On December 8, 2017, the Supreme Court of Canada found that text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy according to s. 8 of the Charter of Rights and Freedoms and therefore, can be protected against unreasonable search or seizure.
In R. v. Marakah, Marakah was convicted of several offences including trafficking firearms. Some of the evidence against him was text messages Marakah sent to an accomplice which police found while searching the accomplice’s cellphone.
Before the trial, Marakah challenged the search and seizure of his accomplice’s cell phone and challenged the use of these texts against him. The Judge ruled that Marakah had no standing to challenge the search and seizure of the phone because he had no reasonable expectation of privacy over the messages once they reached the recipient and were no longer under the sender’s control.
Marakah appealed his conviction and the Court of Appeal dismissed the appeal. Marakah appealed again to the highest court in Canada, the Supreme Court.
In a 5-2 ruling the Supreme Court of Canada found that Marakah did have a reasonable expectation of privacy concerning the messages and, after finding the search to be unreasonable, set aside Marakah’s convictions and entered acquittals.
In her reasons for the majority, Chief Justice Beverley McLachlin noted that Marakah was the author of the text messages introduced as evidence against him, that he expected the electronic conversation to remain private, and that he asked the recipient to delete the messages numerous times.
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 Court also said that “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.”
Justice Moldaver, who ruled against the appeal being allowed, expressed concern that this will lead to situations where police are required to get search warrants, even when complainants willingly disclose text messages they have received.
Despite these concerns, Justice McLachlin stated “If and when such concerns arise, it will be for courts to address them. There is nothing in the record to suggest that the justice system cannot adapt…”