R. v. Marakah

R. v. Marakah
Collection
Supreme Court Judgments
Date
2017-12-08
Neutral citation
2017 SCC 59
Report
[2017] 2 SCR 608
Case number
37118
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Rowe, Malcolm
On appeal from
Ontario
Notes
SCC Case Information: 37118
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608
Appeal Heard: March 23, 2017 Judgment Rendered: December 8, 2017 Docket: 37118
Between:
Nour Marakah
Appellant
and
Her Majesty The Queen
Respondent
- and -
Director of Public Prosecutions, Attorney General of British Columbia, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Criminal Lawyers’ Association of Ontario, British Columbia Civil Liberties Association and Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ.
Reasons for Judgment: (paras. 1 to 82)
McLachlin C.J. (Abella, Karakatsanis and Gascon JJ. concurring)
Concurring Reasons: (paras. 83 to 90)
Rowe J.
Dissenting reasons: (paras. 91 to 200)
Moldaver J. (Côté J. concurring)
R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608
Nour Marakah Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions,
Attorney General of British Columbia,
Attorney General of Alberta,
Samuelson‑Glushko Canadian Internet Policy
and Public Interest Clinic,
Criminal Lawyers’ Association of Ontario,
British Columbia Civil Liberties Association and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Marakah
2017 SCC 59
File No.: 37118.
2017: March 23; 2017: December 8.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Enforcement — Standing — Search and seizure — Evidence — Admissibility — Text messages — Mobile devices of accused and accomplice seized and searched without warrant — Whether accused has reasonable expectation of privacy in text message conversation recovered on accomplice’s device and therefore standing to challenge search and admission of evidence — Whether guarantee against unreasonable search and seizure in s. 8 of Canadian Charter of Rights and Freedoms protects text messages recovered on recipient’s device — Whether evidence should be excluded under s. 24(2) of Charter — If so, whether curative proviso in s. 686(1)(b)(iii) of Criminal Code applies — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).
M sent text messages to an accomplice, W, regarding illegal transactions in firearms. The police obtained warrants to search his home and that of W. They seized M’s BlackBerry and W’s iPhone, searched both devices, and found incriminating text messages. They charged M and sought to use the text messages as evidence against him. At trial, M argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search or seizure. The application judge held that the warrant for M’s home was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that M had no standing to argue that the text messages recovered from W’s iPhone should not be admitted against M. The judge admitted the text messages and convicted M of multiple firearms offences. A majority of the Court of Appeal agreed that M could have no expectation of privacy in the text messages recovered from W’s iPhone, and hence did not have standing to argue against their admissibility.
Held (Moldaver and Côté JJ. dissenting): The appeal should be allowed, the convictions set aside and acquittals entered.
Per McLachlin C.J. and Abella, Karakatsanis and Gascon JJ.: Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. Whether a claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances. To claim s. 8 protection, claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable. Only if a claimant’s subjective expectation of privacy was objectively reasonable will the claimant have standing to argue that the search was unreasonable. However, standing is merely the opportunity to argue one’s case. It does not follow that the accused’s argument will succeed, or that the evidence will be found to violate s. 8.
With a text message, the subject matter of the search is the electronic conversation between the sender and the recipient(s). This includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information. The subject matter is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy received on the recipient’s device that the police are after; it is the electronic conversation itself, not its components.
A number of factors may assist in determining whether it was objectively reasonable to expect privacy in different circumstances, including: (1) the place where the search occurred whether it be a real physical place or a metaphorical chat room; (2) the private nature of the subject matter, that is whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter.
Control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest. It is only one factor to be considered in the totality of the circumstances. Control must be analyzed in relation to the subject matter of the search, which in this case was an electronic conversation. Individuals exercise meaningful control over the information that they send by text message by making choices about how, when, and to whom they disclose the information. An individual does not lose control over information for the purposes of s. 8 of the Charter simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation. Therefore, even where an individual does not have exclusive control over his or her personal information, only shared control, he or she may yet reasonably expect that information to remain safe from state scrutiny.
