Text messages not private once sent: Appeals Court

Ontario Appeals Court judges have ruled that there is no reasonable expectation of privacy for text messages once they’ve been sent, according to a recent decision. Last month, a majority decision ruled that Nour Marakah, who was convicted of multiple firearms offences that were “ultimately dependant on the contents of text messages” between Marakah and his former co-accused, Andrew Winchester, couldn’t challenge the evidence obtained from Winchester’s phone, even though evidence from his own phone was ruled as inadmissible. Marakah brought about the challenge under section 8 of the Canadian Charter of Rights and Freedoms, which guarantees “the right to be secure against unreasonable search or seizure.” In the reasons for the decision released July 8, judge James MacPherson said “the text messages in issue were sent by Mr. Marakah knowing that he had no control over what would happen to them once they reached Winchester’s phone. He obviously had some concern over what might happen to them, given his instruction to Winchester to delete them.” MacPherson also drew a line between case law relating to interception of phone calls and Marakah’s application. “In my view, a text message, because it is written, is more akin to an email or letter than voice communication. And because it is sent to the recipient, it is completely beyond the control of the sender and entirely at the whim of the recipient,” MacPherson wrote. In a dissenting opinion, judge Harry LaForme said that since both phones were seized and searched without the proper legal authority, evidence obtained from both devices should have been thrown out. LaForme also noted that “a typical exchange of text messages is a private communication between two people. It is essentially a modern version of a conversation and can contain as much private information as an oral conversation.” He added: “In my view, these private communications are an increasingly central element of the private sphere that must be protected under s. 8.” An application has been made for an appeal to be heard by the Supreme Court of Canada.

Text messages not private once sent: Appeals Court

Brief | August 8, 2016

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Text messages not private once sent: Appeals Court

Brief | August 8, 2016

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