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Reasonable expectation of privacy and text messaging

text-messagingThe task of picking up the phone, dialing and anticipating a “hello” on the other end can be daunting for many people. Text messaging, compared to phone calls, has dominated the way we communicate with one another over the years. It has been reported that, in 2012 alone, Canadians sent a total of 96.5 billion person-to-person text messages (representing a 23.7 percent increase over the 2011 total of 78 billion messages). With the abundance of text messages exchanged between people, there stems an important question with respect to privacy. That is, is there a reasonable expectation of privacy in a text message once it has been sent and received by the intended recipient? The Ontario Court of Appeal recently concluded that there is not. Thereby ruling that text messages seized from a recipient’s phone can be used against the sender in court.

Background

A police investigation was commenced into persons who had purchased a number of firearms over a short period of time. The investigation led to a suspect (text message receiver in the case).

As part of the investigation, the police received information from an informant that implicated Nour Marakah (the appellant in the case).

The suspect was arrested, which resulted in his cell phone being sized. Later that same day, the police searched Mr. Marakah’s residence. When they police entered, Marakah grabbed his cell phone, which resulted in a police officer arresting him.

Both seized cell phones were put through a forensic search, revealing text messages between Marakah and his co-suspect that clearly implicated them in gun trafficking.

At trial, the Crown relied upon evidence which included the text messages that Mr. Marakah had sent to his co-suspect. Such messages were obtained by police from the co-suspect’s phone without a warrant. As a result, Mr. Marakah challenged the inclusion of such evidence pursuant to section 8 of the Canadian Charter of Rights and Freedoms (Charter) (i.e. everyone has the right to be secure against unreasonable search or seizure). In the end, Mr. Marakah was unsuccessful having the text messages excluded from evidence, and was convicted of various firearm offences.

Consequently, Mr. Marakah appealed his convictions to the Ontario Court of Appeal, arguing that the text messages used as evidence against him at trial were unlawfully obtained, and therefore should have been excluded.

Conclusion

The Court of Appeal ruled against Mr. Marakah in a 2-1 decision, concluding that he did not have a reasonable expectation of privacy in the text messages once they had been sent and received by the intended recipient. Thereby confirming the position that text messages seized from a recipient’s phone can be used against the sender in court. The Court of Appeal reiterated the following reasoning:

I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender (paragraph 85, emphasis added).

The above decision was dissented by Justice LaForme, who would have allowed the appeal and ordered the text messages seized from Mr. Marakah’s co-suspect’s cell phone to be excluded from evidence, and would have entered acquittals on all charges. His reasoning included that:

  • a typical exchange of text messages is a private communication between two people. It is essentially a modern version of a conversation and can contain as much private information as an oral conversation (paragraph 109). Such private communications are an increasingly central element of the private sphere that must be protected under section 8 of the Charter. Permitting the state to review and take records of such communications at its discretion would result in harmful intrusions (paragraph 123).
  • retaining control is not a prerequisite to maintaining this interest in potentially private information (paragraph 117).
  • Mr. Marakah suffered many serious breaches of his Charter rights; “the police intruded upon significant privacy interests by conducting a warrantless search of his home and conducting an unnecessary and unrestricted forensic analysis of the appellant’s phone. Refusing to exclude the text messages obtained from [Mr. Marakah’s co-suspect’s] phone would, in effect, neutralize any remedy granted for those breaches” (paragraph 194).

It is important to note that the ruling of the Ontario Court of Appeal in the Marakah case contradicts the 2015 matter of R. v. Pelucco, where the British Columbia Court of Appeal deemed that there is a reasonable expectation of privacy when sending text messages. It is expected that the Supreme Court of Canada will be weighing in on this debate, as a notice of appeal to the Court has been filed. A letter advising the parties of a tentative hearing date (March 23, 2017) and filing deadlines has been sent.

For employers

As seen in the above noted case, the reasonable expectation of privacy is not always warranted. This is no exception when it comes to managing privacy in the workplace, whether it be in relation to employee background checks, drug and medical tests, or surveillance.

For an employee to expect workplace privacy the employee must have had a subjective expectation of privacy and such expectation must be reasonably and objectively held. Workplace policies and practices may serve to diminish the expectation of privacy that a reasonable employee might otherwise have had. (Supreme Court of Canada, R v Cole, 2012)

hraFor more information on privacy legislation in relation to the workplace and how to implement an effective privacy management program to ensure compliance with such legislation, consult the topic Effective Privacy Management in The Human Resources Advisor. Request your free 30-day trial here!

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Cristina Lavecchia, Editor

Cristina is an editor and researcher at First Reference. She is a licensed paralegal and obtained a Bachelor of Arts degree, Political Science major at York University. During Cristina's paralegal and undergraduate studies she studied employment standards, occupational health and safety, and workplace safety and insurance. Read more
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