I’ll text you later


From email, to social media, to web histories, to text messages… do any of us ever stop to consider the digital footprint we’re constantly building?

 

The Ontario Court of Appeal recently released a decision that confines the privacy interests we may have in materials sent to others.

R. v. Marakah, 2016 ONCA 542, concerns a man, Mr. Nour Marakah, who was convicted of various gun trafficking offences. The key evidence against Mr. Marakah came from text messages sent between himself and a co-conspirator, Mr. Andrew Winchestor, that were found on Mr. Winchestor’s seized phone. There is no question that Mr. Marakah did not own, control, or have access to Mr. Winchestor’s phone, as most people who carry on texting conversations also do not. There is also no issue that Mr. Marakah and Mr. Winchestor were not in a “confidential” relationship, though, knowing they were conspiring to commit criminal acts, it may be reasonable to think that they expected their communications to remain confidential.

 

a [text message] sender only has a reasonable expectation of privacy in a text message he or she is sending “after it has been sent but before it reaches its intended destination,”

 

Mr. Marakah challenged the admission of the text messages on the basis of his right to be free from unreasonable search and seizure, s. 8 of the Charter.

The applications judge who heard the case determined that once a text message reaches a recipient, “there is no longer any reasonable expectation of privacy in the sender.” In fact, a sender only has a reasonable expectation of privacy in a text message he or she is sending “after it has been sent but before it reaches its intended destination,” suggesting that direct police interference, before the text message arrives in the recipient’s phone, would be a s. 8 breach. But accessing the messages from a recipient’s phone is not. Without a breach, the evidence was admitted and Mr. Marakah was convicted. He appealed.

 

MacPherson J.A., writing for the majority of the Ontario Court of Appeal in a 2:1 decision, endorsed the application judge’s findings and held that, as Mr. Marakah did not have a reasonable expectation of privacy in the contents of Mr. Winchestor’s phone, Mr. Marakah did not have standing to challenge the seizure of Mr. Winchestor’s phone. The lack of control Mr. Marakah had over Mr. Winchestor’s phone was crucial.

But is that not true in virtually all cases where a sender’s text messages are stored in a recipient’s phone?

In many respects, this case involves the nature of text messaging and social expectations around texting. Is it more akin to email or a letter, or, being a virtually simultaneous method of communicating, is it more like an oral conversation, that just happens to keep a full and accurate record? Do we expect our text messages, sent by us to a friend or loved one, to stay private (perhaps unreasonably)? Do we accept that we have no reasonable expectation of privacy in the message we send to our friend or loved one and behave accordingly? The Ontario Court of Appeal has diverged from the only other appellate-level precedent on this topic, R. v. Pelucco, 2015 BCCA 370, where the British Columbia Court of Appeal determined that senders ordinarily have an objectively reasonable expectation that text messages they send will remain private with the recipient.

The Ontario Court of Appeal’s decision is unlikely to be the final word on this issue. Mr. Marakah has already filed a notice of appeal to the Supreme Court. Until then, Ontarians should keep in mind that they have no reasonable expectation of privacy in messages they send.


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About Katrina Trask

Katrina Trask is a graduate student at the University of Toronto’s Faculty of Law. Prior to beginning her graduate studies, she was a legal research lawyer at the Newfoundland and Labrador Court of Appeal. Katrina’s undergraduate and law degrees are both from the University of Manitoba.