The Supreme Court of Canada (“SCC”) recently issued yet another controversial decision in R. v. Marakah.1 The central issue on appeal was whether the guarantee in s. 8 of the Canadian Charter of Rights and Freedoms2 against unreasonable search or seizure applies to text messages stored on another person’s cell phone.3 The majority, led by Chief Justice McLachlin, held that personal information shared in an electronic conversation between two people may be protected from state intrusion, regardless of the device on which the messages are stored.4 This conclusion was fiercely criticized in Justice Moldaver’s dissent.5 In his view, the majority’s position would lead to untenable outcomes, with the foremost concern that sexual predators would be able to exclude illicit messages from evidence.6
In this comment, I will focus on McLachlin C.J.C.’s application of the test for reasonable expectation of privacy, and why her approach is consistent with the privacy concerns of individuals and the need for the law to adapt to changes in technology. I will also consider Moldaver J.’s concerns and potential issues with future applications of Marakah.
The crux of the disagreement between McLachlin C.J.C. and Moldaver J. was whether Mr. Marakah exercised sufficient control over the messages to claim a reasonable expectation of privacy for the purpose of s. 8. Mr. Marakah had sent text messages to his accomplice, Mr. Winchester, about illegal firearms transactions. Both men were arrested, and the messages were discovered as the result of a wrongful search of Mr. Winchester’s phone.7 The Crown conceded the police search of the phone was not Charter-compliant and therefore there was no dispute about whether the Crown could use the messages against Mr. Winchester.8 However, the police sought to use the same messages against Mr. Marakah at his trial.9
For evidence to be excluded under s. 8, an accused must have “a reasonable expectation of privacy in the subject matter of the search,”10 which is assessed in “the totality of the circumstances.”11 The test for totality of circumstances asks: (i) what was the subject matter of the search, (ii) whether the accused had a direct interest in the subject matter, (iii) whether the accused had a subjective expectation of privacy in the subject matter, and (iv) was this subjective expectation objectively reasonable?12 For the expectation of privacy to be objectively reasonable, the court must consider (i) the place of the search, (ii) the private nature of the subject matter, and (iii) control over the subject matter.13
The way the subject matter is defined has a significant impact on the analysis, particularly with electronic information. McLachlin C.J.C. stated that physicality is not an important characteristic for defining subject matter, but rather the analysis should focus on “functional” characteristics.14 She noted that technological differences per se should not undermine protection of private communications.15 McLachlin C.J.C. concluded that the subject matter of the search was the “electronic conversation,” not the phone itself.16 Moldaver J. agreed with this conclusion,17 however, his analysis of control appears to be largely based on the physical device.
Regarding the place of the search, McLachlin C.J.C. remarked that although territorial legal tests are not always easily transposed into new domains,18 whether the place of an electronic conversation is a “metaphorical chat room” or a “real physical place” should not bar a finding of a reasonable expectation of privacy.19 Regarding the nature of the information, the focus should be on “the potential of a given electronic conversation to reveal personal or biographical information,” and not merely on the messages’ contents.20 Granted, it is somewhat unclear how this test is to be applied. However, this analysis suggests text messages are not automatically covered by a blanket expectation of reasonable privacy, and the surrounding circumstances play a large role in whether such an expectation is objectively reasonable.
In her analysis of control, McLachlin C.J.C. argued that control over the information itself is more important than control over the device,21 and “must be analyzed in relation to the subject matter of the search.”22 It follows that if the subject matter of the search is an electronic conversation, control is not lost simply because one does not have physical control over all devices on which it could be accessed.
Moldaver J. found control to be of supreme importance for finding a reasonable expectation of privacy,23 whereas McLachlin C.J.C. treated control as merely one factor in the analysis.24 Notwithstanding the importance of control for determining a reasonable expectation of privacy, Moldaver J.’s analysis mistakenly focuses more on the phone itself rather than the “electronic conversation,” the agreed-upon subject matter of the search. For example, Moldaver J. suggested that control over the information in a text message evaporates once the information is received on another phone.25 Again, although legal tests developed in territorial contexts are not always ideal for the digital realm, McLachlin C.J.C.’s approach better anticipates the challenges of applying old legal tests to new technologies. A telephone conversation intercepted and recorded by the police would not be broken up in the same way as an electronic conversation and potentially used as evidence against only one participant. Moldaver J. did suggest that a reasonable expectation of privacy could persist in exceptional cases, such as when a person’s phone is stolen by a third party,26 but it’s difficult to see how seizing personal information during an illegal police search does not also equate to an involuntary loss of control.
Moreover, in concluding that the text messages could be used against Mr. Marakah but not Mr. Winchester, Moldaver J. gives no treatment to the inconsistencies his approach would create. The notion that a person could be convicted on wrongfully seized evidence, but not the person from whom it was seized, is illogical. This lends further support to McLachlin C.J.C.’s approach of looking at control in terms of the information itself, and not simply in terms of a physical device.
