Rulings help define privacy expectations

“The real issue is going to be, ‘How tightly drawn is the net going to be around reasonable expectation of privacy?’”

At issue in Marakah was whether the search and seizure of a text message conversation about illegal firearms was valid. The ruling stated the accused, known as “M,” had sent text messages to an accomplice, known as “W,” about purchasing firearms. 

The ruling said police got warrants and seized both their phones and found text messages that were used as evidence against “M.” However, the accused argued that the text messages were inadmissible because their use as evidence violated M’s rights under s. 8 of the Charter, which limits unreasonable search and seizure. 

Ultimately, the court ruled in this case that the accused had a reasonable expectation of privacy and the firearms charges he faced were stayed. 

The court ultimately left open what kind of messages might be captured by this decision. Sandler expects the court to eventually weigh in on email messages, which he likens to letters,  while he sees electronic messages more closely related to conversations.

Shaun Brown, an Ottawa partner with nNovation LLP, where he practises privacy and cybersecurity law, sees the court’s majority decision as a departure from previous case law.

The same court found in R. v. Edwards in 1993 that the accused could not claim a reasonable expectation of privacy because he denied the drugs found in someone else’s apartment were his. Brown attributes the change of direction in the top court to the justices trying to see the issue from the perspective of the younger generation, their reliance upon these devices and the use of text messaging as a private form of communication.

Control was also an issue because the accused had deleted the messages from his phone and asked the recipient of the messages to delete them as well, which Brown says is a subjective expectation of privacy.

But there was a strong dissenting opinion that once the message is sent control is lost.

Justice Michael Moldaver raised the concern that the protections offered in Marakah could be extended to a situation involving a sexual predator sending a threatening message that is turned over to police.

“There’s two perspectives on it. My inclination is that you’re going to see courts in the future trying to distinguish facts from this case,” says Brown.

He suspects that other fact evidence might lead to a different conclusion. 

He wonders if the accused hadn’t asked the recipient to delete the messages or if several people were included in the text conversation if the individual’s expectation of privacy would have been diminished.

“There are a lot of ways that the totality of the circumstances could potentially lead to a different conclusion,” says Brown.

He says he expects that as courts face more technology-related cases that the justices will look at the expectations and perspectives of the younger generations and their increased reliance upon newer technology.

He points to Jane Doe 464533 v. N.D., in which a man was ordered to pay damages for posting a sexually explicit video of his former girlfriend to a porn site without her consent. The decision was quashed and sent back to court so he could present a defence, but Brown says that foreshadowed the decision in Marakah.

Molly Reynolds, who is part of the team representing Doe, says revenge porn cases such as Doe are part of an emerging area in civil litigation where a common defence is that the receiver of the intimate image has the right to do with it as he likes. She adds that a person should still have the reasonable expectation of privacy even if the information is in the hands of the recipient.

“[Marakah] really says ‘No, that’s not right,’” says Reynolds, whose practice with Torys LLP in Toronto focuses on privacy litigation, anti-spam and e‑discovery.

“Getting guidance from the Supreme Court on this expectation of privacy not being entirely removed once you’ve sent something electronically will really reinforce that and hopefully will help develop the law in the civil context there,” she says.

And while the recent cases relate to a variety of text messages and other person-to-person communications, there is some question about how broadly the decision will be applied, says David Elder, who practises communications, competition and privacy law with Stikeman Elliott LLP in Ottawa.

“Unfortunately, this is one of those cases where we don’t really know. We don’t know the full extent or the implications of the decision,” says Elder.

The decision leaves room to allow that perhaps not all electronic messages will always attract a reasonable expectation of privacy. 

How that conversation between people takes place, if the accused had a direct interest matter, if the subject had a reasonable expectation of privacy and whether that expectation was objectively reasonable all play a role in the final decision, says Elder.

The court considered a range of factors to assess the reasonableness of that expectation. Elder expects the decisions of other courts will depend on the individual circumstances of each case. 

“It may be a very different result if the search was in somebody’s home as opposed to a public place,” he observes. “I don’t think we’ll ever have a universal rule that there either is or isn’t a reasonable expectation of privacy in all electronic communications. 

“I think it’s always going to depend on the type of communication, its nature, who had access to it [and] where the seizure took place.”