R v Marakah: Sending Text Messages & The Reasonable Expectation of Privacy

** Author’s Note: This post is the product of a conversation I had with an expert on the case. I am humbled by and indebted to that person for their incredible kindness and for the time they took out of their busy schedule to discuss this topic with me. **

We sent an alarming 16 million messages per minute worldwide in 2015. A study from 2013 shows that 270 million texts were sent per day in Canada alone. That number continues to climb: it has increased almost forty percent from 2010, quadrupling since 2008, and is up 20-fold over 2006’s total. What’s more, these statistics forego texts sent from apps like WhatsApp, Snapchat, Kik, and MMS (Multimedia Messaging Service; usually involving pictures) messages. But as Mark Twain once wrote, “there are lies, damned lies and statistics.” So, see for yourself. Pause for a moment on a sidewalk in downtown Toronto. Marvel at the flurry of cellphones passing you by, the heads of hundreds buried in conversation.

The Supreme Court of Canada (SCC) now faces the unenviable task of assessing this cultural phenomenon in R v Marakah, 2016 ONCA 542 [Marakah], which was recently granted leave to appeal.

Overview

Facts: A Matter of Control

The appellant, Nour Marakah, was convicted by Justice O’Marra of multiple firearm offences. The convictions were ultimately dependant on the contents of private text messages between the appellant and Andrew Winchester, a former co-accused, which police obtained from Winchester’s cell phone. All of the other incriminating evidence, including the same text messages extracted from the appellant’s cell phone, was excluded due to Charter violations. The motions judge, Justice Pattillo, concluded that while the police had unlawfully searched for and seized the text messages from Winchester’s cell phone, the appellant’s rights had not been infringed because his subjective expectation of privacy in the text messages was not objectively reasonable. It should be noted here that Marakah had deleted those text messages from his own cell phone, and had told Winchester a number of times to delete the messages from his end. But without an objectively reasonable expectation of privacy, Marakah had no “standing” to challenge the admissibility of evidence. As Justice Pattillo surmised, the issue ultimately came down to control:

Once the message reaches its intended recipient…it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender (Marakah (SCJ), para 102).

The appellant appealed to the Ontario Court of Appeal, which upheld Justice Pattillo’s ruling. The majority decision, given by Justice MacPherson, concluded that the appellant’s reasonable expectation of privacy in the text messages was lost once they were received by Winchester. Justice LaForme dissented, concluding that the appellant retained a reasonable expectation of privacy in the text messages and that they should have been excluded pursuant to s. 24(2) of the Charter.

In the appellant’s factum filed to the SCC, the appellant contends:

For the reasons given by LaForme J.A. and by the majority of the British Columbia Court of Appeal in R v Pelucco, 2015 BCCA 370 [Pelucco], the appellant held a reasonable expectation of privacy in his text messages, whether extracted from his or the recipient’s cell phone, and accordingly, had ‘standing’ to seek their exclusion from evidence. The conclusion is supported by the ‘totality of circumstances’ test articulated by this Court, and its application in the context of informational privacy. The contrary conclusion severely undermines the legitimate privacy interests captured by s. 8 of the Charter and would effectively allow unrestricted state access to private communications through text messages. The contrary conclusion also offends this Court’s jurisprudence, including its characterization of text messages in R v Telus Communications Co., 2013 SCC 316 [Telus] and its rejection of the “risk analysis” unsuccessfully advanced by the Crown in R v Duarte, [1990] 1 SCR 30 (para 4).

There’s a lot there, so I’ll break it down piece by piece throughout the rest of this post. What I argue will become clear is that the “contrary conclusion” hardly leads to an “undermin[ing of] the legitimate privacy interests captured by s. 8 of the Charter…allow[ing] unrestricted state access to private communications through text messages,” nor does it “offend [the SCC’s] jurisprudence.”

