Expectations of privacy in sent messages, the Supreme Court of Canada case of R. v. Marakah

Whether you’re making dinner plans or maybe sending a “risky text”, our text messages are private. They’re a record of our conversations, our feelings, and sometimes our innermost thoughts. Even handing your phone to a friend or colleague to show them a website or a photo can make your heart race as you see a message appear in the notification bar or you see their thumb move to swipe right or left to the next photo the gallery.

What if you send a message to someone else? Is it still your message or do you lose all control over it once it’s gone out into a chat window or slides into someone else’s DMs? The Supreme Court of Canada answered this burning question in their traditional fashion stating – “it depends” in their decision, R. v. Marakah, today

Your privacy in sent texts, as defined by illegal firearm traffickers.

In Marakah, two parties, Marakah and Winchester (M and W), were discussing the transaction of illegal firearms over text. The police obtained and executed warrants for both M’s and W’s homes. While searching the two homes they found M’s BlackBerry and W’s iPhone and subsequently searched both. The search revealed incriminating text messages from M to W which were used to charge M. At trial, M argued that the messages should not be admitted against him because they were obtained in violation of his s. 8  Charter  right against unreasonable search or seizure. The application judge held that the warrant for M’s home was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that M had no standing to argue that the text messages recovered from W’s iPhone should not be admitted against M. The judge admitted the text messages and convicted M of multiple firearms offences.

M appealed to the Court of Appeal but a majority of the Court of Appeal agreed that M could have no expectation of privacy in the text messages recovered from W’s iPhone, and hence did not have standing to argue against their admissibility.

Chief Justice McLachlin drops the mic on privacy…

M then appealed to the Supreme Court of Canada. In what may be her last decision on the Supreme Court of Canada, Beverly McLachlin wrote the majority decision (with Justice Rowe concurring). At paragraph four she writes –

“I conclude that, depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.”

Yeah, yeah, what’s the legal test already? Do I have expectation in my late night drunk texts or not?

In support of this decision the Court outlines a four-step test to determine if and when one can objectively reasonably expect privacy.

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

In determining the fourth step, the Court provides a number of factors to assist in determining whether it is objectively reasonable to expect privacy in different circumstances, including:

• The place where the search occurred whether it be a real physical place or a metaphorical chat room
• The private nature of the subject matter, that is whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and
• Control over the subject matter.

So what happened to Marakah then? Application:

Applying the above four-step test, M had a reasonable expectation of privacy in the text messages recovered from W’s iPhone.

1. The subject matter of the alleged search was the electronic conversation itself between M and W – not the iPhone on which the text messages were recovered.
2. M had a direct interest in the subject matter as he was a participant in the electronic conversation and the author of the messages that the Crown sought to submit as evidence.
3. M has a subjective expectation of privacy in the subject matter as he testified that he asked W to delete the messages multiple times.
4. M’s subjective expectation of privacy objectively was reasonable and is supported by all three factors.

• The place of the search is a private electronic space that only M and W had access to. The fact that the place of the search was a phone that did not belong to M reduces but does not negate M’s expectation of privacy.
• The subject matter was very private and revealed personal information about M’s lifestyle; namely, that he was engaged in a criminal enterprise.
• M exercised control over the informational content of the electronic conversation and the manner in which information was disclosed.

Control is not an absolute indictor nor is a lack of control fatal – it is only one of three factors to be weighed An individual does not lose control over information for the purposes of s. 8  of the Charter  simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation. Therefore, even where an individual does not have exclusive control over his or her personal information, only shared control, he or she may yet reasonably expect that information to remain safe from state scrutiny.

So…what does all this mean then?

The court added that this conclusion is not displaced by policy concerns. There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some electronic conversations may engage s. 8  of the Charter . However, different facts may well lead to a different result. The Court is very clear at paragraph 55 that there are obviously limits to this right.

“This is not to say, however, that 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. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards. On the facts of this case, Mr. Marakah had a reasonable expectation of privacy in the electronic conversation accessed through Mr. Winchester’s device; different facts may well lead to a different result.”

It is important to remember that as technology and communication grow and change, so must the law adapt to balance our rights of privacy.