You can go ahead and send those text messages to your drug dealer (maybe)

Well that’s good news I guess? Two very important cases came out of the Supreme Court a couple of weeks ago. And while technically they are not internet law cases, and I write a blog about internet law, they are huge privacy cases. And I teach privacy! So I guess I should read them and write about them.

The cases are R. v. Marakah and R. v. Jones. They came out together, so they are what we in the law biz call “companion cases”. They both deal with the right to privacy in text messages. They are sort of the same (in that they both deal with the right to privacy in text messages; didn’t I just say that?), but also sort of different (because, well, we’ll get to that). So let’s take them one at a time, and then try to draw some conclusions about how you can text your drug dealer. Or anyone really.

R. v. Marakah

So Marakah sent some text messages about illegal firearms to his accomplice Winchester. Firearms can be legal, if you hold a CCW permit (concealed carry permit) – you can learn more about this via Marakah had a BlackBerry and Winchester an iPhone, although that’s not important. Both were seized by the police during searches of their homes. There were warrants, but for searching the homes, not the phones themselves. That’s important. The texts on those phones had bad stuff in them! Now, the Canadian Charter of Rights and Freedoms has this bit, section 8:

Everyone has the right to be secure against unreasonable search or seizure.

This is a good protection, and it prevents the police from just gathering evidence willy-nilly without proper authorization and using it against you. It allows criminal defendants to challenge and exclude evidence at their trials that was not obtained “legally”. But normally it applies to evidence that the police gathered from you (as the criminal, errr, alleged criminal). What about evidence gathered from someone else, like your accomplice? Do you still have any privacy right in that stuff? As the Supreme Court puts it with respect to this case:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant? The question in this appeal is whether the guarantee against unreasonable search and seizure in s. 8 of the Canadian Charter of Rights and Freedoms can ever apply to such messages.

Yes it can! Sometimes. As the court says:

I (ed.: the Chief Justice) 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.

Now, the Chief Justice (technically as you read this the former Chief Justice, as she retired December 15) is very clear that it is not automatic:

The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy (…) whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge.

Marakah believed his text messages were private. That belief was “objectively reasonable” according to the Court. As a result, he had what we in the law biz call “standing” to object to the texts being submitted as evidence. Standing just means you have the right to bring up the question in front of the court. So the Court says Marakah has standing, and thus can challenge the evidence of the text messages from Winchester’s iPhone. Then the Court asks if the evidence should be excluded under section 24(2) of the Charter. Oh crap, I better tell you what that is:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

In English and as it applies here, if you think your rights under the Charter were violated when they gathered evidence against you, you ask the court and the court can say “evidence excluded!”

So here… the evidence was excluded. I am not going to go into all the details about why the evidence was excluded, because blech. But let’s take a step back and determine when should those section 8 protections apply, because that’s important. The jurisprudence has established a four step test to determine when:

  1. What was the subject matter of the alleged search?
  2. Did the claimant have a direct interest in the subject matter?
  3. Did the claimant have a subjective expectation of privacy in the subject matter?
  4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

You know what, I am not going through them all. It’s the holidays and you are bored already. Let’s pull out some juicy bits though. Re #1:

Correctly characterized, the subject matter of the search was Mr. Marakah’s “electronic conversation” with Mr. Winchester

So it was not Winchester’s phone itself, it was the “electronic conversation”. As for #2, of course he has an interest. As for 3, duh! He expected Winchester to keep those convos private. As for #4, there is a whole other set of factors to determine that which I won’t even list; suffice it to say for Marakah, under the circumstances, it was reasonable to believe the messages would stay private. OK one factor I will list – control. The Chief Justice says Marakah and Winchester shared control of the texts, so it was reasonable for Marakah to believe they would stay private. There is still some control over the texts even when they are sent and received by someone else. Remember that for a few paragraphs.

Bla bla bla, there is standing, bla bla bla, the search was unreasonable because there was no warrant for the phone contents (the Crown admits as much) and bla bla bla, the evidence should be excluded.

Justice Rowe agrees with the Chief Justice (who wrote for the majority), but felt it necessary to blather on a bit, and say things like:

I would say only that principle and practicality must not be strangers in the application of s. 8 or we might well thwart justice in the course of seeking to achieve it.

