On July 8, 2016, the Ontario Court of Appeal released its split 2-1 ruling in R v Marakah, 2016 ONCA 542 that a sender does not have an objectively based reasonable expectation of privacy in a text message received by a recipient. Marakah therefore did not have standing to challenge the admissibility of text messages seized by the police from a co-defendant’s iPhone. The majority declined to follow the ruling in R v Pelucco, 2015 BCCA 370 that I discussed in my post titled Does the sender have a privacy interest in a delivered text message? dated November 22, 2015. Here’s the story.

On November 14, 2014, Marakah was convicted of conspiracy to traffic in firearms and sentenced to nine years imprisonment. The text messages that he sought to suppress at trial were exchanged between him and his accomplice, Andrew Winchester, and clearly implicated them in gun trafficking. Justice Laurence A. Pattillo, the motion judge, held that when a text message reaches its intended recipient it is no longer under the control of the sender and the exclusion application therefore failed the property based standing test set out by Justice Peter Cory in R v Edwards, [1996] 1 SCR 128. Marakah appealed.

Justice J.C. MacPherson, writing for the majority, characterized the question this way, at para. 44: “The appellant contends that the assessment of a reasonable expectation of privacy in information is governed by different considerations than those set out in Edwards. He argues that the application judge placed undue weight on the ‘territorial or proprietary analysis’ in Edwards (and other cases following it) and failed to give due consideration to the normative nature of determining a reasonable expectation of privacy over information.” Justice MacPherson rejected that argument, at paras. 46-56, where he concluded that a review of the jurisprudence reflects that the Supreme Court of Canada recognizes Edwards as the foundation for any analysis of a claimed privacy right as affirmed in R v Tessling, [2004] 3 SCR 432 and R v Patrick, [2009] 1 SCR 579.

In Edwards, Justice Cory set out a list of factors, at para. 45, relevant to the assessment of a privacy claim. The list is not exhaustive and includes “possession or control” of the property or place searched. Justice MacPherson mainly relied on the control factor as dispositive, at paras. 57 and 63-64:

“[The Application judge] found that the factors that weighed most heavily in his assessment of the totality of the circumstances were that: (1) the appellant had no ownership in or control over Winchester’s phone; and (2) there was no obligation of confidentiality between the parties. I agree with his analysis.

…[T]he ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.

This is far from being a question of whether the appellant had ‘exclusive control’ over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.”

That conclusion compelled rejection of the contrary result reached by a majority of the British Columbia Court of Appeal in Pelucco. Justice MacPherson said this, at paras. 69-71: “The anchor of the majority decision in Pelucco, as I read it, is the proposition at para. 68 that ‘[a] sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of the recipient’. With respect, I do not agree with this proposition. There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient. In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.”

In dissenting reasons, Justice H.S. LaForme focused on principles that go beyond the shielding of interests ranging from intimate secrets to data generated and stored by an internet service provider. He began the analysis, at para. 88, with the constitutional imperative that the right to privacy is valued for its own sake and because it is a prerequisite for a free and democratic society. It is a principle that is sometimes lost in the jurisprudence so I will say it again. Privacy is a democratic principle – one not only experienced in the solitude of thought or expressed in the secrecy of the ballot box. In R v Dyment, [1988] 2 SCR 417 Justice Gerald La Forest said this, at pp. 427-8: “…[G]rounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”

Professor Stephen J. Schulhofer of New York University, School of Law, put the point this way in The Fourth Amendment in the Twenty-first Century: More Essential Than Ever (2012), at pp. 13-4: “…[A]s a precondition for well-developed political expression and association, privacy is intimately connected to freedom of speech. Government spying may not worry the average citizen who reads best selling books, practices a widely accepted religion and adheres to middle-of-the-road political views. But no one doubts that surveillance can have an inhibiting effect on those who are different, chilling their freedom to read what they choose, to say what they think, and to join with others who are like minded…[T]he Fourth Amendment grew out of bitter experience in the suppression of political dissent. It was designed to assure outsiders some breathing room by creating a buffer between them and the power of the state. Human rights conventions applicable throughout the world endorse the same principle, insisting that safeguards for privacy and personal security are indispensable prerequisites for individual freedom and democratic government.”

Section 8 of the Charter of Rights provides general protection of the right to privacy based upon principles that go beyond the Edwards test and are of particular significance in the context of information privacy. Justice LaForme summarized some of these principles, at paras. 100-3, that I will condense as follows:

• First, the protection afforded by s. 8 of the Charter should be interpreted broadly and purposively because the protection of privacy is a prerequisite to individual security, self-fulfillment and autonomy as well as to the maintenance of a thriving democratic society. The courts should take a generous and purposive approach when evaluating an assertion of a reasonable expectation of privacy as that is the threshold for accessing the protection under s. 8. (para. 100)

• Second, a reasonable expectation of privacy is not merely a descriptive term or something to be ascertained through a factual inquiry. Ultimately, the inquiry is a normative one and is driven by value judgments that are made from the independent perspective of the reasonable and informed person who is concerned about the long term consequences of government action for the protection of privacy. (para. 101)

