Supreme Court Of Canada Rules Text Messages Can Attract A Reasonable Expectation Of Privacy

On December 8, 2017, the Supreme Court of Canada ("SCC") released two decisions dealing with privacy interests in text messages: R v Marakah, 2017 SCC 59 and R v Jones, 2007 SCC 60. At issue in both cases was whether there is reasonable expectation of privacy in text messages, even after they have been sent and received.

In Marakah, the accused was convicted of multiple firearm offences based on evidence of text messages sent by him but obtained by police from the recipient/co-accused's phone. As the accused was not the owner of the device from which the text messages were obtained, standing became an issue. The Supreme Court granted Mr. Marakah standing and, based on the Court's analysis of section 8 of the Charter of Rights and Freedoms (which grants everyone the right to be free from unreasonable search and seizure), decided there was a breach of the accused's Charter rights and set aside his convictions.

In Jones, the accused was convicted of drug and firearm trafficking charges based on evidence found in text messages. The text messages were stored on the server of an internet service provider and were seized by the police using a production order obtained under the Criminal Code. The SCC found that Mr. Jones had a reasonable expectation of privacy in the text messages stored by Telus and therefore, standing under section 8 of the Charter to challenge the production order. However, in this case, the SCC found that the accused's section 8 Charter right was not breached because records of text messages stored on a service provider's infrastructure were lawfully seized by means of a production order under Criminal Code. The conviction of the accused was upheld.

The standing of the accused to assert section 8 rights had been an issue throughout the court saga as in each case, the text messages were in a physical location not under the control of the accused (in Marakah, the were in a co-accused's phone; in Jones, they were on a service provider's server). At the Ontario Court of Appeal, in both R v Marakah, 2016 ONCA 542 and R v Jones, 2016 ONCA 543, the accused were denied standing to argue whether there had been a breach of their section 8 Charter rights. A key element of the Court of Appeal's reasons was its emphasis on control over the physical location of the message as a decisive factor.

The SCC, however, made it clear that text messages themselves - regardless of their physical location - can attract a reasonable expectation of...