SCC rules can have a reasonable expectation of privacy re texts sent to another's phone.
08, December 08, 2017 - Filed in: Court Cases
"M sent text messages to an accomplice, W, regarding illegal transactions in firearms. The police obtained warrants to search his home and that of W. They seized M’s BlackBerry and W’s iPhone, searched both devices, and found incriminating text messages. They charged M and sought to use the text messages as evidence against him. At trial, M argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search or seizure. The application judge held that the warrant for M’s home was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that M had no standing to argue that the text messages recovered from W’s iPhone should not be admitted against M. The judge admitted the text messages and convicted M of multiple firearms offences. A majority of the Court of Appeal agreed that M could have no expectation of privacy in the text messages recovered from W’s iPhone, and hence did not have standing to argue against their admissibility."
The S.C.C. held (5:2) that the appeal is allowed, the convictions set aside, and acquittals entered.
Chief Justice McLachlin wrote as follows (at paras. 4-7):
"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.
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 (see Moldaver J.’s reasons, at paras. 100 and 167-68); 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.
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 of 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."
Justice Moldaver (in dissent with Justice Côté concurring) wrote as follows (at paras. 98-100, 168-173, 185-187, 197-199):
"From a legal standpoint, the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search. This connection must be examined by looking at the totality of the circumstances in a particular case. Control over the subject matter in the circumstances is a crucial factor in assessing an individual’s personal connection to it. Where an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable, and that the individual does not have standing to challenge the search.
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. He was free to disclose them to anyone he wished, at any time, and for any purpose. 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. It is equally at odds with the fundamental principle that individuals can and will share information as they see fit in a free and democratic society.
From the standpoint of policy, granting Mr. Marakah standing in these circumstances would vastly expand the scope of persons who can bring a s. 8 challenge. The Chief Justice, speaking for a majority of the Court, adopts an approach to s. 8 that has no ascertainable bounds and threatens a sweeping expansion of s. 8 standing. This carries with it a host of foreseeable consequences that will add to the complexity and length of criminal trial proceedings and place even greater strains on a criminal justice system that is already overburdened. Worse yet, expanding the scope of persons who can bring a s. 8 challenge risks disrupting the delicate balance that s. 8 strives to achieve between privacy and law enforcement interests, particularly in respect of offences that target the most vulnerable members of our society, including children, the elderly, and people with mental disabilities. In my view, the logic of the Chief Justice’s approach leads inexorably to the conclusion that a sexual predator who sends sexually explicit text messages to a child, or an abusive partner who sends threatening text messages to his or her spouse, has a reasonable expectation of privacy in those messages on that child or spouse’s phone. With respect, I cannot accept this result.
In sum, as I read her reasons, the Chief Justice effectively holds that everyone has a reasonable expectation of privacy in text message conversations, even when those conversations are on another person’s phone. As such, under her all-encompassing approach to standing, even a sexual predator who lures a child into committing sexual acts and then threatens to kill the child if he or she tells anyone will retain a reasonable expectation of privacy in the text message conversations on the child’s phone. Likewise, an abusive husband who sends harassing text messages to his ex-wife and threatens to harm her and their children if she goes to the police will retain a reasonable expectation of privacy in the text message conversations on the wife’s phone.
With respect, these examples show that the Chief Justice’s approach to standing is effectively boundless. To hold that the sexual predator and the abusive spouse retain a reasonable expectation of privacy in the text messages once they are received by their victims is remarkable. Indeed, I am hard pressed to think of anything more unreasonable. This effectively eradicates the principle of standing and renders it all but meaningless.
And it is no answer to say, as the Chief Justice does, that granting the sexual predator or the abusive spouse standing does not mean that the text messages on their victims’ phones will necessarily be excluded from evidence; rather, it simply gives them the right to challenge the admissibility of those messages (C.J.’s reasons, paras. 49-52).
With respect, that response not only misses the point, it emphatically makes the point that on the Chief Justice’s approach, the principle of standing is virtually limitless and, for all intents and purposes, it ceases to exist when two or more people converse with each other through text messaging or any other electronic medium. In short, it belies the Chief Justice’s overriding position that standing is to be assessed on a case-by-case basis, having regard to the totality of the circumstances, and that Mr. Marakah’s successful claim to standing is limited to the facts and circumstances of his case (C.J.’s reasons, paras. 5, 51 and 55).
