Return to Sender: Reasonable Expectations of Privacy in R v Marakah

How private are your private messages? Can the police read the texts you send to others? This post explores R v Marakah, 2017 SCC 59, in which the Supreme Court of Canada found that a sender can have a reasonable expectation of privacy over messages retrieved from the phone of the person receiving those messages. The decision has been touted as a victory for privacy advocates and expressive freedom. It also has concerning implications for the prosecution of online crime. The post discusses the majority and minority decisions in Marakah. It then explores these implications in the context of cyber crimes such as child luring, sharing of intimate images without consent of the sender, and trade in banned materials such as child pornography.

Introduction

After Marakah, text messages seized from a recipient’s phone without a warrant may be found inadmissible as evidence under Charter sections 8 and 24(2). In Marakah, the applicant challenged the admissibility of several inculpatory text messages seized from the phone of his accomplice, Andrew Winchester. The text messages implicated both men in firearms trafficking offences. The Supreme Court of Canada (“the Court”) found that Marakah had a reasonable expectation of privacy in the messages he sent to Winchester. As such, he had standing to challenge the seizure of the messages from Winchester’s phone, which was done without a warrant, contrary to his section 8 Charter right to freedom against unreasonable search and seizure. Having successfully challenged the admissibility of the evidence, Marakah’s convictions and sentence of nine years imprisonment were overturned (para 82).

The Court’s decision reverses the 2016 judgment of the Ontario Court of Appeal, which found that a sender cannot have a reasonable expectation of privacy in subject matter over which he or she retains no control, including sent texts. According to Gerald Chan, a lawyer for intervening party the British Columbia Civil Liberties Association, the ruling marks a victory for digital privacy advocates and “expressive freedom.” The majority decision recognizes that electronic communications are a powerful new form of conversation that attracts a privacy interest worthy of state deference. It also raises significant concerns for law enforcement officials seeking to seize incriminating evidence held on individuals’ private devices.

Facts

The facts of this case are summarized in Nicholas Hay’s TheCourt.ca post profiling the ONCA decision.

Supreme Court Decision

 Majority

The majority concluded that Marakah had a reasonable expectation of privacy over the messages seized from Winchester’s phone. As a result, he had standing to challenge the admissibility of the evidence under section 8, which he did successfully (para 4). According to Chief Justice McLachlin (as she then was), who wrote the majority decision (Moldaver and Côté J.J. dissenting), Marakah met the test outlined in Cole for a reasonable expectation of privacy over the texts between himself and Winchester. The Cole test is set out below.

The Cole Test for Reasonable Expectation of Privacy

• Step one requires the applicant to identify the subject matter of the search, which McLachlin CJ identified as the electronic conversation between Marakah and Winchester (as opposed to Winchester’s iPhone) (para 17)

• Step two requires the applicant to demonstrate a direct interest in the impugned subject matter. This was found in Marakah because Marakah was a participant in the electronic message exchange and as author of the texts introduced as evidence against him (para 21)

• Step three requires the applicant to demonstrate that he or she subjectively expected the impugned subject matter to remain private (para 22). The Court accepted Marakah’s testimony that he asked Winchester multiple times to delete the inculpatory texts from his iPhone, demonstrating that he had a subjective expectation of privacy (para 23)

A brief aside: Interestingly, Chief Justice McLachlin provides several examples to discuss the inherently private nature of texting. In one example provided by the Court, a father watches anxiously while his daughter texts an unknown recipient at the dinner table (para 36). In another, a wife believes her husband is quietly checking his email, when in fact he is conversing with a paramour (para 36). Through these examples, the majority decision paints a picture of a private domestic sphere sullied by insidious online activity.

• In step four, the applicant must demonstrate that his or her subjective expectation of privacy was objectively reasonable (para 24). The Court clarified that there are three factors relevant to objective reasonableness:

1. the place where the search occurred (e.g. whether in a public location or behind closed doors; this inquiry is complicated in the context of electronic conversation and McLachlin C.J. recognizes it fits uneasily with the contemporary reliance on electronic communication) (para 27);
2. the private nature of the subject matter (i.e. whether the content revealed details about the claimant’s lifestyle and/or information of a “biographical nature”); and
3. control over the subject matter.