In this case, M had a reasonable expectation of privacy in the text messages recovered from W’s iPhone. First, the subject matter of the alleged search was the electronic conversation between M and W, not W’s iPhone, from which the text messages were recovered. Second, M had a direct interest in that subject matter. He was a participant in that electronic conversation and the author of the particular text messages introduced as evidence against him. Third, he subjectively expected the conversation to remain private. M testified that he asked W numerous times to delete the text messages from his iPhone. Fourth, his subjective expectation was objectively reasonable. Each of the three factors relevant to objective reasonableness in this case support this conclusion. If the place of the search is viewed as a private electronic space accessible by only M and W, M’s reasonable expectation of privacy is clear. If the place of the search is viewed as W’s phone, this reduces, but does not negate, M’s expectation of privacy. The mere fact of the electronic conversation between the two men tended to reveal personal information about M’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, M exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. The risk that W could have disclosed it, if he chose to, does not negate the reasonableness of M’s expectation of privacy. Therefore, M has standing to challenge the search and the admission of the evidence of the text messages recovered from W’s iPhone. This conclusion is not displaced by policy concerns. There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some electronic conversations may engage s. 8 of the Charter. Moreover, different facts may well lead to a different result.
The Crown concedes that if M had standing the search was unreasonable. The text messages are thus presumptively inadmissible against him, subject to s. 24(2) of the Charter. In considering whether this evidence should be excluded under s. 24(2), society’s interest in the adjudication of M’s case on its merits is significant. The text messages offer highly reliable and probative evidence in the prosecution of a serious offence and their exclusion would result in the absence of evidence by which M could be convicted. This favours admission. However, the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence. This breached s. 8 of the Charter not only because of the extent of the search, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest. In addition, the police conduct had a substantial impact on M’s Charter‑protected privacy interest in the electronic conversation. On balance, the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2).
Without the erroneously admitted evidence obtained from W’s iPhone, M would have been acquitted. He was convicted instead. To allow that conviction to stand would be a miscarriage of justice. Therefore, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code does not apply.
Per Rowe J.: The approach based on the totality of circumstances set out by the majority with respect to the existence of a reasonable expectation of privacy accords with the jurisprudence of the Court. The technological means by which we communicate continue to change. An approach based on the totality of circumstances responds to such change because the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 of the Charter is meant to keep pace with technological development. Applying that approach to the facts of this case, M has standing to challenge the search. The modalities of texting inherently limited M in his capacity to exercise control over the record of his text message conversation with W. This alone should not be fatal to M’s reasonable expectation of privacy. Although the concerns raised by the minority are shared, those concerns do not arise on the facts of this case.
Per Moldaver and Côté JJ. (dissenting): M did not have a reasonable expectation of personal privacy in his text message conversations with W and therefore, M lacked standing to challenge the search of W’s phone under s. 8 of the Charter. Both legal and policy considerations lead to this conclusion. From a legal standpoint, the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search. This connection must be examined by looking at the totality of the circumstances in a particular case. Control over the subject matter of the search in the circumstances is a crucial factor in assessing an individual’s personal connection to it.
Control does not need to be exclusive. While a lack of exclusive control may diminish the strength of a reasonable expectation of privacy, it does not necessarily eliminate it. However, recognizing a reasonable expectation of privacy in the face of a total absence of control is both unprecedented and antithetical to the notion of personal privacy. Therefore, a total absence of control is a compelling indicator that an expectation of personal privacy is unreasonable, and that the individual does not have standing to challenge the search.
In addition, control need not be direct. A reasonable expectation of privacy will likely arise where a claimant exercises personal control over the subject matter in issue, as in the case of one’s home, possessions and body. However, under a functional approach, constructive control may suffice to ground a reasonable expectation of personal privacy in other contexts, including a legal, professional or commercial relationship.
In this case, the subject matter of the search is the text message conversations between M and W. Those conversations were accessed by police after they had been received on W’s phone. The conversations were not intercepted by police during the transmission process, and they were not accessed on M’s phone. These are important contextual distinctions that show that M had no control over the subject matter of the search in the circumstances of this case. Rather, W had exclusive control over the text message conversations on his phone. W was free to disclose them to anyone he wished, at any time and for any purpose. To conclude that M had a reasonable expectation of personal privacy in those conversations on W’s phone despite his total lack of control over them severs the interconnected relationship between privacy and control that has long formed part of the Court’s s. 8 jurisprudence. It is equally at odds with the fundamental principle that individuals can and will share information as they see fit in a free and democratic society.
The risks of state access and public access are not distinct for the purposes of the reasonable expectation of privacy test. If an expectation of personal privacy is unreasonable against the public, then it is also unreasonable against the state. If M assumed the risk of W allowing the public to access his text message conversations, then M assumed the risk of the police also accessing it.
