R. v. Marakah: Received text messages and your reasonable expectation of privacy - Affordable Defence

1. R. V. MARAKAH: RECEIVED TEXT MESSAGES AND YOUR REASONABLE EXPECTATION OF PRIVACY http://affordabledefence.com/

2. On behalf of Edelson Clifford D'Angelo Friedman LLP posted in Criminal Defenseon August 22, 2016. The Court of Appeal for Ontario has recently ruled that once a text message has been sent and received then it is no longer considered private. In R. v. Marakah, the Court had to determine whether text messages should be excluded from evidence at trial under s. 24(2) of the Charter.[1] These text messages included incriminating details of firearms trafficking, which led to the accused’s conviction. In this case, the trial judge ruled that the search used to obtain the cell phones had violated the accused’s, Mr. Marakah, Charter right against unreasonable search and seizure. While the trial judge excluded evidence obtained from the search of their cell phones, as well as the search of the house, the text messages were not excluded because he found that the accused did not have a reasonable expectation of privacy in those text messages. The Court of Appeal upheld this decision. http://affordabledefence.com/

3. Whether text messages are private communications has been litigated before. In R. v. TELUS Communications Co., the Supreme Court stated that text messaging was a private form of communication akin to a phone call. [2] However, the Supreme Court focused there ruling on prospective and future messages and did not address the seizure of text messages after they were stored. Due to this, in Marakahthe Court of Appeal for Ontario made a distinction, that some would say is arbitrary, stating “a person has a reasonable expectation of privacy in a text message until it reaches its intended destination”.[3] This means that sent text messages have a reasonable expectation of privacy, but once a text message has been received this reasonable expectation of privacy is lost. http://affordabledefence.com/

4. This decision contradicts a ruling from the Court of Appeal for British Columbia. In R. v. Pelucco, the Court found that a text message conversation has much in common with a telephone conversation.[4] The Court stated that “a sender will ordinarily have a reasonable expectation that the text message will remain private”; thus, there is an objective reasonable expectation of privacy in text messages, no matter if the messages have been sent or received.[5] http://affordabledefence.com/

5. Thank You http://affordabledefence.com/