judge found that the appellant lacked standing to challenge the production order.

One of the issues before the Supreme Court was whether the appellant could rely on the Crown’s theory that he authored the text messages in order to challenge the production order. In order to challenge the reasonableness of a search, the accused must establish that they have a subjective expectation of privacy in the place or thing searched. However, the appellant was in a catch-22: if he admitted he was the author of the text messages, then he could potentially challenge production order, but admitting he was the author of the text messages would effectively require the accused to incriminate himself. Recognizing the unenviable position of the accused, the majority found that the appellant could rely on the Crown’s theory for standing on the s. 8 Charter argument. The majority reasoned that the threshold for a subjective expectation is a low one, and that an accused should not have to incriminate himself in order to hold the state to its constitutional obligations.

However, the majority ultimately upheld the production order as valid, and dismissed the appeal.

Taken together, Marakah and Jones strengthen Canadians’ right to be free from unreasonable search and seizure by removing barriers that have in the past prevented accused from bringing s. 8 claims. Marakah makes it possible for accused to bring s. 8 claims to challenge the admissibility of communications they may have authored, but which are found on a device in which the otherwise possess no interest (such as someone else’s cell phone). Jones, on the other hand, allows the accused to establish a subjective expectation of privacy without incriminating themselves.   The decisions will focus courts on what is properly at the heart of the s. 8 inquiry: whether the accused has an objectively reasonable expectation of privacy in communications seized by the police.

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