On behalf of Edelson Clifford D’Angelo Friedman LLP posted in Criminal Defence on August 22, 2016.
The Court of Appeal for Ontario has recently ruled that once a text message has been sent and received then it is no longer considered private. In R. v. Marakah, the Court had to determine whether text messages should be excluded from evidence at trial under s. 24(2) of the Charter. These text messages included incriminating details of firearms trafficking, which led to the accused’s conviction. In this case, the trial judge ruled that the search used to obtain the cell phones had violated the accused’s, Mr. Marakah, Charter right against unreasonable search and seizure. While the trial judge excluded evidence obtained from the search of their cell phones, as well as the search of the house, the text messages were not excluded because he found that the accused did not have a reasonable expectation of privacy in those text messages. The Court of Appeal upheld this decision.
In a Charter application alleging a search and seizure violation, the Court was clear, before you look to see if the search was valid, the judge must determine if the accused had a reasonable expectation of privacy in that evidence, in this case, the text messages.
Whether text messages are private communications has been litigated before. In R. v. TELUS Communications Co., the Supreme Court stated that text messaging was a private form of communication akin to a phone call.  However, the Supreme Court focused there ruling on prospective and future messages and did not address the seizure of text messages after they were stored. Due to this, in Marakah the Court of Appeal for Ontario made a distinction, that some would say is arbitrary, stating “a person has a reasonable expectation of privacy in a text message until it reaches its intended destination”. This means that sent text messages have a reasonable expectation of privacy, but once a text message has been received this reasonable expectation of privacy is lost.
This decision contradicts a ruling from the Court of Appeal for British Columbia. In R. v. Pelucco, the Court found that a text message conversation has much in common with a telephone conversation. The Court stated that “a sender will ordinarily have a reasonable expectation that the text message will remain private”; thus, there is an objective reasonable expectation of privacy in text messages, no matter if the messages have been sent or received.
Justice LaForme, the dissenting judge in Marakah, was in agreement with the Pelucco decision. He stated that the majority’s analysis was narrow and it focused only on the appellant’s specific case, rather than considering the subject matter of searching text messages as a whole. Justice LaForme stressed the Supreme Court’s finding “that text messaging is, in essence, an electronic conversation” and stated that “the ability of the state to review and take copies of text messages implicates two privacy interests that are protected under s. 8.”  Justice LaForme also found that the majority’s determination of standing was problematic. Based on this reasoning, each party would only be allowed to challenge the admissibility of evidence from their phone. This creates a loophole, which would permit the police to seize text messages from the other party, without conforming to the Charter, and permit the Crown to use these messages against the accused without the possibility of a Charter challenge. Susan Chapman, a representative of the Criminal Lawyers Association, agrees with the dissent. She stated that this ruling can allow an officer to take a phone and look at any of the messages that you have received, without a warrant.
After Marakah, a major issue in legal precedent arises. Stare Decisis, meaning let the decision stand, is a fundamental legal principle in Canada. This principle is meant to foster unity, stability and equality, so that all cases of a similar nature result in similar decisions. Currently, the precedent case law binding in Ontario and British Columbia is contradictory. In Ontario, text messages are not considered to have a reasonable expectation of privacy once they are received, while in British Columbia, text messages are considered to be private communications. For this reason, the case will likely go up to the Supreme Court of Canada. In fact, counsel representing the appellant has already applied to appeal and since there is a dissent on a question of law, the appellant will have an automatic right of appeal, which means that leave is not required.
Looking over previous decisions such as Telus, it will be interesting to see how the Supreme Court analyzes this matter in determining whether all text messages are considered private or not. Nonetheless, for now people in Ontario will have to live with the decision that a text message conversation that may seem private, is not.
 R. v. Marakah, 2016 ONCA 542 [Marakah].
 R. v. TELUS Communications Co., 2013 SCC 16,  2 S.C.R. 3.
 Marakah, supra note 1 at para 132.
 R. v. Pelucco, 2015 BCCA 370 at para 64, 327 C.C.C. (3d) 151 [Pelucco].
 Ibid at para 68.
 Marakah supra note 1 at para 107.
 Ibid at paras 108 and 114.
 Ibid at para 172.
 Davide Mastracci, “Texts are not private, Ontario court rules”, City News (11 August 2016) online: City News <http://www.citynews.ca>.
 Alex Robinson, “Sent text messages not private: ruling”, Law Times 27:25 (8 August 2016)