Do We Have a Reasonable Expectation of Privacy When We Send Text Messages?
The Supreme Court of Canada will soon hear a case that will decide the issue of whether a person has a reasonable expectation of privacy in text messages they send to someone else. When a person sends a text message to someone else, and the police search the other person’s phone and find the text message you sent to that person, does the sender have a reasonable expectation of privacy in the text messages that are found on the receiver’s phone? Appeal courts from different provinces have been unable to agree on this issue. The British Columbia Court of Appeal has ruled that people DO have a reasonable expectation of privacy in text messages they send to someone else’s phone: see The Queen v. Pelucco 2015 BCCA 370 (click here for more info)
However, the Ontario Court of Appeal has ruled the opposite. In the case of The Queen v. Marakah2016 ONCA 542, the Ontario Court of Appeal explicitly disagreed with the BC Court of Appeal. They ruled that a person does not have a reasonable expectation of privacy in text messages they send to others because they have no control over what that person will do with the phone or the text once they receive it.
Mr. Marakah and his co-accused Mr. Winchester were charged with firearm trafficking offences after the police arrested and searched the phone of Mr. Winchester. On that phone they found text messages that had been sent to the phone (ie. to Mr. Winchester) by Mr. Marakah that were highly incriminating. The trial judge ruled that Mr. Marakah could not challenge the admissibility of the evidence found on the phone because it was not his phone that was searched and therefore he had no reasonable expectation of privacy in the phone.
Marakah appealed to the Ontario Court of Appeal. That court dismissed the appeal and ruled that the trial judge was correct in ruling that Mr. Marakah had no reasonable expectation of privacy in the text messages found on Mr. Winchester’s phone. By a two to one majority the Ontario Court of Appeal reasoned that because Mr. Marakah did not have ownership or control of Mr. Winchester’s phone and and because the contents of the text messages were not so personal that it could be said they revealed deeply personal information, Mr. Marakah had no reasonable expectation of privacy in the text messages. In coming to this conclusion the court said this:
[63] The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.
The Ontario Court of Appeal seemed to place great weight on the fact that the contents of the text messages were not deeply personal in nature and that it followed that control over the device searched was the most important factor to consider in the analysis. In the end, the Court concluded by saying that in most but not all cases, the sender of a text message will lose any expectation of privacy in the message once it reaches the recipient’s device:
[78]….In most cases – but not all – that should lead to a decision that a sender controls the content and recipient of a message. However, once the message is received, the recipient becomes the controller and the sender’s privacy interest will generally disappear.
It will be interesting to see how the Supreme Court of Canada decides this case.
This article is brought to you by Criminal Lawyer of Kelowna BC, Julian van der Walle. If you or someone you know has been charged with a criminal offence, contact Julian van der Walle.
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