Admissibility of Statements, 9th edition, Release # 34

Author: Honourable René J. Marin

Reasonable Expectation of Privacy – Text Messages:

In December 2017, the Supreme Court of Canada delivered two important decisions on this issue. The first, R. v. Marakah on the expectation of privacy, in text messages of conversation with an accomplice, and R. v. Jones on the expectation of privacy on an order of production for messages, on record with a service provider.

1. Text messages of conversations with an accomplice:

In Marakah, the Ontario Court of Appeal had ruled, the accused, charged with illegal transaction in firearms could not establish an objectively reasonable expectation of privacy, nor could he establish an interest in his claim. The Court concluded, the text messages exchanged with an accomplice, did not remain under his control once they reached the receiver’s cell phone.

In a 5/2 decision, including a strong dissent by Moldaver J. the decision of the Ontario Court of Appeal, was set aside and the convection quashed. The majority, held text messages sent and received, can attract a reasonable expectation of privacy; hence they are protected by s.8 of the Charter.

If a claimant can establish a direct interest in the search and a subjective expectation of privacy, a claimant, has the standing to make submission on the matter. Then, if the claimant can establish the existence of the message, the identity of the participants, the information shared, the electronic exchange, gives the claimant the required status to proceed with the application to exclude under s.8.

As an aside, his accomplice pleaded guilty and received an 8 year sentence.

A decision well worth reading and noting!

2. Text Messages from service provider:

In Jones, two issues were addressed by the Supreme Court.

1. Standing to challenge subjective expectation of privacy, to challenge the production order, and;

2. Production of text messages from a service provider.

In Jones, the Court addressed these issues and affirmed the earlier decision of the Ontario Court of Appeal. Jones applied for status in order to exclude historical text messages stored with his service provider. It was alleged their access was in breach of s. 8 of the Charter.

The decision of the Ontario Court of Appeal was sustained. The Supreme Court noted while Jones may have had standing if it was established he had an direct interest in the search and could ‘prove’ a subjective expectation of privacy.

Notwithstanding such a finding, his s. 8 rights were not breached since access was granted on the basis of s. 184.(3) of the Criminal Code and disclosed pursuant to s. 193(2). The appeal was dismissed.

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