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The Conversation

  • December 30, 2017
  • Clayton Rice, Q.C.

On December 8, 2017, the Supreme Court of Canada released the 5-2 ruling in R v Marakah, 2017 SCC 59, that text messages sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search and seizure under s. 8 of the Charter of Rights. But first, let’s drop in at the movies.

1. Who is Harry Caul?

Harry Caul is a surveillance expert obsessed with his own privacy. He tapes the conversation of a couple walking through busy Union Square in San Francisco. Although Harry insists that he is not responsible for the content of the conversations he records, he is tormented by guilt when he realizes that the conversation he pieces together from the cacophony of background noise reveals a murder plot. The film, directed by Francis Ford Coppola, was nominated for three Academy Awards and won the Grand Prix du Festival International du Film at the 1974 Cannes Film Festival. Coppola, who also wrote the script, did not title his original screenplay Surveillance or Union Square or The Microphone. The film is The Conversation.

2. Protecting People

Seven years before The Conversation was running in the theatres, the Supreme Court of the United States released its landmark ruling in Katz v United States, 389 US 347 (1967). Katz had been convicted on a multiple count Indictment of transmitting illegal gambling wagers by telephone from Los Angeles to Miami and Boston in violation of a federal statute. The government was permitted to introduce in evidence at Katz’s trial his end of telephone conversations he made from a public phone booth that the FBI wiretapped without a warrant. The court held that, regardless of location, a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a reasonable expectation of privacy. Here is the key passage from the opinion of Justice Potter Stewart that is the second aspect of my focus in this post, at p. 351:

“Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a ‘constitutionally protected area.’ The Government has maintained with equal vigour that it was not. But this effort to decide whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’ deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

The majority opinion of Justice Stewart was specifically approved by a unanimous Supreme Court of Canada in Hunter v Southam Inc., [1984] 2 SCR 145 where Justice Brian Dickson held, at p. 159, that s. 8 of the Charter containing the constitutional protection against unreasonable search and seizure is not restricted to the protection of property or associated with the law of trespass, at p. 159: “[I]n Katz…Stewart J. delivering the majority opinion of the United States Supreme Court declared at p. 351 that ‘the Fourth Amendment protects people, not places’. Justice Stewart rejected any necessary connection between that Amendment and the notion of trespass. With respect, I believe this approach is equally appropriate in construing the protections in s. 8 of the Charter of Rights and Freedoms.”

With “conversation” and “protects people” in tow, let’s get to the ruling in Marakah.

3. Privacy in Sent Text Messages

On November 14, 2014, Nour Marakah was convicted of multiple firearm offences arising out of a gun trafficking relationship with Andrew Winchester. His convictions were dependent on incriminating text messages he sent to Winchester that the police seized from Winchester’s iPhone. He brought a pretrial motion for suppression of the text messages that was dismissed by Justice Laurence Pattillo in the Ontario Superior Court of Justice because (a) the text messages were no longer under Marakah’s control when they were received by Winchester’s iPhone and (b) Marakah therefore lacked standing because he no longer had a reasonable expectation of privacy in the text messages. His appeal from conviction was dismissed by the Ontario Court of Appeal reported as R v Marakah, 2016 ONCA 542, 338 CCC (3d) 269.

In reversing and excluding the evidence, Chief Justice Beverley McLachlin, writing for the five member majority, held that the absence of exclusive control was not determinative, at para. 41: “The cases are clear: a person does not lose control of information for the purpose of s. 8 simply because another person possesses it or can access it. Even where ‘technological reality’ deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah shared information with Mr.Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.”

The critical point is not the location or place of the search – but the subject matter of what the police seized. In this case – the conversation. Chief Justice McLachlin described it this way, at paras. 17 and 19:

“Correctly characterized, the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with Mr. Winchester. To describe text messages as part of an electronic conversation is to take a holistic view of the subject matter of the search. This properly avoids a mechanical approach that defines the subject matter in terms of physical acts, spaces, or modalities of transmission. It also reflects the technological reality of text messaging.

When a text message is searched, it is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy in the recipient’s ‘inbox’ that the police are really after; it is the electronic conversation between two or more people that law enforcement seeks to access. Where data are physically or electronically located varies from phone to phone, from service provider to service provider, or, with text messaging more broadly, from technology to technology. The s. 8 analysis must be robust to these distinctions, in harmony with the need to take a broad, purposive approach to privacy protection under s. 8 of the Charter. If ‘the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 is meant to keep pace with technological development’, then courts must recognize that SMS technology, in which messages may be said to be ‘sent’, ‘received’, and ‘transmitted’ between devices, is just one means of text messaging among many and is, from the point of view of the user, functionally identical to numerous others. ‘Technical differences inherent in new technology should not determine the scope of protection afforded to private communications’. The subject matter of the search is the conversation, not its components.”

The place of the search is thus only one of several factors to be weighed in determining whether an individual has a reasonable expectation of privacy. “Whether one views the place of an electronic conversation as a metaphorical chat room or a real physical place,” Chief Justice McLachlin wrote at para. 30, “it is clear that the place of the text message conversation does not exclude an expectation of privacy. At the end of the day, s. 8 ‘protects people, not places’.”

Control over information may therefore be a function of control over a physical object or place or, as with electronic conversations, control may arise from the choice of medium and the designated recipient. The conclusion that electronic conversations can attract a reasonable expectation of privacy does not mean that they will always attract a reasonable expectation of privacy. The answer will depend on the circumstances in each case.

4. The Dissent

Justice Michael Moldaver, having characterized the question as “about standing”, at para. 93, went on to state, at para. 98, that “[c]ontrol over the subject matter in the circumstances is a crucial factor in assessing an individual’s personal connection to it. Where an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable, and that the individual does not have standing to challenge the search.” After emphasizing, at para. 99, that “Marakah had no control whatsoever over the text message conversations”, Justice Moldaver proceeds to analyze the same point multiple times to arrive back at the same place, at para. 144, that since the police accessed the text messages on Winchester’s iPhone, “Marakah had no control over the subject matter of the search”. The argument advanced by Justice Moldaver about Winchester’s iPhone is essentially the same one the government advanced about Katz’s phone booth – that is, they were not constitutionally protected places.

Justice Moldaver then turns to what is described as practical considerations for law enforcement and the administration of justice, at paras. 183-6, suggesting that (a) the disclosure of text messages received by a complainant could be challenged by a sender who is alleged to have abused the complainant and thus exposes vulnerable complainants such as children, people with mental disabilities and the elderly (b) the increased need for warrants could strain police and judicial resources in an overburdened criminal justice system and (c) at the trial stage, these repercussions could complicate and prolong proceedings where defendants have standing to challenge searches conducted against collateral targets in large prosecutions. It is speculative reasoning that puts Charter rights up for sale in a strident tone that is better left for uproar in the House of Commons.

5. Conclusion

The majority opinion in Marakah is a reaffirmation of digital privacy principles and policy for the twenty-first century by keeping the focus where it should be – on people and their conversations – and not on the physical places where they happen. It is an opinion that maintains the position of the Supreme Court of Canada as a strong privacy court. As for the dissent, well, I’ll leave you with this. The Supreme Court of the United States decided Katz fifty years ago on December 18, 1967. The milestone prompted Professor Orin Kerr of the University of Southern California, Gould School of Law, to post this on his Twitter account: “Happy Birthday to Katz v. United States, decided 50 years ago today and confusing people ever since.”

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