Jebus that’s some grandstanding legal-speak crap.

Justice Moldaver and one other justice dissented however. In their opinion, they said he did not have the standing to challenge the texts from Winchester’s phone. Why?

Here, Mr. Marakah had no control whatsoever over the text message conversations on Mr. Winchester’s phone. Mr. Winchester had complete autonomy over those conversations. (…) To say that Mr. Marakah had a reasonable expectation of personal privacy in the text message conversations despite his total lack of control over them severs the interconnected relationship between privacy and control that has long formed part of our s. 8 jurisprudence

See, I told you to remember that control business. But that’s a dissent, so you can forget it all now.

R. v. Jones

So here again, there were text messages of illegal activity. Also firearms, but drugs too! In this case however, the police got the results of the text messages from Telus, not the recipient of the messages like in Marakah. And unlike the Marakah case where the police did not have a warrant to search the phone, here the police had used what’s called a “production order” (a type of warrant) to get Telus to hold on to those text messages so the police could have them.

So the first question here is the same – does Jones have standing to contest the evidence seized? Yes! He has the same reasonable expectation of privacy that Marakah had. The case boils down to three questions as summarized by the Court:

  1. at his s. 8 Charter application, was the appellant entitled to rely on the Crown’s theory that he authored the Text Messages in order to establish his subjective expectation of privacy in them?
  2. if so, was the appellant’s subjective expectation of privacy objectively reasonable such that he has standing to make his s. 8 claim?
  3. did the Production Order provide lawful authority for seizing records of historical text messages located in the hands of a service provider?

Ok so my “first” question is actually the second. Anyway, the answers are yes, yes, and yes! I am not going into details because enough already. Point is, was there a reasonable expectation of privacy? As the Court says, the important part for us boils down to this:

the issue here is whether the sender of a text message has a reasonable expectation of privacy in records of that message stored in the service provider’s [ed. note – Telus’] infrastructure

And the Court answers:

it was reasonable for him to expect that the Text Messages he sent would not be shared by a service provider with any parties other than the intended recipient

OK so reasonable expectation of privacy, and standing. Then there is a whole bit about those production orders I mentioned earlier and whether that means the police can seize the text messages based on that production order, and whether there is a difference between “seizure” and “intercept” of communications (remember that for a paragraph). I won’t go into details because enough already. Point is the production order was fine; the police can get the text conversations with the production order. So in conclusion – Jones has standing to challenge the search, but the search was lawful, so his section 8 rights were not violated and the evidence is admissible in this case. Appeal dismissed.

Justice Abella has a nice dissent. She agrees that there is standing, but the search was in fact unreasonable because text messages should in fact be “intercepted” (I told you to remember that). If they have to be intercepted, one of these “production orders” is not enough; you need a wiretap which is a different part of the Criminal Code than production orders. Also, Telus stored the content of text messages for a while, while other phone companies did not. So as she writes:

Telus customers are left with less protection than those using other service providers who do not store copies of text messages simply because Telus stores copies of text that pass through its infrastructure. This means that the privacy rights of those who text depend on which service provider they use rather than the fact that they are texting as a means of privately communicating.

She’s got a point there.

Superterriffic funtime discussion hour

Look, there is a whole lot of criminal law stuff in these cases which you shouldn’t care about because you are not criminals (allegedly). Well except for texting your drug dealers. The point to be taken for us is that both of these cases establish that there is a reasonable expectation of privacy in sent and received text messages. That’s an important step in the development of privacy jurisprudence in this country. But remember, that expectation is not automatic, it will depend on the totality of the circumstances.

One of the things I skipped over in the Marakah case was a discussion of “place”. That was one of the factors that was part of the analysis to determine whether Marakah’s expectation of privacy was objectively reasonable (like the control factor I mentioned). In the discussion, the court took a pretty advanced view of where a text message takes place or, uh, doesn’t:

Whether one views the place of an electronic conversation as a metaphorical chat room or a real physical place, it is clear that the place of the text message conversation does not exclude an expectation of privacy.

As Geist points out, this could have broader implications for privacy in an electronic world. Like on the internet – Facebook Messenger, Skype, What’s App, etc. are all sort of analogous to text messages aren’t they? Hmmm, I guess this post had something about internet law after all.


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