In contrast to the ONCA decision in 2016, the majority rejected the Crown’s argument that Marakah’s lack of control over the text messages negated the reasonableness of his privacy interest for the purposes of section 8 (para 41). Rather, “by choosing to send a text message by way of a private medium (texts) to a designated person (Winchester), Mr. Marakah was exercising control over the electronic conversation” (para 45). According to the majority, the risk that Winchester could have disclosed the text messages to a third party “does not negate the reasonableness of Mr. Marakah’s expectation of privacy against state intrusion” (para 45).

Having found that Marakah had a reasonable expectation of privacy over the contents of Winchester’s phone, the Court found that he also had standing to challenge the admissibility of the evidence under section 8. The Crown conceded that if Marakah was found to have standing, the search against him was unreasonable. As a result, the positive finding of standing made the text messages presumptively inadmissible (para 57). Turning to section 24(2) of the Charter, the Court concluded that the manner in which the police had seized the messages was an egregious breach of Marakah’s section 8 right, and to admit the evidence would bring the administration of justice into disrepute (para 73). Upon excluding the text messages under 24(2), the Court nullified Marakah’s convictions.

Dissent: Moldaver and Côté JJ.: A Problem of Control

The dissenting justices disagreed with the majority decision for both legal and policy reasons. Justices Moldaver and Côté agreed with the majority that 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” (para 98). According to the dissent, the strength of a person’s connection to the impugned subject matter rides in large part on the extent to which he or she controls the material. In other words, control is a “decisive variable” in determining the reasonableness of that applicant’s privacy interest (para 85).

The majority suggested that control was an important, but not a dispositive factor in the consideration of whether the claimant’s privacy interest was reasonable. According to the minority, this view “severs the interconnected relationship between privacy and control that has long formed part of the Court’s section 8 jurisprudence” (para 99). Moreover, from a policy standpoint, entitling an applicant to claim a reasonable expectation of privacy over subject matter over which he or she has no control is “at odds with the fundamental principle that individuals can … share information as they see fit in a free and democratic society” (para 99). The dissenting justices would have found that Marakah had no standing to bring a section 8 challenge because he lacked a reasonable privacy interest in the contents of Winchester’s phone.

Analysis

What does Marakah mean for everyday Canadians? As the Canadian Civil Liberties Association has argued, the answer is quite a lot. By finding that Marakah was entitled to claim section 8 standing, the Court’s majority decision established a robust “zone of privacy” in the digital sphere protected from state intrusion (para 37). This is good news from the perspective of everyday Canadians, who rely en masse on digital forms of communication, and who would assumedly prefer that their private conversations remain free from state interference. The trouble arises when we consider the case of private individuals who are not engaged in legally benign conversations. Justice Moldaver and Côté’s minority reasons express concern that if the scope of section 8 standing is expanded, a whole host of individuals engaged in criminal activity may seek to claim privacy interests over evidence that is central to establishing the case against them. In addition to adding complexity to criminal proceedings, a spike in section 8 claims will “gum up the works,” overburdening a criminal justice system already straining to manage its caseload (para 100).

Chief Justice McLachlin points out that police have several options when they want to seize incriminating information on someone’s phone. For example, if victims of crime come forward to police with information about incriminating messages stored on their devices, police will “doubtless” be able to obtain a warrant to search that device, nullifying the opposing party’s ability to bring a section 8 claim (para 50). Yet this suggestion seems to strain credulity. Justices Moldaver and Côté express particular concern about crimes that rely on digital communications, such as child luring, partner abuse, and sexual harassment, and crimes that involve vulnerable victims, including minors and the elderly. These types of crimes seem to rarely involve a victim who feels empowered to come forward to police and report the abuse. The victim may be a young person who does not recognize that he or she is being exploited. The victim may also be afraid to come forward for fear of repercussions from their assailant and/or the police. The majority judgment leaves open the possibility that victims being abused online will continue to be subjected to such behaviour unless it occurs to them to come forward. In the absence of that realization, the abuse may continue undetected.

