The Ontario Court of Appeal has ruled that sent text messages seized from a recipient’s phone can be used as evidence against the sender in court.
The court rejected the appeal of Nour Marakah, convicted of gun trafficking offences, who argued that his text messages were inappropriately obtained and should have been excluded.
In a 2-1 decision, the court sided against him saying he did not have a “reasonable expectation of privacy” in the messages — a ruling lawyers say will have implications for privacy and is likely headed to the Supreme Court of Canada.
“If you and I are both suspected of drug trafficking, they can just grab your phone and get the text messages I sent you and not concern themselves with a warrant and use those against me,” says Susan Chapman, a partner at Ursel Phillips Fellows Hopkinson LLP, who represented the Criminal Lawyers Association as interveners in the case and supported Marakah’s position.
In pre-trial proceedings, Marakah successfully challenged the inclusion of evidence seized at his home and on his own cellphone through a s. 8 Charter challenge.
He, however, was unsuccessful at challenging the inclusion of text messages from the phone of a co-accused, Andrew Winchester.
The lawyers representing Marakah have filed notice to appeal the decision to the Supreme Court of Canada.
Writing for the majority in the decision, Justice James MacPherson said that Superior Court Justice Laurence Pattillo, who oversaw the pre-trial proceedings, did not err in his conclusion.
“There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient,” he wrote.
“In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.”
In his ruling, Pattillo said the sender of a text message has a reasonable expectation of privacy after it was sent, but not once it reaches its intended recipient. The judge said that there could no longer be an expectation of privacy at this point as “it is no longer under the control of the sender” and it is “under the complete control of the recipient to do with what he or she wants.”
The judge also argued that text messages are more akin to e-mails or letters than phone calls.
Chapman, however, says text messages are real-time, unvarnished, conversational exchanges that are the modern-day equivalent to telephone calls.
“My teenage son uses his cellphone text messaging the way I would have traditionally at his age have used a telephone,” she says.
“They don’t dial. They text message one another.”
In his dissent, Justice Harry LaForme argued the information found on Winchester’s phone should not be included as its seizure infringed on his Charter right to be “secure against unreasonable search or seizure.”
“In these circumstances, the court must distance itself from the pattern of disregard for Charter rights and it cannot do that if it gives the effect to society’s interest in having an adjudication on the merits,” he said.
“Therefore, the copies of the text messages obtained from Winchester’s phone should be excluded.”
Lawyers representing Marakah argued that he did have a reasonable expectation to privacy on the text messages regardless of what phone the messages were on.
Citing R. v. Telus Communications Co., they said text messages are private communications akin to telephone calls and that the police’s seizure of the text messages was an interception of that communication.
The Telus Supreme Court decision found police must obtain a wiretap authorization — instead of a general warrant — in order to compel a service provider to share a user’s text messages with them.
In their factum, Crown attorneys argued the Telus ruling did not apply as it did not involve text messages on a recipient’s phone.
David Fraser, a Halifax privacy lawyer at McInnes Cooper LLP, who was not involved in the case, questioned why the unlawful seizure by police of text messages would be treated any differently than a phone call.
“I would think that electronic communications like that would attract more of an expectation of privacy than something that’s in paper that can be easily lost, for example. Text messages are a bit more transitory,” he says.
“But I don’t think there is anything magic about a text message compared to an e-mail compared to a phone call,” he added.
The court joined Marakah’s proceedings with those of two other appeals that dealt with the same issue, and heard them all at the same time. All three appeals were dismissed in the ruling.
In those cases, Jermaine Smith and Tristin Jones were convicted of gun and drug charges in proceedings that included text messages that were obtained by the police. They argued a wiretap authorization was required to obtain the texts.
The Court of Appeal’s ruling contradicted a 2015 decision in the B.C. Court of Appeal, R v. Pelucco, which said there is a reasonable expectation of privacy when sending text messages.
In that case, the accused had arranged to sell cocaine to someone via text message, not knowing that the police had actually stopped the recipient of the messages. The police continued the conversation.
The court determined that the accused’s right to privacy had been breached, as a “sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient.”
Note: This story has been updated with a clarification reflecting that the lawyers representing Marakah have filed notice to appeal the decision to the Supreme Court of Canada.