The majority’s approach to the reasonable expectation of privacy analysis in this case suffers from three notable shortcomings. First, it does not determine where the search actually occurred, despite maintaining that the strength of M’s expectation of privacy will vary depending on the place of the search. Without knowing whether the place of the search is a metaphorical chat room or W’s physical phone, courts have no way of knowing how to assess the strength of M’s expectation of privacy. This uncertainty will have serious implications when courts must assess the impact of an unlawful search on a claimant’s s. 8 right for the purposes of a s. 24(2) Charter analysis.
Second, although the majority purports to confine its finding of a reasonable expectation of privacy to the circumstances of this case, applying its framework leads to only two possible conclusions. Either all participants to text message conversations enjoy a reasonable expectation of privacy, or criminal justice stakeholders, including trial and appellate judges, are 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. To hold that everyone has a reasonable expectation of privacy in text message conversations when those conversations are on another person’s phone effectively eradicates the principle of standing and renders it all but meaningless. As such, under the majority’s all‑encompassing approach to standing, even a sexual predator who lures a child into committing sexual acts and then threatens to kill the child if he or she tells anyone will retain a reasonable expectation of privacy in the text message conversations on the child’s phone. It is hard to think of anything more unreasonable. In the alternative, it is highly unsatisfactory to leave criminal justice stakeholders to guess when and under what circumstances electronic messages will not attract a reasonable expectation of privacy.
Third, from a policy standpoint, granting M standing in these circumstances vastly expands the scope of persons who can bring a s. 8 challenge. The majority adopts an approach to s. 8 that has no ascertainable bounds and threatens a sweeping expansion of s. 8 standing. This carries with it a host of foreseeable consequences that will add to the complexity and length of criminal trial proceedings and place even greater strains on a criminal justice system that is already overburdened. Worse yet, expanding the scope of persons who can bring a s. 8 challenge risks disrupting the delicate balance that s. 8 strives to achieve between privacy and law enforcement interests, particularly in respect of offences that target the most vulnerable members of our society. Although these consequences are not determinative of the reasonableness of M’s expectation of privacy, their cumulative effect weighs heavily in favour of denying him standing.
Denying M standing does not however grant the police immunity from s. 8 of the Charter. Where, as here, the police activity amounts to a search or seizure, it remains subject to s. 8 and a particular claimant’s standing should not be mistaken as the exclusive means of enforcement. Another claimant may have standing to bring a s. 8 challenge against the search or seizure in his or her own criminal trial, or to bring a claim for Charter damages. Moreover, even where s. 8 standing is denied, ss. 7 and 11(d) of the Charter offer residual protection that can, in certain circumstances, provide a claimant with an alternative route to challenge the propriety of police conduct in the course of a search or seizure. This ensures that the effects of the standing requirement are not exploited by the police as a loophole in Charter protection.
This is not a case in which it is appropriate to exercise the residual discretion to exclude evidence under ss. 7 and 11(d) of the Charter. The application judge found that the searches of the text message conversations stored on the phones of M and W both infringed s. 8 of the Charter. As neither claimant had standing to challenge the search of the other’s phone, evidence of those text message conversations was admissible against both M and W. It has not been suggested that the police conduct giving rise to it was a product of design. Nor do the application judge’s findings indicate that the police engaged in deliberate Charter evasion or serious misconduct in the course of either search. In these circumstances, there is no basis to conclude that the fairness of M’s trial was tainted by the admission of the record of the conversations obtained in the search of W’s phone.
Cases Cited
By McLachlin C.J.
Applied: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; distinguished: R. v. C. (W.B.) (2000), 142 C.C.C. (3d) 490, aff’d 2001 SCC 17, [2001] 1 S.C.R. 530; referred to: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Edwards, [1996] 1 S.C.R. 128; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Orlandis‑Habsburgo, 2017 ONCA 649; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Wildman, [1984] 2 S.C.R. 311; Colpitts v. The Queen, [1965] S.C.R. 739; R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212.
By Rowe J.
Referred to: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657.