The Edwards Test: “The Totality of Circumstances”

The test outlined in R v Edwards [1996] 1 SCR 128, and expanded upon by R v Tessling, 2004 SCC 67, is used to determine standing to challenge the admissibility of evidence. First, it must be determined whether Marakah had a direct interest in the contents of the messages, which he clearly did. Second, it must be determined whether Marakah had a subjective expectation of privacy in the text messages (an extremely low hurdle). Marakah’s messages to Winchester to delete the messages was enough to satisfy this requirement. Third, the court must determine whether this subjective expectation of privacy was objectively reasonable in “the totality of circumstances.” To assist in this analysis, Justice Binnie provided the following factors in R v Patrick, 2009 SCC 17, to be considered (para 27):

• The place where the alleged “search” occurred (did the police trespass?);
• Whether the informational content was in public view;
• Whether the informational content of the subject matter had been abandoned;
• Whether such information was already in the hands of third parties (if so, was it subject to an obligation of confidentiality?);
• Whether the police technique was intrusive in relation to the privacy interest;
• Whether the use of this evidence gathering technique was itself objectively unreasonable; and
• Whether the informational content exposed intimate details of the appellant’s lifestyle, or information of a biographical nature.

Justice LaForme’s dissent and R v Pelucco: “A Prerequisite for A Free and Democratic Society”

The core contention of Justice LaForme’s dissent in Marakah is that since Hunter v Southam Inc., [1984] 2 SCR 145 [Southam], section 8 of the Charter has provided a broad and general protection that shields a wide variety of interests, ranging from intimate secrets hidden in one’s home, to data generated and stored by an internet service provider. The section 8 privacy analysis is a purposive one, Justice LaForme explains: “The protection afforded by s. 8 should be interpreted broadly and purposively because the protection of privacy is a prerequisite to individual security, self-fulfilment, and autonomy, as well as to the maintenance of a thriving democratic society” (Marakah, para 100). Additionally, Justice LaForme argues that the inquiry into which privacy interests are considered objectively reasonable has a normative aspect to it. Put simply, the reasonable person would be concerned about the long-term consequences of government action for the protection of privacy.

Much of Justice LaForme’s reasoning is gleaned from Pelucco. There, the accused had arranged a deal through text messages to sell a kilogram of cocaine to a buyer. Unknown to the accused, the police stopped the buyer during the text conversation. The buyer’s phone displayed a series of text messages about the drug deal and the police continued the text conversation with the accused from the buyer’s phone. On appeal, Justice Groberman upheld the trial judge’s ruling that the accused’s right to privacy had been breached and excluded the text messages. Adopting a more “normative” analysis, Justice Groberman reasoned that the real question before the court was “whether in keeping with societal and legal norms in Canada, the sender of a text message should reasonably expect that the texts will remain private on the recipient’s device,” (para 63) concluding that “the Crown’s position…that a sender never has a reasonable expectation that a message will remain private after delivered to a recipient’s device…does not…comport with social or legal norms” (para 68).

Discussion

R v Telus: “Hallmarks of Traditional Voice Communication”

The appellant relies heavily on the statements of Justice Abella in Telus to argue that text messages are a modern version of a telephone conversation and can contain as much private information as an oral conversation. It has been well established that an individual has a reasonable expectation of privacy in an oral conversation. Thus, the appellant argued that not only was his expectation objectively reasonable, but that wiretap authorization was needed to obtain the text messages.

Telus considered whether a general warrant could be used to authorize the prospective daily production of text messages stored on a computer database maintained by Telus. In her reasons, Justice Abella aptly surmised that,

[1] [d]espite technological differences, text messaging bears several hallmarks of traditional voice communication: it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication….

[5] Text messaging is, in essence, an electronic conversation.

Justice Abella’s comments are salient, but only align with the appellant’s argument to a very limited extent. There are several important caveats to her comments. First, as Justice MacPherson points out, Justice Abella expressly declined to decide the issue in Marakah because Telus only addressed prospective, and not historical text messages. Thus, her comments cannot be read as meaning that text messages are equally private once they are sent and stored in a recipient’s phone. Second, Telus was not a standing case, and did not address the “totality of the circumstances” test. Lastly, Just Abella was clear: text messaging is not strictly speaking a telephone conversation, it is simply akin to one.

