Expectation Of Privacy In Text Message Conversations More Stringent In Canada Than The U.S.

Canada's highest court, the Supreme Court of Canada (the "SCC"), recently decided in R. v. Marakah, 2017 SCC 59, ("Marakah") that Canadians have a reasonable expectation of privacy in the text messages they send, even after they have been received by the recipient. With this seminal ruling, the SCC established a divergence from the United States where it has been established that text messages are not private once they have been duly delivered.

Background

The case involved an accused who had sent text messages to his accomplice regarding illegal firearm transactions. These texts were recovered from the accomplice's phone and subsequently used by the police to convict the accused of multiple firearms offences. Although the trial judge considered the search of the accomplice's phone to be unreasonable, the recovered text messages were permitted as evidence against the accused.

The SCC Decision

The SCC reversed the lower court's decision and concluded that the accused had a reasonable expectation of privacy in the text messages that he sent to his accomplice and therefore had the necessary standing under section 8 of the Canadian Charter of Rights and Freedoms (the "Charter") to challenge the police's search of the accomplice's phone and use of the text messages as evidence. The prosecution agreed that the search was unreasonable and the SCC concluded that the evidence collected should be excluded, ultimately resulting in the charges against the accused being dropped.

Reasonable Expectation of Privacy in Text Messages

In reaching the determination that text messages can attract a reasonable expectation of privacy, the SCC considered whether there was an expectation of privacy in the text messages and if so, whether this subjective expectation was objectively reasonable.

It was clear that the accused expected that the recipient keep the text messages he received private, but was that expectation objectively reasonable? In evaluating the reasonableness, the SCC looked at three factors further discussed below: (i) the place of the search, (ii) the private nature of the subject matter, and (iii) control over the subject matter.

i. Place of the Search

What is the place of an electronic text message conversation? The SCC determined that, unlike traditional methods of communication involving physical documents, electronic conversations such as text messages do not occupy a physical place; rather, they create "private chat rooms" between individuals...