McLachlin C.J.C.’s approach to control is also consistent with the purposive approach to s. 8 outlined by the SCC in Hunter et al. v. Southam Inc.27 It is important to keep the purpose of s. 8 in mind, which is to preserve private information from state intrusion,28 because despite Moldaver J.’s concerns, “[t]o be meaningful, the s. 8 analysis must be content neutral.”29 Handpicking what private information is protected under s. 8, or retroactively using the contents of a search as justification for it, would lead to arbitrary application and be inconsistent with the provision’s purpose.30
Moldaver J. also suggested that the majority’s conclusion is “at odds with the fundamental principle that individuals can and will share information as they see fit in a free and democratic society.”31 Although Moldaver J. did discuss limitations on professionals’ and commercial entities’ ability to share and collect information, this statement ignores legal constraints on individuals’ ability to freely share information without regard for others.32 The common law torts of violation of privacy and breach of confidence are used as remedies against dissemination of private information,33 and even the Charter guarantee of freedom of expression has its limits.34 Sharing information with another person in confidence does not necessarily give them the right to share it with the world, which suggests at least a residual amount of control. If s. 8 protection is “content neutral,” then even plans of potential criminal activity should remain free from state scrutiny unless a warrant is lawfully obtained.
Finally, Moldaver J. had concerns about the practical implications of the majority’s conclusions. First, that predators and abusers who send sexually explicit or threatening messages will now be able to argue a reasonable expectation of privacy in those messages,35 and second, that giving Mr. Marakah standing to challenge the search would burden the justice system, because courts will be “left to decipher on a case-by-case basis – without any guidance – whether a claimant has standing to challenge the search of an electronic conversation.”36
While perhaps not perfectly, McLachlin C.J.C. did pre-empt Moldaver J.’s concerns. McLachlin C.J.C. mentioned several limitations to Marakah’s application, and noted that the majority’s finding does not mean all text messages are always protected under s. 8.37 Moreover, the affirmative answer to the question of whether an accused had a reasonable expectation of privacy in the text messages simply means he or she has standing to argue his or her case.38 This does not mean all future arguments will be successful, particularly since the test for reasonable expectation of privacy is highly contextual. Likewise, the ruling does not mean any text messages in which a reasonable expectation of privacy is found will be excluded from evidence, only those discovered as a result of an unreasonable search and seizure. As long as police refrain from looking at messages volunteered by a third party before a warrant is obtained, the messages can be admitted into evidence.39
As for concerns about overburdening the judicial system, the argument that Charter breaches could be allowed merely because such violations are amenable to law enforcement is not particularly effective. The justice system is not static, and must continually adapt to court rulings that engage Charter rights.
The majority’s solution in this case is consistent with a purposive interpretation of s. 8, which is to protect individuals’ personal information from state intrusion. While challenges persist in finding a balance between privacy interests of individuals and the legitimate state interest in effective law enforcement—and perhaps a perfect balance does not exist—McLachlin C.J.C.’s approach is at least a solid start.
* JD Candidate (University of Saskatchewan).
1 2017 SCC 59,  2 SCR 608 [Marakah].
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
3 Marakah, supra note 1 at para 1.
4 Ibid at paras 37, 80.
5 With Justice Côté concurring.
6 Marakah, supra note 1 at para 100.
7 Ibid at para 2.
8 Ibid at paras 65-66.
9 Ibid at para 2.
10 Ibid at para 10.
12 Ibid at para 11.
13 Ibid at para 24.
14 Ibid at para 15.
15 Ibid at para 19, quoting Justice Abella in R v TELUS Communications Co., 2013 SCC 16, 356 DLR (4th) 195 (“[t]echnical differences inherent in new technology should not determine the scope of protection afforded to private communications” at para 5).
16 Ibid at paras 19-20.
17 Ibid at paras 20, 111.
18 Ibid at para 27. See also Tucows.Com Co. v Lojas Renner S.A., 2011 ONCA 548, 106 OR (3d) 561 at paras 41-66 for the discussion about whether a domain name could be considered personal property.
19 Marakah, supra note 1 at para 30.
20 Ibid at para 32.
21 Ibid at para 43.
22 Ibid at para 39.
23 Ibid at paras 118, 122-123.
24 Ibid at para 38.
25 Ibid at paras 126, 128.
26 Ibid at para 130.
27  2 SCR 145 at 156-157, 11 DLR (4th) 641.
28 Marakah, supra note 1 at para 37.
29 Ibid at para 48.
31 Ibid at para 99.
32 Ibid at paras 137-141.
33 See e.g. Doe 464533 v N.D., 2016 ONSC 541, 394 DLR (4th) 169 (breach of confidence, invasion of privacy and intentional infliction of mental distress were found after the plaintiff was coaxed by her ex-boyfriend into making a private video, which he subsequently posted online); Halley v McCann, 2016 CanLII 58945 (ON SCSM) (invasion of privacy was found when the plaintiff’s half-sister, who was an employee at a crisis facility, told other family members about the plaintiff’s stay at the facility).
34 Charter, supra note 2, s 2(b). In addition to the limitation in s. 1, there are internal limits on what is considered expression for the purpose of s. 2(b). See e.g. Irwin Toy Ltd. v Quebec (Attorney General),  1 SCR 927 at 967-68, 58 DLR (4th) 577 (the general notion that not all activity is protected under the scope of s. 2(b)); Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 at paras 57, 60-68,  3 SCR 141 (method or location of the expression); R v Khawaja, 2012 SCC 69 at para 70,  3 SCR 555 (threats or acts of violence).
35 Marakah, supra note 1 at para 100.
36 Ibid at para 198.
37 Ibid at paras 4-5.
38 Ibid at para 51.
39 Ibid at para 50.