Michael Ford (post until Oct. 31/19)
Commercial Litigation

Text messages a ‘discreet form of correspondence:’ SCC

A recent Supreme Court of Canada decision on the privacy of text messages is significant for criminal law, but it’s not expected to have the same impact in a civil context, Toronto commercial litigator Jeffrey Silver tells AdvocateDaily.com.

The majority of the court “made it very clear” in its ruling that police need to have a search warrant or production order to access text messages because “you’re talking about intrusion by the state,” says Silver, principal of Jeffrey C. Silver Barrister.

The “real kicker” of the case, he adds, is that in finding that the appellant’s right against unreasonable search and seizure was violated under s. 8 of the Charter, the court also wrote that “it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging. There is no more discreet form of correspondence.”

That statement, Silver says, “would distinguish text messaging from social media,” such as Facebook and Twitter.

In civil matters, he says a 2012 Ontario Court of Appeal decision that recognized a right of action for intrusion upon seclusion remains the leading case on privacy. The court referred to such deeply personal information as financial and health records, sexual practices and orientation, and private correspondence.

“The only thing the Supreme Court of Canada case may add is that if text messaging is the most private form of conversation, then the courts would be more open to allowing a claim for intrusion upon seclusion, because you’ve breached the most private form of communication,” Silver says.

“If I was a civil lawyer trying to assert an invasion of privacy action against someone for releasing what I said in a text message, I would try to argue based on the Supreme Court case together with the Ontario Court of Appeal decision.”

The Supreme Court held that the appellant, whose text messages were found by police on the phone of an alleged accomplice, had a subjective expectation that the conversation would remain private and that this expectation was objectively reasonable. It then excluded the evidence of the conversation.

The court added that a reasonable expectation of privacy will not apply in all cases involving text messages, and the facts of an individual case must be examined by a trial judge.

Silver says that in its 5-2 ruling, the court “was diametrically opposed on the issue of control, which is interesting.”

The majority found that the appellant, who sent the text messages, didn’t lose control over the information for the purposes of s. 8, even though the recipient could have disclosed the conversation to third parties.

“Sometimes, as with electronic conversations, control may arise from the choice of medium and the designated recipient,” the court said. “The risk that the recipient could have disclosed it, if he chose to, does not negate the reasonableness of [the appellant’s] expectation of privacy against state intrusion.”

That finding is “key,” Silver says. “The risk that the recipient could have disclosed the messages if he chose to does not negate the reasonableness of the expectation of privacy against state intrusion.”

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