R. v. Marakah – The Pendulum Has Swung Too Far: Accused Windfalls in the Digital Age
In the past few years it seems as if we have seen several Supreme Court decisions that represent a significant shift back towards the rights of the accused, at least as it relates to the digital realm. While it is difficult to pinpoint when this shift began, it is arguable that the decision in Vu1 from late 2013 represents the start of this transition, although one could argue that it started earlier that year with the Telus2 decision.
Following Vu, cases such as Spencer3 and Fearon4 represented significant decisions in favour of the accused (and in turn the Charter rights of citizens) as it relates to the reasonable expectation of privacy and search and seizure in the digital world.
The Supreme Court decision in R v Marakah5 from this past December continues the trend of ensuring a broad range of digital rights for Canadian citizens and how those rights relate to the common law powers of police. I fear that with Marakah, the pendulum has finally swung too far.
In Marakah, the accused was charged for firearm related trafficking offences.6 A key piece of evidence in convicting Nour Marakah were text message conversations between himself and a co-accused, Andrew Winchester.7 These text messages were located on the phone of Mr. Winchester and were obtained via search incident to arrest, rather than a search warrant.8
At issue was whether Mr. Marakah had a reasonable expectation of privacy regarding the text messages police obtained from Mr. Winchester’s phone.9 At trial, the judge held that Mr. Marakah had no standing to challenge the search of Mr. Winchester’s phone and this decision was later reinforced by the Ontario Court of Appeal.10
The Supreme Court however disagreed and in doing so applied the four-part test to determine whether a claimant has standing to challenge a section 8 Charter breach. The test included asking the following questions;
What was the subject matter of the alleged search?
Did the claimant have a direct interest in the subject matter?
Did the claimant have a subjective expectation of privacy in the subject matter?
If so, was the claimant's subjective expectation of privacy objectively reasonable?11
In Marakah, the Supreme Court took what I would have to describe as a very interesting approach in addressing these questions.
The Court found that the subject matter of the search was the “text message conversation” between Mr. Marakah and Mr. Winchester and as such Mr. Marakah obviously had an interest in that conversation as he was a participant in it.12 He also had a subjective expectation of privacy as he expected Mr. Winchester to keep the conversation private.13
It was the fourth question however that was most contentious. The subject requires an affirmative answer to this question to have standing to challenge a Charter breach. In asking whether Mr. Marakah’s subjective expectation of privacy was supported on an objective basis, the Court looked to four factors.14 The first of those factors was the place of the search and the majority concluded that text message conversations take place in essentially a virtual chat room.15
Firstly, this should raise several red flags regarding jurisdictional issues. If the place of the search is this virtual chat room, if an offence is carried out via text messages, then where is this offence occurring? For example, if an individual sent text messages to another person uttering threats, employing this “virtual chat room” approach, one must ask where were the threats received. Is this cyberspace located in Manitoba? What about Canada? Who holds jurisdiction?
Much more concerning than simply the place however is the issue of control. The Court in Marakah ruled that the accused maintained a degree of control in the sent text messages, even while they were on the phone of another party.16 Furthermore, the Court failed to establish a framework for alternative scenarios in the future and how this might apply.
In a strong dissenting opinion, Justice Moldaver argued that there may be great policy considerations because of the rule set out in Marakah and particularly focused on how this framework would impact victims of domestic violence as well as minors who are being solicited for sex by adults.17
A strict application of the test in Marakah requires that police potentially obtain a search warrant for messages on the phone of a victim.18 For instance, if a sexual predator sends text messages to a young victim which would make out the offence of invitation to sexual touching, by strictly applying the Court’s ruling in Marakah, the offender would retain a degree of control over these messages. This would require the victim to turn there phone over to police but not to let the police search it. The police would then need to seize and retain the victim’s phone and obtain a warrant to search it.
What this has also done is essentially make past text message conversations on the phone of another person more private in nature than voice conversations. For instance, if the victim in the above example had a phone conversation and recorded that conversation, she would be free to take that recording to the police under Canada’s one-party consent laws.19
The standard for intercepting private communications is already the highest standard in the Criminal Code for judicial authorizations. This decision in Marakah essentially places a higher bar on the privacy of text messages.
Did the court get it wrong in Marakah? My answer is a resounding yes. With that said, I do not believe that it will be too long before this issue gets revisited at which point the Court will come to its sense and realize that victims should have the rights and the control over the text messages they received to be able to disclose those messages to whoever they choose.
1 R v Vu, 2013 SCC 60.
2 R v TELUS Communications Co, 2013 SCC 16.
3 R v Spencer, 2014 SCC 43.
4 R v Fearon, 2014 SCC 77.
5 R v Marakah, 2017 SCC 59.
6 Ibid at para 95.
7 Ibid at para 2.
8 Ibid at para 65.
9 Ibid at para 13.
10 Ibid at para 3.
11 Ibid at para 11.
12 Ibid at para 14-20.
13 Ibid at para 22-23.
14 Ibid at para 24.
15 Ibid at para 25-30.
16 Ibid at para 38-45.
17 Ibid at 169-170.
18 Ibid at para 181.
19 Criminal Code, RSC 1985, c C-46, s 184(2).