Justice Abella’s comments do align with the more “normative” analysis suggested by Justice LaForme. In particular, her comments will resonate with those who see Marakah (and rightfully so; admittedly, this is the way I saw it at first), as an opportunity to cement text messaging as part of the private zone, safe from state interference, in which we may define ourselves as human beings. However, as Justice Goepel points out in his dissent in Pelucco, that simply is not the test:

[96] The principle that privacy is to be approached from a ‘normative’ perspective reflects an important caveat: the expectation of privacy is not meant to be a factual description of whether Canadians expect to be free from interference from the state…

[101] The question to be determined in this case is not whether text messaging as a medium of communication is, in the abstract, a medium that people expect to be confidential. Instead, the question is whether Mr. Pelucco, in the totality of the circumstances, had a reasonable expectation of privacy.

The jurisprudence is clear. Section 8 only protects a reasonable expectation of privacy. It does not protect all privacy interests. As Justice MacPherson writes, “It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. The manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.” Due to the proliferation of text messaging, and the extent to which it has become a staple in our lives over the past decade or so, this case raises concerns over privacy implications that go beyond the scope of what the SCC is being asked to decide. We must do our best to check these reactions, and focus on the specific test that is to be applied.

R v Cole: The Absence of Control

The appellant highlights R v Cole, 2012 SCC 53 [Cole] as evidence that a reasonable expectation of privacy can be found even in the absence of control. In Cole, a school computer tech accessed contents of a teacher’s laptop and found sexually explicit images of a grade 10 student. The school board seized the computer, and the police then attended the school and took the computer without a warrant. Justice Fish held that the appellant had a reasonable expectation of privacy in information stored on his workplace laptop. The court reached this conclusion despite the fact that technicians from the appellant’s workplace could remotely access the laptop and see all of the information stored there. Justice Fish explicitly stated that unlike in the United States, third party consent does not apply in Canada: “the notion of third party consent is really only consistent with the ‘risk analysis’ approach to privacy rights, which has been adopted in the United States but rejected in Canada, in favour of an ‘entitlement analysis’.” Put simply, one party does not have the authority to waive another party’s privacy interest under s. 8 of the Charter, so the school board in Cole did not have the right to hand the computer over to the police. The reasoning in Cole and the appellant’s argument are incompatible, and inherently problematic.

One could imagine this incompatibility playing out in a future factual scenario similar to that of R v Craig, 2016 BCCA 154 [Craig], a case that followed the decision in Pelucco. In Craig, the 22-year-old accused lured a 13-year-old girl through a social media website called Nexopia. The police did not file a warrant before obtaining the messages. The British Columbia Court of Appeal held that the accused had an objectively reasonable expectation of privacy because of the private, intimate nature of the messages, and because the subject matter was connected to the accused’s biographical core. The texts in Marakah do not go to the accused’s “biographical core” like they did in Craig. However, one worries that by accepting the appellant’s argument, the SCC is setting a dangerous precedent by affirming the troublesome doctrine in Cole. Take the factual scenario in Craig for example: imagine a situation where a parent comes across a text conversation between their child and a sexual predator. Cole effectively forbids that parent from “waiving the predator’s privacy interest.” What’s more, accepting the appellant’s argument in Marakah would cement the predator’s right to a reasonable expectation of privacy. At the very least, Cole opens somewhat of a Pandora’s box of policy considerations. It will be fascinating to see how the appellant attempts to reconcile cases like Pelucco and Craig with Cole before the SCC, and whether the SCC will be willing to affirm, or shed, the third party consent notion.

R v Duarte: The Appellant’s Strongest Argument

The appellant’s strongest argument lies in Duarte. In Duarte, the SCC rejected the notion that a reasonable expectation of privacy no longer exists because the recipient of a private communication may choose to disclose or disseminate it. More specifically, Duarte states that law enforcement cannot interfere with individuals’ reasonable expectation of privacy in their conversations without prior judicial authorization because: 1. Speaking to an informant is not of the same magnitude as talking to law enforcement directly; and 2. A recording is being made. In Marakah, the appellant argues that the risk that was considered and rejected in Duarte is much different than the risk that an intended recipient will forward the text to a third party because the message has already been recorded by the originator and is not being intercepted by the state. In this argument, a text message, because it is written, is more akin to an email or letter than voice communication. However, as Justice Laforme wisely asserts, “that distinction, in my view, is not enough to make Duarte inapplicable. In particular, I note that it makes no meaningful difference to the privacy interests implicated or the dynamics at issue. In both scenarios an individual is sharing potentially private information with another person and not with the general public or the state” (Marakah, para 153). I strongly agree. Indeed, the focal part of Duarte was the fact that the accused was speaking to law enforcement, and accordingly, the SCC may very well look to Duarte as strong authority in the appellant’s favour.

