Lawyers Financial

SCC ruling a 'refreshing reset to search law'


OTTAWA — Canadians can expect the texts they send to remain private — at least in some cases — even after the messages reach their destination, the Supreme Court declared in setting aside the firearms convictions of a man whose sent messages were uncovered by police.

In a potentially significant 5-2 ruling, the high court set aside the convictions against Nour Marakah, whose messages were found by Toronto police on the mobile phone of an alleged accomplice.

The court said Marakah had a reasonable expectation of privacy concerning the messages, meaning he had a right to challenge the police search of the phone as a violation of his guarantees under the Charter of Rights and Freedoms.

In her reasons for the majority, Chief Justice Beverley McLachlin noted that Marakah was the author of the text messages introduced as evidence against him, that he expected the electronic conversation to remain private and that he asked recipient Andrew Winchester numerous times to delete the messages.

Marakah's convictions were tossed out because, the high court concluded, police should have had a judicial warrant to search Winchester's phone and that effectively excludes the messages from evidence.

However, the court cautioned that gauging the expectation of privacy depends on the facts of a case and that the outcome might be different in other circumstances.

McLachlin said the expectation can hinge on the place of a search, even though it may not be a physical space in the digital era.

“This interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as a physical space,'' she wrote.

“The millions of us who text friends, family and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors.''

It is difficult to think of a type of conversation or communication capable of promising more privacy than text messaging, she added.

“A wife has no way of knowing that, when her husband appears to be catching up on emails, he is, in fact, conversing by text message with a paramour. A father does not know whom or what his daughter is texting at the dinner table.''

Marakah accepted the risk that Winchester might disclose the messages to other parties, but in doing so Marakah “did not give up control over the information'' or his right to Charter protection, McLachlin said.

She noted that even if an accused person has the right to argue there was a violation of their constitutional right against unreasonable search and seizure, it does not mean the argument will succeed.

In addition, not every kind of electronic communication will involve a reasonable expectation of privacy that allows an accused to make the Charter argument, she wrote.

“This case does not concern, for example, messages posted on social media, conversations occurring in crowded internet chat rooms, or comments posted on online message boards.''

In a dissenting opinion for the minority, Justice Michael Moldaver warned that the court's defence of privacy rights could prompt police, out of an abundance of caution, to seek a judicial warrant even in cases where a victim voluntarily hands over threatening or offensive messages he or she has received.

In turn, this could “strain police and judicial resources in an already overburdened criminal justice system,'' he wrote.

In her reasons, McLachlin said that if and when such concerns arise, ``it will be for courts to address them'' and that the protection of privacy in electronic conversations “should not be lightly denied.''

In an interview with, Oshawa criminal lawyer Lawrence Forstner describes the ruling as a refreshing reset to search law.  

“All private conversation comes with an expectancy of privacy. That used to be obvious because we would hush our tones, move away from eavesdroppers, close the doors,” he says. “When full-on digital communication took over, we were at risk of sacrificing the very notion of private conversation.”

Forstner, principal of Forstner Law, says the decision is one of high importance to all Canadians.

"This seems to be an excellent last case for our departing chief justice,” he says. “What she is saying is define it again, make exceptions, but don't forget that what is being protected is the privacy of communication. Technology cannot alter the right to privacy in communication. Therefore she returns to the venerable standard set in a previous high court ruling that a warrantless search is prima facie unreasonable."

Forstner notes that when it comes to the location of the communication, the court seems to take into account what has become the progression of search law — listening devices, wiretaps, video, audio, all those things the courts have carefully catalogued, but now more — and that the conversation takes place in the space between two people. 

“The court is saying that the apparatus of the communication is not important; private communication is to be protected by s. 8 of the Charter,” he says.

Forstner also says the dissent is suggesting the floodgates will open and that all manner of searches will be second-guessed  

“Usually the floodgates don't open. There is a conceptual reset to what the majority is doing, but the test for exclusion will always be multifactorial, and lower courts won't forget their balancing function,” he says. 

In a second ruling Friday, the Supreme Court dismissed an appeal of gun and drug convictions in a case where Ottawa police had a production order to seize text messages stored on a Telus server.

In keeping with the Marakah decision, McLachlin wrote that the convicted man, Tristin Jones, was improperly denied an opportunity to challenge the production order as a violation of Charter guarantees against unreasonable search and seizure.

However, McLachlin concluded the messages were lawfully seized and, as a result, his constitutional rights were not breached.

The British Columbia Civil Liberties Association intervened in the case, arguing that police should have to meet more stringent warrant requirements when seeking text messages from a telecommunications provider.

The Supreme Court decision “is an unfortunate development in the law,'' said Caily DiPuma, the association's acting litigation director.

- With files from 

© 2017 The Canadian Press

To Read More Lawrence Forstner Posts Click Here
Lawyer Directory
New Media Forensics (keep up until June 30, 2019)Hexigent Consulting (to remain until August 31/19)DivorcemateFeldstein Family Law (post until May 31/20)Jordana Goldlist (post until Sept. 30/19)Stancer Gossin Rose Benson Percival Brown - Flat Box Ad Unit - 300x125Leanne Townsend