Can Canadians reasonably expect the text messages they send to remain private, even after the messages have reached their destination, and is the state free, regardless of circumstances, to access text messages from a recipient’s device without a warrant?
In R. v. Marakah, the Supreme Court of Canada addressed these questions.
In this landmark decision released in December 2017, the nation’s highest court held that in some cases, text messages that have been sent and received can attract a reasonable expectation of privacy according to section 8 of the Charter of Rights and Freedoms and therefore be protected against unreasonable search or seizure.
Nour Marakah was charged with and convicted of trafficking in handguns. Among the evidence used against him were certain incriminating text messages that he had sent to his accomplice, Andrew Winchester.
The messages on Marakah’s own BlackBerry – from where those messages to Winchester were sent – had already been ruled inadmissible, since their use was found to have breached his Charter right to be protected against unreasonable search and seizure. The case turned on the admissibility of the messages that had been intercepted from Winchester’s iPhone.
Before trial, Marakah challenged the search and seizure of Winchester‘s phone. The application judge concluded that Marakah had no standing to challenge the search of Winchester’s phone because he had no reasonable expectation of privacy in respect of those text messages. While the judge accepted that the sender of a text message has a reasonable expectation of privacy in the message’s content after it has been sent, he found that the reasonable expectation of privacy ends once the text message reaches its intended destination and is no longer under the sender’s control.
The Ontario Court of Appeal agreed that Marakah lacked standing and dismissed his appeal from that decision.
The Supreme Court allowed Marakah’s appeal, set aside his convictions and entered acquittals, on the basis that Marakah also had a reasonable expectation of privacy in the text messages recovered from Winchester’s phone. The Court ruled that those messages were private in the circumstances and inadmissible on the same Charter-based grounds.
The issue before the Supreme Court was whether an accused can claim section 8 protection for text messages accessed through a recipient’s phone because the sender has no privacy interest in the messages if they are not contained within his or her own device. In this respect, the Court disagreed with the application judge and the Court of Appeal, finding that an accused can have a reasonable expectation of privacy in sent messages. The Court emphasized, however, that not every communication occurring through an electronic medium will attract a reasonable expectation of privacy and grant an accused standing to make arguments regarding section 8 protection. Whether an accused has a reasonable expectation of privacy will depend on the particular facts of the case.
To be accorded section 8 protection against unreasonable search and seizure, a claimant must establish a reasonable expectation of privacy in the subject matter of the search. This expectation must be assessed in “the totality of the circumstances”. “The totality of the circumstances” analysis considers the following four questions:
- What was the subject matter of the alleged search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter?
- If so, was the claimant’s subjective expectation of privacy objectively reasonable?
The Court held that each of these questions was satisfied in this case. Among other things, the Court observed that Marakah had a reasonable expectation that the texts would remain private, as he repeatedly asked Winchester to delete the incriminating messages from his phone.
The Court concluded that there had been a breach of Marakah’s Charter rights, and that admitting the text messages from Winchester’s phone as evidence would bring the administration of justice into disrepute. Without those texts, he would have been acquitted; to allow the conviction to stand would be a miscarriage of justice.
Although this ruling arose from a criminal case, it may have repercussions in the civil realm. Indeed, it is relevant to all Canadians, the majority of whom unreservedly communicate private information via electronic means.
Lessons for Employees
The issue of whether electronic communications are private to the employee or are something over which the employer should have access, and possibly ownership, may be relevant to a great many issues arising in the workplace – including wrongful dismissals, cause terminations, alleged violations of non-compete and non-solicitation agreements, etc. As a result of this decision, employees may be able to claim a right to privacy over text messages and other electronic communications contained on a recipient’s phone or similar device. This extends the right to privacy in the workplace and may provide an argument for why an employee should not be required to produce electronic communications if requested by their employer, as well as why these communications should not be required to be disclosed as evidence in a legal action.
Lessons for Employers
Gone are the days when any information in the workplace was assumed to be the property of the employer and where an employer was assumed to have access to any communications involving an employee. Employees are now entitled to a reasonable expectation of privacy in electronic communications in certain situations and employers are required to respect that privacy. It is now more critical than even for employers to establish strong company policies and procedures to assert control over the workplace where such control can be exerted. Employers are encouraged to consult with an experienced Employment Lawyer to discuss this issue in greater detail.
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