However, he says in both Jones and Marakah the SCC “really held that the expectation of privacy — or the privacy interests in text messages — is not in the phone or the account where they’re found, but in the content of the message itself, the information contained in the text message.” He also says there are other important elements on the case.
“I was pleased with the decision on the standing issue, because the Crown had taken the position throughout, from trial on, that the accused had to testify in order to establish a subjective expectation of privacy in the text messages, and that any expectation of privacy could not relate to text messages found on somebody else’s account,” he says.
“So, they completely agreed with me on that, that no, there is no requirement for the accused to testify if the Crown is alleging they are his text messages, then for the purposes of a s. 8 application, it can be assumed that they are his text messages.”
The ruling said it is “objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient.”
“That is intuitive. One would not reasonably expect the service provider to share the text messages with an unintended recipient, or post them publicly for the world to see,” said the ruling. “In this case, it was therefore reasonable for [the accused] to expect that the text messages that he sent would not be shared by Telus with any parties other than the intended recipient, notwithstanding that he relinquished direct control over those messages.”
However, while the court determined that the accused had a right to challenge the order, the SCC ultimately concluded that the evidence was properly obtained by police.
“[The accused’s] s. 8 Charter right was not breached because records of text messages stored on a service provider’s infrastructure were lawfully seized by means of a production order under s. 487.012 of the Criminal Code,” said the ruling.
“Based on its plain meaning and read in context, the term ‘intercept’ in s. 183 of Part VI of the Criminal Code encompasses the production or seizure of historical text messages stored by a service provider.”
In Marakah, SCC Justices Beverley McLachlin, Rosalie Abella, Andromache Karakatsanis and Clément Gascon (with Justices Michael Moldaver and Suzanne Côté dissenting) found that text messages of an accused were improperly seized by police.
In the ruling, the accused, known as “M,” had sent text messages to an accomplice, known as “W,” about firearms.
After police obtained warrants and seized both their phones, they found text messages that were used as evidence. However, the accused argued that the seizure had violated his rights under s. 8 of the Charter, which limits unreasonable search and seizure.
“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,” said the ruling.
However, the ruling noted that “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,” said the ruling. “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.”
The SCC held, therefore, that the convictions should be set aside.