By Moldaver J. (dissenting)
R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Belnavis (1996), 29 O.R. (3d) 321, aff’d [1997] 3 S.C.R. 341; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Pugliese (1992), 8 O.R. (3d) 259; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Sandhu (1993), 82 C.C.C. (3d) 236; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Shayesteh (1996), 31 O.R. (3d) 161; R. v. Rendon (1999), 140 C.C.C. (3d) 12; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Rogers Communications Partnership, 2016 ONSC 70, 128 O.R. (3d) 692; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Sandhu, 2014 BCSC 303; R. v. Lowrey, 2016 ABPC 131, 357 C.R.R. (2d) 76; R. v. Craig, 2016 BCCA 154, 335 C.C.C. (3d) 28; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Orlandis‑Habsburgo, 2017 ONCA 649; R. v. Reeves, 2017 ONCA 365, 350 C.C.C. (3d) 1; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Wills (1992), 7 O.R. (3d) 337; R. v. Borden, [1994] 3 S.C.R. 145; R. v. McBride, 2016 BCSC 1059; R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; R. v. Harrer, [1995] 3 S.C.R. 562.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 24(1), (2).
Criminal Code, R.S.C. 1985, c. C‑46, Part VI, ss. 183 “private communication”, 184.1, 184.4, 278.1 to 278.91, 686(1)(b)(iii).
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.
Authors Cited
Hubbard, Robert W., Peter M. Brauti and Scott K. Fenton. Wiretapping and Other Electronic Surveillance: Law and Procedure, vol. 2. Aurora, Ont.: Canada Law Book, 2000 (loose‑leaf updated June 2017, release 50).
McLuhan, Marshall. Understanding Media: The Extensions of Man. New York: McGraw‑Hill, 1964.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.
APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and LaForme JJ.A.), 2016 ONCA 542, 131 O.R. (3d) 561, 359 C.R.R. (2d) 70, 338 C.C.C. (3d) 269, 30 C.R. (7th) 263, 352 O.A.C. 68, [2016] O.J. No. 3738 (QL), 2016 CarswellOnt 10861 (WL Can.), affirming the accused’s convictions for firearms offences and the pre‑trial application ruling. Appeal allowed, Moldaver and Côté JJ. dissenting.
Mark J. Sandler and Wayne Cunningham, for the appellant.
Randy Schwartz and Andrew Hotke, for the respondent.
Nicholas E. Devlin and Jennifer Conroy, for the intervener the Director of Public Prosecutions.
Written submissions only by Daniel M. Scanlan, for the intervener the Attorney General of British Columbia.
Maureen McGuire, for the intervener the Attorney General of Alberta.
Jill R. Presser and David A. Fewer, for the intervener the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic.
Susan M. Chapman, Naomi Greckol‑Herlich and Bianca Bell, for the intervener the Criminal Lawyers’ Association of Ontario.
Gerald Chan, for the intervener the British Columbia Civil Liberties Association.
Christine Lonsdale and Charlotte‑Anne Malischewski, for the intervener the Canadian Civil Liberties Association.
The judgment of McLachlin C.J. and Abella, Karakatsanis and Gascon was delivered by
The Chief Justice —
I. Introduction
[1] Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant? The question in this appeal is whether the guarantee against unreasonable search and seizure in s. 8 of the Canadian Charter of Rights and Freedoms can ever apply to such messages.
[2] The appellant, Nour Marakah, sent text messages regarding illegal transactions in firearms. The police obtained warrants to search his home and that of his accomplice, Andrew Winchester. They seized Mr. Marakah’s BlackBerry and Mr. Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Mr. Marakah and sought to use the text messages as evidence against him. At trial, Mr. Marakah argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 right against unreasonable search and seizure: see trial reasons, reproduced in R.R., at pp. 1-26.
[3] The application judge held that the warrant for Mr. Marakah’s residence was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that Mr. Marakah had no standing to argue that the text messages recovered from Mr. Winchester’s iPhone should not be admitted against him: application judge’s reasons, reproduced in A.R., at pp. 1-27. He admitted the text messages and convicted Mr. Marakah of multiple firearms offences. The majority of the Court of Appeal for Ontario, LaForme J.A. dissenting, agreed that Mr. Marakah could have no expectation of privacy in the text messages recovered from Mr. Winchester’s iPhone, and hence did not have standing to argue against their admissibility: 2016 ONCA 542, 131 O.R. (3d) 561.
[4] I conclude that, depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.
[5] The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy (see Moldaver J.’s reasons, at paras. 100 and 167-68); whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge.
