Supreme Court

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Text messages may be protected against search and seizure

Accused sent text messages regarding illegal transactions in firearms. Police obtained warrants to search accused’s home and that of his accomplice, W. They seized accused’s phone and W’s phone, searched both devices, and found incriminating text messages. At trial, accused argued that text messages should not be admitted against him because they were obtained in violation of his right against unreasonable search and seizure under s. 8 of Canadian Charter of Rights and Freedoms. Application judge held that accused had no standing to argue that text messages recovered from W’s phone should not be admitted against him. Text messages were admitted and accused was convicted of multiple firearms offences. Majority of Court of Appeal for Ontario agreed that accused could have no expectation of privacy in text messages recovered from W’s phone, and hence did not have standing to argue against their admissibility. Accused appealed. Appeal allowed. Depending on totality of circumstances, text messages that have been sent and received may in some cases be protected under s. 8 of Charter, and, in this case, accused had standing to argue that text messages at issue enjoyed s. 8 protection. Accused had reasonable expectation of privacy in text messages recovered from W’s phone. Subject matter of alleged search was electronic conversation between accused and W. Accused had direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable.

R. v. Marakah (2017), 2017 CarswellOnt 19341, 2017 CarswellOnt 19342, 2017 SCC 59, 2017 CSC 59, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellOnt 10861, 2016 ONCA 542, J.C. MacPherson J.A., J. MacFarland J.A., and H.S. LaForme J.A. (Ont. C.A.).


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