But even if I have misconstrued her position on this, the Chief Justice provides no guidance as to what factors would militate against finding a reasonable expectation of privacy in an electronic communication; nor does she explain why the circumstances of this case are different than any other case where people participate in a text message conversation. Police, defence and Crown counsel, trial and appellate judges, and the public at large, are left to guess when and under what circumstances electronic messages will not attract a reasonable expectation of privacy. With respect, that is a highly unsatisfactory state of affairs.
In my view, it is unreasonable to expect another individual to maintain the privacy in text message conversations over which that individual has exclusive control. This is because — save for limited exceptions which do not apply in this case — individuals are free to share information that falls within their control as they see fit.
The increased need for these judicial authorizations could strain police and judicial resources in an already overburdened criminal justice system. Investigations would be slowed, more judicial officers would be required, and the administration of criminal justice as a whole will suffer. And the effects do not end at the investigative stage.
At the trial stage, each of the above repercussions could significantly complicate and prolong proceedings. For example, in large project prosecutions, accused persons could gain standing to challenge numerous searches conducted against collateral targets that yield records of any private communications involving the accused person: see R. v. McBride, 2016 BCSC 1059, at para. 2. Beyond the court time and resources required to accommodate this litigation, it could significantly expand the scope of already voluminous disclosure that would become relevant in mounting these collateral s. 8 challenges.
The Chief Justice does not provide any solutions to these foreseeable consequences, stating that “[i]f and when such concerns arise, it will be for courts to address them” (para. 53). But experience teaches that these concerns are real — and we ignore them at our peril. It is only prudent for this Court to consider the predictable consequences of its decision in a case like the present one, which has major implications for the criminal justice system. This is especially so at a time where our criminal justice system is stressed to the breaking point. In this regard, I note that the Chief Justice’s decision to leave for another day these obvious concerns departs from the approach taken in past criminal law matters, where she herself has engaged in elaborate forecasting of the doctrinal and practical implications arising from this Court’s decisions: see e.g. R. v. D.A.I., 2012 SCC 5,  1 S.C.R. 149, at paras. 64-71 (per McLachlin C.J.); R. v. Hutchinson, 2014 SCC 19,  1 S.C.R. 346, at paras. 19-21, 38-42, 44-49 and 52-53 (per McLachlin C.J. and Cromwell J.).
The Chief Justice’s approach to the reasonable expectation of privacy analysis suffers from several shortcomings. First, she does not determine where the search actually occurred, despite maintaining that the strength of Mr. Marakah’s expectation of privacy will vary depending on the place of the search. Without knowing whether the place of the search is a “metaphorical chat room” or Mr. Winchester’s physical phone, courts have no way of knowing how to assess the strength of Mr. Marakah’s expectation of privacy. This uncertainty will have serious implications when courts must assess the impact of an unlawful search on a claimant’s s. 8 right for the purposes of a s. 24(2) analysis.
Second, although the Chief Justice purports to confine her finding of a reasonable expectation of privacy to the circumstances of this case, applying her framework leads to only two possible conclusions. Either all participants to text message conversations enjoy a reasonable expectation of privacy, or criminal justice stakeholders, including trial and appellate judges, are left to decipher on a case-by-case basis — without any guidance — whether a claimant has standing to challenge the search of an electronic conversation. Third, the Chief Justice does not confront the host of foreseeable, practical problems with her approach, saddling the courts with the task of sorting them out when they inevitably arise.
I take a different approach. In my view, divorcing privacy from any sense of control in the present context would distort and de-contextualize the concept of privacy, create tension with the autonomy of individuals to freely share information, depart from this Court’s longstanding jurisprudence, and raise a host of practical concerns for law enforcement and the administration of criminal justice. Assessing the reasonableness of an expectation of personal privacy is a contextual exercise — one which requires evaluating the nature and strength of a particular claimant’s connection to the subject matter of the search. In this case, Mr. Marakah had absolutely no control over the text message conversations on Mr. Winchester’s phone. As such, Mr. Marakah could not reasonably expect personal privacy in those text message conversations. As a result, while accessing the text message conversations on Mr. Winchester’s phone amounted to a search under s. 8, in my view, Mr. Marakah lacked standing to challenge its reasonableness under s. 8 of the Charter and seek exclusion of the evidence of his conversations with Mr. Winchester discussing the purchase and sale of firearms under s. 24(2)."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.