Yes, This is a New Development…

Texting is one of the most commonly used forms of communication.  Aside from the convenience of it, texting provides an additional shield of privacy, being that you do not have to speak aloud to communicate.  The cone of silence afforded by this form of communication allows us to freely express our inner most thoughts and feelings without the fear of judgment from those within earshot.  Whether you are letting your friend know you are on your way (even though you are still in line at the coffeeshop), or authoring far less mundane text messages to your partner, the messages we send are intended to be private.  The privacy inherent in text messaging has been acknowledged by the Supreme Court of Canada where Chief Justice McLachlin wrote:

“A wife has no way of knowing that, when her husband appears to be catching up on emails, he is in fact conversing by text message with a paramour. A father does not know whom or what his daughter is texting at the dinner table. Electronic conversations can allow people to communicate details about their activities, their relationships, and even their identities that they would never reveal to the world at large…”

But when you press send, is the text message still yours once it reaches the recipient’s phone?  Do you have any right to maintain the privacy of that text message you just sent or have you relinquished all control?   

On December 8, 2017, the Supreme Court of Canada issued a landmark decision in which it was considered whether or not there is a reasonable expectation of privacy regarding text messages that have been sent.  In essence, the Supreme Court considered whether or not Canadians can assume that the text messages they send will remain private once those messages reach their destination.  While the decision was split, the majority concluded that text message conversations can attract a reasonable expectation of privacy, though it will be determined on a case by case basis. 

The case of R v Marakah, 2017 SCC 59, centres on a text message conversation regarding illegal firearms transactions.  The police executed search warrants for the homes of the two individuals involved in the text message conversation, during which each of their phones were seized and the incriminating texts were found.  It was determined that one of the search warrants was invalid and therefore the text messages found on the phone from that house could not be entered as evidence.  However, the incriminating text messages were also available on the other phone, which was obtained by a valid search warrant.  In short, the messages from the sender’s phone could not be used as evidence, but the same messages found on the recipient’s phone were permitted.   

It is important to note that you have a reasonable expectation of privacy for messages on your own phone.  This expectation of privacy existed prior to the Marakah case.  However, living in the digital age, you are likely aware that when you send a text message it appears both on your phone and on the phone of whoever received the text message.  The Marakah case focussed on whether or not you have a reasonable expectation of privacy for your text messages which are found on the phone belonging to the recipient.

In ultimately concluding that the accused did have a reasonable expectation of privacy to the text messages he sent that were located on the recipient’s phone, the Supreme Court utilized a four-part test to determine when an expectation of privacy arises:

  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 regard to step one, the Supreme Court determined that the subject matter of the search in the Marakah case was not the phone from which the text messages were recovered, but rather the “electronic conversation” itself.

Next, the Court tackled the difficult question of whether or not the accused had a direct interest in the subject matter of the text messages.  The answer was a clear and resounding “OF COURSE” being that the accused was a party to the text message conversation as well as the fact that he authored particular text messages which were introduced as evidence against him and had a significant impact on his liberty.

From there, it was determined that the accused expected the recipient of the text messages to keep the text messages private.  However, was that expectation objectively reasonable?  In evaluating whether or not it is objectively reasonable to expect that sent text messages remain private in different circumstances, the Court provided the following three factors to consider:

Place of the Search: Electronic conversations do not occupy a physical space but instead create “private chat rooms” between individuals.  These electronic “private chat rooms” are the place of the search, suggesting a reasonable expectation of privacy in text messages.

Private Nature of Text Messages: Due to the private nature of texting wherein individuals specifically choose the recipient of their text messages and are more inclined to discuss personal matters, it is reasonable to expect these private interactions to remain private.

Control over Text Messages: Lastly, the Supreme Court analyzed the notion of control over text messages after they have been sent.  While two of the seven judges disagreed, the majority concluded that the risk that the contents of a text message can be easily disclosed once it has been received by the recipient does not negate the reasonable expectation of privacy in the electronic conversation.  In essence, a person does not lose control over the information simply because another person possesses it or can access it.  

In sum, the privacy of your sent text messages has been defined by illegal firearm traffickers.  As fuel to the fire of your concern, the Supreme Court essentially answered our burning question of whether or not we have an expectation of privacy in regard to our sent text messages with a vague “it depends”.  Nonetheless, the Supreme Court has effectively broadened our reasonable expectation of privacy in our electronic communications and has outlined a very tidy test in determining this reasonable expectation of privacy.

As technology and societal norms continue to evolve and develop, the law must respond in order to adequately address our rights.  The Marakah case presents a much welcomed endorsement of privacy rights in regard to the current trend in communication.  This case exhibits an approach that safeguards privacy in an increasingly electronic world.  The Marakah case invites us all to text with ease as we now, may, have the right to expect our text messages will remain private.  

For more on this, or other criminal matters, please contact Brooke Johnson.

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