In his concurring decision, Justice Rowe points out another troubling possibility raised by the majority decision. If the sender has a reasonable expectation of privacy in sent digital messages, what happens if the recipient does want to disclose the record to police? “Are we opening the door to challenges,” Justice Rowe asks, “by senders of text messages to the voluntary disclosure of those messages by recipients?” (para 89). Justices Rowe and Moldaver both point out that this scenario could lead to a “perverse” result: a complainant being prevented from reporting to police by the privacy interests of a person alleged to have harmed the complainant. This hypothetical strikes at the heart of the Marakah debate. To what extent are Canadians entitled to privacy in their digital communications, given that those communications could conceal socially harmful or dangerous behaviour?

We may begin to unpack the debate by questioning whether the scope of section 8 should cater to the majority (law-abiding Canadians) or the minority (those who use digital media in the course of breaking the law). Most Canadians, it is safe to assume, will use digital communications in a manner that is private in nature but legally benign. These Canadians are entitled to robust privacy protections. But what about those few who use digital mediums to assist them in breaking the law? Do we establish a weaker section 8 privacy right on the grounds that some individuals – but not all – will use those rights to conceal dangerous or predatory behaviour? Or do we advocate, as the majority did, for a robust protection of the digital sphere, ensuring the privacy of everyday Canadians but potentially allowing law-breaking individuals to evade police scrutiny?

The minority’s decision would have imposed a higher bar to claim section 8 standing, narrowing the scope of individuals who could claim the protection. The minority touted weaker privacy rights on the grounds that too much privacy is a dangerous thing to have: digital privacy can conceal illegal behaviour, and it is difficult for police to do the work of protecting people, particularly vulnerable individuals, if they are hindered by section 8 concerns. The minority relied in particular on the state’s duty to protect vulnerable individuals, such as children, from predatory online behaviour, arguing that it would be exceedingly difficult for police to make an effective case against online assailants if seizing digital evidence was blocked by a section 8 challenge (para 183).

The minority makes strong points in advocating for the protection of vulnerable persons, but at the same time it is undeniable that law-abiding Canadians are entitled to their privacy. This notion suggests that the majority decision got it right. As Chief Justice McLachlin pointed out, an individual’s privacy interest implicates related values of dignity, integrity, and autonomy, all of which are key to maintaining a healthy democratic state (Plant at para 293). It seems only logical to suggest that the state should not be entitled to seize someone’s phone without a warrant. It is also worth considering that many individuals charged with crimes will turn out to be innocent. The minority’s decision would have entitled police to unfairly infringe on these individuals’ privacy rights in the name of a moot criminal charge. Then again, the majority’s case-by-case model for determining a reasonable expectation of privacy may turn out to be too variable. For example, the majority defines “subject matter” from the Cole test in quite broad terms (para 20). Imposing a case-by-case analysis of every section 8 challenge aggravates the minority’s concern about overburdening the criminal justice system, and makes it difficult for the general public to predict which way a reasonable expectation of privacy analysis is going to go.

Conclusion: Content Neutrality

Ultimately, the majority judgment seems to be the way of the future. As technological innovations proliferate, our use of digital communication tools is only likely to increase. Doubtless Canadians will wish to see stricter, not looser, regulations around police searches of private digital conversations. It is also likely that most Canadians would prefer to see the scope of section 8 rights defined in relation to most Canadians, as opposed to narrowing the scope of privacy protections in order to preserve our ability to prosecute a law-breaking minority. Chief Justice McLachlin also points out that the question of whether an individual has a privacy interest in impugned material cannot be established retroactively. According to the majority, “the fruits of a search cannot justify an unreasonable privacy violation…To be meaningful, the section 8 analysis must be content neutral” (para 48). In keeping the focus on content neutrality, the Chief Justice insinuated that the section 8 protection extends prima facie to all Canadians, and cannot be overridden by police unless they first obtain a warrant. Rather than risk state intrusion into private material that turns out to be benign, the majority bestowed robust protections for Canadians, and left the onus of seizing suspicious material on police.