Is There a Reasonable Expectation of Privacy Regarding Outgoing Text Messages?

With the R. v. Marakah, 2017 SCC 59 decision the Supreme Court of Canada  (SCC) addressed the the limits of reasonable search and seizure under Section 8 of the Charter of Rights and Freedoms, regarding text messages. Specifically, whether there was standing to challenge the Court of Appeal finding that the appellant in this case did not have a reasonable expectation of privacy regarding the text messages sent by him, seized from his co-accused's phone. Ultimately the SCC found that the appellant had standing to make such a challenge and found that Mr. Marakah did have a reasonable expectation of privacy regarding the sent text messages. This text message evidence was excluded pursuant to sections 8 and 24(2) of the Charter. The convictions were set aside and acquittals were entered for the accused.

Mr. Marakah had been previously convicted of multiple criminal offence. Specifically, two counts of trafficking firearms, one count of conspiracy to traffic firearms, possession of a loaded restricted firearm and possession of a firearm without a valid license. Before his trial, he challenged the search and seizure of his accomplice’s cell phone. The text evidence found on his accomplice's phone was the crux of the Crown's case against him. The Court of Appeal concluded that Mr. Marakah had no standing to challenge the search of that phone because he did not have a reasonable expectation of privacy in respect of the text messages he sent. The judge concluded that the sender of a text message has a reasonable expectation of privacy in the message’s content after it has been sent, but that this reasonable expectation of privacy ends once the text message has reached its intended recipient. The Court of Appeal dismissed the appeal. Mr. Marakah went on to appeal this decision to the SCC.

In the SCC decision, former Chief Justice McLahlin stated the following:

"I conclude that, depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s.8 and that, in this case Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.

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In this case, Mr. Marakah subjectively believed his text messages to be private, even after Mr. Winchester received them. This expectation was objectively reasonable. I therefore conclude that Mr. Marakah has standing to challenge the use of the text messages against him on the grounds that the search violated s. 8 if the Charter.

Ordinarily, standing established, it would be for the trial judge to determine whether the text messages in fact enjoyed s. 8 protection in all of the circumstances of the case. However, the Crown concedes that, if Mr. Marakah has standing, the search was unreasonable and violated Mr. Marakah's right under s. 8 of the Charter. The remaining question is whether the evidence of the conversation should have been excluded under s. 24(2) I conclude that it should have been."

Significantly, the SCC also stated, “the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence.”, despite the quality of the evidence seized.

This significant decision is favourable for the defence of cases where such text message evidence is the crux of the case against an accused. It vastly expands the scope of accused persons who can successfully bring a s. 8 challenge on the basis that their rights have been violated by the seizure of text message evidence.