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Appeal crucial to understanding of privacy in digital era

Although the Ontario Court of Appeal recently ruled that there can be no expectation of privacy in a text message sent to a spouse or friend, there are hopes that the Supreme Court of Canada upholds the experience of regular Canadians by recognizing that privacy is still a social norm, Toronto criminal lawyer Jill Presser writes in Lawyers Weekly.

As Presser, principal at Presser Barristers, explains, in R. v. Marakah 2016 ONCA 542, Ontario’s top court recently found that the sender of a text does not have a reasonable expectation of privacy once the message is in the hands of the recipient.

“This means that once our text messages (or any communications sent through media that create digital records of our words) arrive on the other end, they are vulnerable to search and seizure by the police. And we cannot constitutionally challenge the search, seizure, or use of those communications,” she writes.

In Marakah, police seized the cellphones of the accused and co-accused in the course of investigating illegal gun trafficking. The phones contained text messages between the two that implicated them in gun trafficking.

“At a pre-trial hearing, Marakah brought successful challenges to the constitutionality of the searches of his home and cellphone under s. 8 of the Charter. The evidence obtained through those unconstitutional searches was excluded under s. 24(2) of the Charter. However, the judge, Ontario Superior Court Justice Laurence Pattillo, held that Marakah did not have standing to challenge the search of co-accused’s cellphone because he did not have a reasonable expectation of privacy in the text messages extracted from the co-accused’s phone,” writes Presser, who was not involved in the case and comments generally.

The texts seized from the co-accused’s phone were admitted in evidence and formed the bulk of the Crown’s case. Marakah was convicted of multiple firearms offences.

As Presser writes, the majority of the Court of Appeal for Ontario agreed with the trial judge and found that Marakah did not have a reasonable expectation of privacy in his messages in the co-accused’s phone.

“Of central importance to the majority’s holding was the fact that the sender of a text loses control over what happens to the message once it is received. They held that because the choice of medium resulted in a permanent record of the communication that the sender could not control, there could be no reasonable expectation of privacy in that communication.”

By contrast, she explains, in a strong dissenting opinion, Justice Harry LaForme recognized that text messages are the modern equivalent of private communications that have always been seen by the courts as private, echoing the decisions of the British Columbia Court of Appeal in R. v. Pelucco 2015 BCCA 370 and R. v. Craig 2016 BCCA 154.

Presser notes that a further appeal by Marakah will be heard by the Supreme Court of Canada in March 2017, and the issues raised will be important — not just because text messages are currently considered private in B.C. but not in Ontario, and not just in the context of digital communication for nefarious and criminal purposes.

“The issues raised in Marakah are crucial more generally to our evolving understanding of what is and is not private in our digital era. The nature of communication between private individuals is changing rapidly with the exponential development of communications technology. No longer are people predominantly exchanging their ideas orally and locally. Private communications occur throughout the globe via digital networks. They are now often text-based and automatically recorded. They live in the digital device of the sender, the receiver, in the records of the Internet service provider and on the server. As a result, the content of our private communications are easily disseminated in their original form,” writes Presser.

As it is a reality that we must communicate digitally, Presser writes, contrary to the holding of the Marakah majority, “the choice not to send text messages and to communicate in other ways is not a meaningful choice in 2016. This means that we will send digital messages, and we will create records of our communications that we cannot control.

"If only communications that we can completely control were considered private, we would have a sadly impoverished private sphere. Nothing would be private anymore. But our jurisprudence has long recognized that privacy should be defined normatively, with reference to how much space we aspire to keep free from the prying eyes of the state. A normative definition of privacy means that, in a digital world, the ability to control what happens to our communications cannot determine whether they are private or not.”

Ultimately, she writes: “It is to be hoped that the Supreme Court adopts a normative approach and upholds the lived experience of regular Canadians who communicate via text, by recognizing that privacy is still a social norm.”

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