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Presser appeared before SCC on texting privacy cases

Toronto criminal lawyer Jill Presser recently appeared before the Supreme Court of Canada as an intervener in two cases that carry important implications for texting privacy rights.

“The Supreme Court, in these matters, is articulating the scope of privacy for everyone when it comes to text messages,” she tells AdvocateDaily.com

"When you text with your lover, is that something the state can just look at or, when that text arrives at its recipient, do police need a warrant to look at it? How much is private?"

In both cases, Presser, principal of Presser Barristers, is counsel to the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), which is based at the University of Ottawa Faculty of Law’s Centre for Law, Technology & Society and advocates in the public interest.

The high court has reserved its decision on both matters.

In Nour Marakah v. Her Majesty the Queen, the issue is whether the appellant had a reasonable expectation of privacy in text messages sent by him and seized from a recipient’s phone. It will also look at whether he, as the sender of the message, has standing to challenge the constitutionality of the search and seizure of the receiver’s phone, Presser explains.

Marakah, who was convicted of firearms offences, took his case to the high court after the majority of the Ontario Court of Appeal dismissed his appeal, saying the sender of a text doesn’t have a reasonable expectation of privacy once the message is in the hands of the recipient, she says.

Justice Harry S. LaForme, dissenting at the OCA, would have allowed the appeal, excluded the text messages and acquitted him on all charges, says the SCC case summary.

Presser argued on behalf of CIPPIC that there is a “normatively and objectively reasonable expectation of privacy of texts in the hands of the recipient.

“The nature of this kind of communication means that the minute you hit 'send,' multiple copies exist in multiple places for multiple purposes,” she says.

“A text-based message is going to exist on the device of the sender and the receiver, and at least one intermediary in between. So to say — as the Court of Appeal has — that whether the sender has an expectation of privacy is driven by if he or she has control over the message, empirically means we will never have any expectation of privacy in our digital communications. That kind of reasoning basically obliterates any concept of privacy in modern communications,” Presser says. 

In Tristin Jones v. Her Majesty the Queen in Right of Canada, the issue at hand relates to the search and seizure of historical text messages.

The high court will determine whether the Ontario Court of Appeal “erred in upholding the trial judge’s ruling that a Part VI authorization wasn’t necessary for police to seize text messages" temporarily stored by a service provider, says the SCC’s summary of the case. It will also examine whether the majority of the Court of Appeal “erred in upholding the trial judge's ruling that the applicant did not have standing to challenge the admissibility of text message conversations in which he was an alleged participant" in messages seized from someone else's phone, says the SCC. 

Jones was convicted of firearms and drug offences.

“It is much harder to get a wiretap than a regular warrant and the idea is that there’s a special part of the Criminal Code (Part VI) that deals with wire tap authorizations,” Presser says. “It represents a recognition by Parliament that when you intercept someone’s live communication, that is more violative of privacy than retrieving copies of documents after the fact, as you might do with a production order or search warrant."

Presser says both Jones and Marakah are examples of the law catching up with technology. 

"To extend the law to new situations, new fact patterns, new issues, a case has to make its way up through the trial court to the Court of Appeal and then to the Supreme Court of Canada — that is not a fast process," she says.  

Presser says it is important for all Canadians to have clarity on these issues.

"These cases will determine the scope of the private sphere in the digital world."

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