[6] In this case, Mr. Marakah subjectively believed his text messages to be private, even after Mr. Winchester received them. This expectation was objectively reasonable. I therefore conclude that Mr. Marakah has standing to challenge the use of the text messages against him on the grounds that the search violated s. 8 of the Charter.
[7] Ordinarily, standing established, it would be for the trial judge to determine whether the text messages in fact enjoyed s. 8 protection in all of the circumstances of the case. However, the Crown concedes that, if Mr. Marakah has standing, the search was unreasonable and violated Mr. Marakah’s right under s. 8 of the Charter. The remaining question is whether the evidence of the conversation should have been excluded under s. 24(2) of the Charter. I conclude that it should have been. This principled approach conforms to the jurisprudence, and should not be undermined by impassioned hypotheses. I would therefore allow the appeal, set aside the convictions and acquit Mr. Marakah.
II. Analysis
A. When Does Section 8 Protection Apply?
[8] The issue is whether the courts below erred in holding that an accused can never claim s. 8 protection for text messages accessed through a recipient’s phone because the sender has no privacy interest in the messages if they are not contained within his or her own device. The question is whether Mr. Marakah could have had a reasonable expectation of privacy in those messages.
[9] Section 8 of the Charter provides that
[e]veryone has the right to be secure against unreasonable search or seizure.
[10] Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18. To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; see also Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60; Katz v. United States, 389 U.S. 347 (1967), at p. 361, per Harlan J., concurring. Whether the claimant had a reasonable expectation of privacy must be assessed in “the totality of the circumstances”: Edwards, at paras. 31 and 45; see also Spencer, at paras. 16-18; Cole, at para. 39; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26; Tessling, at para. 19. This approach applies to determining whether there is a reasonable expectation of privacy in a given text message conversation.
[11] In considering the totality of the circumstances, four “lines of inquiry” (Cole, at para. 40) guide the court’s analysis:
1. What was the subject matter of the alleged search?
2. Did the claimant have a direct interest in the subject matter?
3. Did the claimant have a subjective expectation of privacy in the subject matter?
4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?
(See also Spencer, at para. 18; Patrick, at para. 27; Tessling, at para. 32.)
[12] Only if the answer to the fourth question is “yes” — that is, if the claimant’s subjective expectation of privacy was objectively reasonable — will the claimant have standing to assert his s. 8 right. If the court so concludes, the claimant may argue that the state action in question was unreasonable. If, however, the court determines that the claimant did not have a reasonable expectation of privacy in the subject matter of the alleged search, then the state action cannot have violated the claimant’s s. 8 right. He will not have standing to challenge its constitutionality.
B. Did Mr. Marakah Have a Reasonable Expectation of Privacy in the Text Messages?
[13] I conclude that the four lines of inquiry referred to above establish that Mr. Marakah had a reasonable expectation of privacy in the text messages recovered from Mr. Winchester’s iPhone. The subject matter of the alleged search was the electronic conversation between Mr. Marakah and Mr. Winchester. Mr. Marakah had a direct interest in that subject matter. He subjectively expected it to remain private. That expectation was objectively reasonable. He therefore has standing to challenge the search.
(1) What Was the Subject Matter of the Search?
[14] The first step in the analysis is to identify the subject matter of the search: see Spencer, at para. 18; Cole, at para. 40; Patrick, at para. 27; Tessling, at para. 32. How the subject matter is defined may affect whether the applicant has a reasonable expectation of privacy. Care must therefore be taken in defining the subject matter of a search, particularly where the search is of electronic data: see Spencer, at para. 23.
[15] The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. As Doherty J.A. stated in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 65, a court identifying the subject matter of a search must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action”. In Spencer, at para. 26, Cromwell J. endorsed these words and added that courts should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” and should look at “not only the nature of the precise information sought, but also at the nature of the information that it reveals”. The court’s task, as Doherty J.A. put it in Ward, is to determine “what the police were really after” (para. 67).
[16] One option can be eliminated at the outset. The subject matter of the search at issue was not Mr. Winchester’s iPhone, from which the text messages in this case were recovered. Neither the iPhone itself nor its contents generally is what the police were really after. The subject matter must, therefore, be defined more precisely.
