Too Far! The Impact of R v. Marakah on Protecting Electronic Communications.

It is no secret that technology has connected us like never before. Interconnectedness has resulted in people having their information recorded in a wide array of places. People publish their information onto various social media sites, like Facebook and Instagram. Email inboxes store hundreds, sometimes thousands of communications from a large number of different authors. Instant messaging and text messages have become prominent forms of communication. These are examples of communications that are stored outside the reach of the author. Further, most of these communications are being held in the pockets of people across the country, in their phones. This raises the question of what kind of privacy interest does one have in the information they send to another individual. This question was recently posed to the Supreme Court in R v Marakah (R v Marakah 2017 SCC 59). The answer? The majority of the court found that the author of a text message has a privacy interest on the conversation, even if it is found on someone else’s phone.

The case involved Marakah and his accomplice, Winchester, who were arrested for firearms trafficking. When they were arrested, the police conducted a valid search incident to arrest of both of their homes. A Blackberry belonging to Marakah and an iPhone belonging to Winchester were seized as a result of this search. These phones were searched a few hours after their arrests. A search of the phones yielded a text conversation between Marakah and Winchester regarding the trafficking of hand guns. The evidence from Marakah’s own phone was deemed inadmissible at Marakah’s trial by an Applications Judge because of its unconstitutionality. However, the applications judge allowed the evidence of the conversation from Winchester’s iPhone to be used against Marakah citing that Marakah had no standing to exert section 8 search and seizure rights over something that was not his.

In a 5-2 split, the majority of the Supreme Court ruled that Marakah had a privacy interest in the electronic conversation. Even the portion of it on Winchester’s iPhone.

They explained that it was the conversation, not the phone, that garnered protection. The court likened a text message conversation to a private room with the door shut. There are only two participants in the conversation, with no one around to overhear. They use this fact to distinguish a private message from a public post that you may see on social media platforms. The fact that Marakah risked having his information disseminated by Winchester held no sway with the Supreme Court. He never gave up control of that conversation to the point that would allow for state interception.

The Supreme Court has the unenviable task of applying a then 35-year-old Charter (Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.) to ever-evolving technology. However, by finding that it is possible that you can have a privacy interest in electronic conversations, even if they are found on someone else’s device, the Supreme Court has significantly broadened the protections that section 8 offers. The Supreme Court characterized the subject matter of the search as the electronic conversation, not the physical phone. A privacy interest over an electronic conversation opens the door for a whole bunch of new protections. Emails share many of the same characteristics as a text message. They are both instant, electronic, and able to be opened on most phones. This new ruling would suggest that an author now has a privacy interest in their emails found in a recipient’s inbox. The impact of this decision is not limited to just emails. Many websites and services allow for instantaneous messaging and the storage of those messages. Facebook has their messenger app which allows Facebook users to send and store messages. Whatsapp is an app used around the world to send and receive messages. Even Instagram has a way that users can directly message each other. These platforms are similar enough to text messages that a sender may have a privacy interest in those messages.

Does this ruling allow for the sender of a picture to have a privacy interest? Sending pictures is just as easy as sending texts. If the answer to the above question is yes, there will be a direct effect on child pornography investigations. Now the sender of these explicit photos containing children will have a privacy interest in the inbox of the recipient. This ruling may make it more difficult for investigators to gather evidence against child pornography manufacturers if they can’t use evidence gathered from a recipient’s inbox.

R v Marakah features a very strong dissent written by Justice Moldaver. Justice Moldaver expresses his concern, perhaps rightly, that this decision will affect vulnerable members of society. The practical effect of this decision is that the police will have to get a warrant to access a phone when they are seeking evidence on someone who is the non-owner. The requirement for a warrant also includes when someone, namely a victim, voluntarily surrenders their phone to the police. A victim of harassment or someone who receives a threat via text will not be able to show the police those messages without the police getting a warrant first. While a warrant may not be hard to get in such circumstances, it is now an extra step for the police and extra time between offence and resolution for the victim. Justice Moldaver explains that people suffering from mental deficiencies, the elderly, and children will be the most affected as a result of this ruling.

The majority’s decision mitigates this concern by saying that warrants would be easy to get in instances where a victim comes forward and that the Crown can argue that the search was reasonable. They argue that unconstitutionally acquired evidence would be subject to the Grant test for exclusion under section 24(2) of the Charter (R v Grant 2009 SCC 32).

The problem with the warrantless options listed by the majority is that they are after-the-fact gambles by the Crown. To be reasonable, a warrantless search must be authorized by law. There is no law that would authorize a search of someone else’s phone. Search incident to arrest would not involve the phone of someone who was not a part of the arrest. An individual can not consent to a search of another person’s phone. This would leave only a 24(2) argument. This would be difficult to prove as well. The courts do not look kindly on officers who knowingly breach the Charter rights of a citizen. They are unlikely to allow evidence where an officer knew what they were doing was unconstitutional. While it may be easy to get a warrant when there is one sender and one receiver, it may not be so easy when there are multiple accused in a very complex case. In the decision, Justice Rowe expressed concern on the applicability of gaining a warrant in a case with multiple actors.

This ruling has significantly broadened the power of section 8. Section 8 now protects electronic conversations that appear on places other than the author’s devices. The majority of the Court believe that there are warrantless methods to have these conversations deemed admissible. However, these methods would have little chance of success when actually attempted. Justice Moldaver is right in his concern that these sweeping changes may have gone too far.