• Third, the analysis has a broader dimension beyond the particular circumstances of the case. Section 8 is concerned with the degree of privacy needed to maintain a free and open society – not necessarily the degree of privacy expected by the individual or respected by the state in a given situation. The ultimate question is whether the privacy claim advanced in a particular case must be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society. (para. 102; See: R v Ward (2012), 112 O.R. (3d) 321 per Doherty J.A., at paras. 86-7)

• Fourth, it is immaterial that the privacy claim seeks to shelter illegal activity. A search that lacked legal authorization cannot be justified by after-the-fact discovery of a crime. The question must be framed in broad and neutral terms. (para. 103; See: R v Wong, [1990] 3 SCR 36 per La Forest J., at p. 50)

The search and seizure of text messages by the state thus implicates two privacy interests. First, because text messages may contain intimate and personal information, the ability of the state to review them engages a right to control access to and use of personal information. Second, the seizure of text messages by the state is an obvious intrusion on a sphere of privacy that is protected under Charter s. 8. These considerations led Justice LaForme to this conclusion about the factor of control, at paras. 133-7:

“The Crown’s position…effectively makes control a prerequisite to any claim for privacy. I say that is the case because the Crown is relying solely on the absence of control in this case, and that is the only thing that distinguishes a text message in transition (which attracts a reasonable expectation of privacy) and one that has arrived at its intended destination (which, the Crown argues, does not attract a reasonable expectation of privacy).

…[T]he Crown’s interpretation of the jurisprudence amounts to revisionism. None of [the] cases state that control is a prerequisite for a reasonable expectation of privacy. Every one reaffirms the notion that a claim for a reasonable expectation of privacy is assessed by looking to the totality of the circumstances. All emphasize that the analysis is context-specific and incorporates many factors depending on the nature of the case. The very nature of this analysis rebuts the Crown’s submission that the absence of control alone can end a reasonable expectation of privacy.

I accept that control and the ability to regulate access is part of the totality of the circumstances that must be considered. However,…while the absence of control may diminish an expectation of privacy, it does not eliminate it.”

Justice LaForme went on to note, at paras. 138-140 and 184, that the courts have recognized an informational privacy interest in cases where there was no ability to control or regulate access to the information. For example, the Supreme Court of Canada has found a privacy interest in information stored on a workplace laptop and in police occurrence reports. Any reliance on the absence of control would therefore reintroduce the discredited risk analysis into the law. Relevant normative considerations suggest that Canadians should be able to maintain a reasonable expectation of privacy in text messages generally. Marakah therefore had standing to challenge the search of Winchester’s iPhone. (See: R v Cole, [2012] 3 SCR 34; and, R v Quesnelle, [2014] 2 SCR 390)

Before concluding, let’s return to something that Justice MacPherson said that may have slipped by you. Apparently Marakah had asked Winchester to delete the text messages. Justice MacPherson interpreted the request, at para. 64, to be an indication that Marakah knew he had no ability to regulate access and no control over what Winchester did with the contents of his own phone. Irrespective of whether the contrary inference is equally compelling, that characterization of Marakah’s request displays a misunderstanding of the law and the distinction between privacy, control and secrecy.

In Dyment, Justice La Forest said, at pp. 429-30, that even though information is communicated, and can no longer be thought of as secret, “…situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.” I have described this as the restricted purpose doctrine elsewhere on this blog. Marakah’s communications with Winchester by text messages for the restricted purpose of gun trafficking did not constitute a loss of confidentiality for all purposes. Professor Schulhofer has emphasized the same point, at p. 130:

“The notion that shared information should have no Fourth Amendment protection has always been untenable, because privacy has never been equated with mere secrecy. It is something much more important: the right to control knowledge about our personal lives, the right to decide how much information gets revealed to whom and for which purposes.

Only a hermit can lay claim to complete secrecy. For anyone who wishes to inhabit the world, daily life inevitably involves personal associations and the information we exchange within them. Relationships give meaning to our lives and define a large part of who we are. To insist that information is private only when it remains completely secret is preposterous. Indeed, personal information often becomes more valuable when we share it confidentially with chosen associates who help us pursue common projects. As Judge Richard Posner puts it, ‘productive independent thinking almost always requires bouncing ideas off other people.’ Though shared, the information remains private until we relinquish control and expose it to the public.”

The opinions in Marakah present stark contrasts in the judicial approach to information privacy. The dissent of Justice LaForme stands at the high watermark of developments in this burgeoning area of Canadian law together with the opinions of Justice Rosalie Abella in R v Telus Communications Co., [2013] 2 SCR 3, Justice Thomas Cromwell in R v Spencer, [2014] 2 SCR 212 and the dissent of Justice Andromache Karakatsanis in R v Fearon, [2014] 3 SCR 621. Grounded in the essence of a democratic state, and in the physical and moral autonomy of the individual, those opinions have moved the law forward from the landmark opinion of Justice La Forest in Dyment over twenty-five years ago. The majority opinion of Justice MacPherson, however, is stuck in the rear view mirror of the digital age.

On July 29, 2016, Marakah filed a Notice of Appeal in the Supreme Court of Canada.