[17] Correctly characterized, the subject matter of the search was Mr. Marakah’s “electronic conversation” with Mr. Winchester: see R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 5, per Abella J. To describe text messages as part of an electronic conversation is to take a holistic view of the subject matter of the search. This properly avoids a mechanical approach that defines the subject matter in terms of physical acts, spaces, or modalities of transmission: see Spencer, at paras. 26 and 31. It also reflects the technological reality of text messaging.
[18] “Text messaging” refers to the electronic communications medium technically known as Short Message Service (“SMS”). SMS uses standardized communication protocols and mobile telephone service networks to transmit short text messages from one mobile phone to another: TELUS, at para. 111, per Cromwell J., dissenting but not on this point. Colloquially, however, “text messaging” (or the verb “to text”) can also describe various other person-to-person electronic communications tools, such as Apple iMessage, Google Hangouts, and BlackBerry Messenger. These means of nearly instant communication are both technologically distinct from and functionally equivalent to SMS. Different service providers also handle SMS messages differently. The data that constitute individual SMS or other text messages may exist in different places at different times. They may be transmitted, stored, and accessed in different ways. But the interconnected system in which they all participate functions to permit rapid communication of short messages between individuals. In these reasons, I use “text messages” to refer to the broader category of electronic communications media, and “SMS” or “SMS messages” to refer to that medium specifically.
[19] When a text message is searched, it is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy in the recipient’s “inbox” that the police are really after; it is the electronic conversation between two or more people that law enforcement seeks to access. Where data are physically or electronically located varies from phone to phone, from service provider to service provider, or, with text messaging more broadly, from technology to technology. The s. 8 analysis must be robust to these distinctions, in harmony with the need to take a broad, purposive approach to privacy protection under s. 8 of the Charter: Spencer, at para. 15; Hunter, at pp. 156-57. If “the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 is meant to keep pace with technological development” (R. v. Wong, [1990] 3 S.C.R. 36, at p. 44), then courts must recognize that SMS technology, in which messages may be said to be “sent”, “received”, and “transmitted” between devices, is just one means of text messaging among many and is, from the point of view of the user, functionally identical to numerous others. As Abella J. stated in TELUS, at para. 5, “[t]echnical differences inherent in new technology should not determine the scope of protection afforded to private communications”. The subject matter of the search is the conversation, not its components.
[20] I conclude, and Moldaver J. agrees, that for the purpose of determining whether s. 8 is capable of protecting SMS or other text messages, the subject matter of the search is the electronic conversation between the sender and the recipient(s). This includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information: see Spencer, at paras. 26-31; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 38, per Deschamps J., at para. 81, per Abella J., and at para. 119, per McLachlin C.J. and Fish J.; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 174-75, per Deschamps J., and at para. 227, per Bastarache J.; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 67, per Binnie J. So it was here.
(2) Did Mr. Marakah Have a Direct Interest in the Subject Matter?
[21] Mr. Marakah had a direct interest in the information contained in the electronic conversation that was the subject matter of the search: see Spencer, at para. 50; Patrick, at para. 31. He was a participant in that electronic conversation and the author of the particular text messages introduced as evidence against him.
(3) Did Mr. Marakah Have a Subjective Expectation of Privacy in the Subject Matter?
[22] The claimant must have had a subjective expectation of privacy in the subject matter of the alleged search for s. 8 to be engaged. As Binnie J. acknowledged in Patrick, at para. 37, the requirement that the claimant establish a subjective expectation of privacy is not “a high hurdle”: see also R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 20, per Côté J.
[23] Whether Mr. Marakah had a subjective expectation of privacy in the contents of his electronic conversation with Mr. Winchester has never been in serious dispute. Mr. Marakah’s evidence was that he expected Mr. Winchester to keep the contents of their electronic conversation private: see application judge’s reasons, at para. 91. He testified that he asked Mr. Winchester numerous times to delete the text messages from his iPhone (ibid.). I conclude that Mr. Marakah subjectively expected that the contents of his electronic conversation with Mr. Winchester would remain private.
(4) Was Mr. Marakah’s Subjective Expectation of Privacy Objectively Reasonable?
[24] The claimant’s subjective expectation of privacy in the subject matter of the alleged search must have been objectively reasonable in order to engage s. 8. Over the years, courts have referred to a number of factors that may assist in determining whether it was reasonable to expect privacy in different circumstances: see Cole, at para. 45; Tessling, at para. 32; Edwards, at para. 45. The factors that figured most prominently in the arguments before us are: (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informatio