R v Fearon: A Helpful Case Ignored

In many ways, R v Fearon, 2014 SCC 77, is the deciding factor in Marakah, but has all but been ignored so far by the lower courts. In Marakah, by drawing a comparison between text messages and telephone conversations, the appellant is arguing that law enforcement will require a wiretap (which carries a higher burden to meet than a warrant) to search a cellphone. And yet Fearon has already decided that law enforcement does not need a wiretap to search a phone.

In Fearon, police arrested the accused for robbery with a firearm, and seized his phone during a search incident to arrest. Police opened the cellphone and found photographs of a gun and cash as well as an incriminating text message, drafted by the accused. The accused brought an application to exclude the evidence, alleging a breach of section 8. Justice Cromwell held that the police were well within their limits to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. The arresting officer then showed the phone to the investigating detectives at the police station. The detectives inspected the contents of the phone “a few times” throughout the early morning following the arrest as the unfolding investigation led them to believe there could be more relevant information on it. The officers also checked some of the phone numbers called by Mr. Fearon to see if they led to possible associates.

Let me be clear: I am aware that Fearon featured a search incident to arrest, and not a search warrant, like in Marakah. Moreover, I am also aware that Fearon dealt with a text message drafted by the phone owner, rather than a text message sent by someone else stored on the phone. However, I believe the SCC should, and will, turn to the reasoning in Fearon as instructive. In light of Fearon, Marakah could not have reasonably expected that if Winchester was arrested, a search incident to arrest would not be conducted, and his text messages to Winchester would not be subsequently revealed. In fact, Mr. Marakah recognized this lack of control when he repeatedly asked Winchester to delete the messages. Justice Pattillo makes a similar observation in his reasons:

The text messages in issue were sent by Mr. Marakah knowing that he had no control over what would happen to them once they reached Winchester’s phone. He obviously had some concern over what might happen to them, given his instruction to Winchester to delete them. Winchester was purchasing guns legally in large numbers which were subsequently sold illegally. Some were involved in criminal acts. Mr. Marakah is alleged by the Crown to have been buying guns from Winchester and reselling them. In such circumstances, it is reasonable to assume that at some point the police would trace the guns back to Winchester and that his phone may fall into the hands of the police (Marakah (SCJ), para 93).

Justice Cromwell’s discussion of the policy concerns surrounding cell phone searches is also vital to Marakah, and should be considered by the SCC. Justice Cromwell seems to all but decide Marakah in Fearon, when he writes:

[48] [C]ell phone searches conducted incidental to a lawful arrest will serve important law enforcement objectives, including public safety….Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed….In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending dangers….

[54] [W]hile cellphone searches – especially those of “smart phones”, which are the functional equivalent of computers – may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion…Suppose, for example, that in the course of the search in this case, the police had only looked at the unsent text message and the photo of the hand gun. The invasion of privacy in those circumstances would, in my view, be minimal. So we must keep in mind that the real issue is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones [emphasis in original].

Justice Cromwell is clear: dismissing the appellant’s appeal in Marakah, would not “effectively allow unrestricted state access to private communications through text messages” as the appellant posits in his factum. In fact, Cromwell’s analysis highlights an important law enforcement consideration in section 8 analyses. As Justice Dickson explained in Southam, an entitlement to a “reasonable” expectation of privacy, requires “an assessment…as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” [emphasis added]. Accordingly, an accused will only have standing to challenge a search when he or she has a reasonable expectation of privacy, an expectation that, in spite of whatever concerns might arise upon an initial reading of Marakah, does not withstand a more nuanced examination.