When the Canadian Charter of Rights and Freedoms was enacted in 1982, the first text message was still a decade away. Nevertheless, the 12 words of Section 8 of the charter have proven to provide strong protection against warrantless access by the state to this pervasive form of communication. However, the protections afforded by the charter and Canada’s Criminal Code are not absolute — and might even seem arbitrary — as two recent cases in the Supreme Court of Canada demonstrate.

When R. v. Marakah and the companion case R. v. Jones were decided in December 2017, headlines in Canada announced that “some texts considered private, even after they’ve been sent.” While that is true, these cases also demonstrate that courts in Canada are still struggling with the implications of any privacy interests in text messages. Although the R. v. Marakah case could be seen a step forward by privacy advocates, the R. v. Jones case is a step backwards. Here is where we are following these decisions.

Individuals have greater privacy protections under the Criminal Code where the state is seeking production of future text messages recorded by a telecommunications service provider than records of past messages. Arguably, this is a step back from the trajectory of the Court’s previous decision treating text messages as an electronic conversation and, therefore, subject to the wiretap provisions of the Criminal Code. The Court was decisive in R. v. Jones that the higher burden and stronger protections that apply to wiretaps do not apply to a production order for historical text messages.

However, the Court was equally decisive that the sender of a text message may continue to have a privacy interest protected by the charter in the content of the text message after it has been sent if, among other things, the sender’s expectation of privacy is objectively reasonable. Where the Court disagreed in R. v. Marakah was whether there could be a reasonable expectation of privacy in a text message stored on the recipient’s device where the recipient was under no legal obligation to protect the privacy of that message. The majority held that in some cases that expectation could be reasonable against the state even when the recipient was under no legal restriction.

Examining the trajectory of the Supreme Court’s decisions on text messages since the seminal case of R. v. TELUS Communications Co. in 2013 offers insight into the challenges courts will likely face on this issue in the future.

The foundations for text message privacy

Section 8 of the charter protects individuals from unreasonable search and seizure by government officials. It states “[e]veryone has the right to be secure against unreasonable search or seizure.” This right is qualified by Section 1 of the charter, which provides that the right to be free from unreasonable search and seizure is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” As a general principle, this means that warrantless searches and seizures are unreasonable if an individual has a subjectively and objectively reasonable expectation of privacy.

In a landmark decision in 2013, the Supreme Court of Canada characterized text messages as a form of electronic conversation. By characterizing text messages in this way, the Court emphasized the function of text messages. R. v. TELUS Communications Co. concerned the type of warrant that was required in order to compel TELUS to provide the police with copies of any stored text messages sent or received by two TELUS customers. Unlike other providers in Canada, TELUS stores text messages for 30 days. The police had served TELUS with a general warrant for daily copies of the text messages. However, the police could use a general warrant to obtain copies of the text messages only if there were no other more specific provision of the Criminal Code that applied. TELUS argued that the provisions relating to the interception of private communications (i.e., wiretapping) applied. This mattered because the wiretap provisions are more restrictive and onerous for the police, with greater safeguards for protecting the right to privacy.

Justice Abella, writing the majority decision in R. v. TELUS Communications Co., concluded that “[d]espite technological differences, text messaging bears several hallmarks of traditional voice communication: it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication.” Although Justice Moldaver, writing the minority decision, did not characterize text messaging in the same terms, he agreed that what the police did in obtaining an order to provide copies of future text messages stored by TELUS “was tantamount to an intercept.” By contrast, Justices Cromwell and McLachlin in dissent argued that there was no interception and that the general warrant procedure was not misused. The result would be different in R. v. Jones four years later.

Privacy in sent text messages

Fast forward four years. The Supreme Court was faced again with the issue of privacy in text messages. In R. v. Marakah, the question was whether the accused retained a privacy interest in historical text messages that were sent to an accomplice and, if so, whether that privacy interest was protected from unreasonable search and seizure under Section 8 of the charter. The accused, Marakah, was charged with firearms offenses. The accused had exchanged text messages with his accomplice, Winchester. The police had obtained a warrant to search the homes of Marakah and Winchester and found incriminating messages. Ultimately the warrant for Marakah’s residence was invalidated; however, Marakah was convicted based on the incriminating text messages found on Winchester’s phone. Marakah argued that the search of Winchester’s phone and the seizure of the incriminating text messages sent by Marakah violated Marakah’s privacy rights.

The majority decision in R. v. Marakah was authored by Chief Justice McLachlin, who had dissented in R. v. TELUS Communications Co. The Court re-emphasized that what the police were after when they searched Winchester’s phone was that record of an “electronic conversation” between Marakah and Winchester. For Marakah’s privacy interest to be protected under Section 8 of the charter, it was critical that Marakah both have a subjective expectation of privacy and that this expectation of privacy was objectively reasonable. The Court accepted that Marakah had a subjective expectation of privacy in the text message conversations. However, the Court was divided on the question of whether this expectation of privacy was objectively reasonable.

The majority in R. v. Marakah concluded that the total context for the search had to be considered in every case. In this case, three factors stood out: (1) the place searched; (2) the private nature of the text message conversation; and (3) control over the content of the text messages. The majority held that the place searched was essentially a private electronic space in which Marakah and Winchester communicated. However, even if the place of the search was viewed solely as Winchester’s phone, this reduced but did not eliminate Marakah’s expectation of privacy in their personal communications. The content of the messages were private and Marakah had control over the content of the messages even if Marakah did not have control over the device storing the historical messages.

The fault line between the majority and the minority was with respect to the issue of control. Marakah may have relinquished sole control over the electronic copy of the message. However, the majority held that the issue was not about who had control over the device storing the message but rather who had control over the content of the text messages when created. The majority held that the fact that Winchester might disclose the content of the conversations did not eliminate the reasonableness of Marakah’s expectation of privacy against state intrusion. By contrast, the dissent, authored by Justice Moldaver, held that some element of control over the actual text messages (not merely the original content when created) was required for Marakah’s expectation of privacy to be objectively reasonable. Here, Winchester had complete control over the text messages and could disclose them to anyone at any time.

In R. v. Jones, the police obtained copies of the accused's text messages from TELUS. The accused, Jones, had sent the incriminating text messages to an account registered to “Kurt Gilles.” The police obtained a production order to obtain copies of past messages to or from the Kurt Gilles account. Jones argued that this was tantamount to an intercept and sought to exclude the messages on the basis that the messages were not obtained under a wiretap warrant.

The Court was more united in R. v. Jones. A key issue in R. v. Jones was whether the accused had standing to complain about the production order. The accused did not admit that he had sent the text messages to the Kurt Gilles account. The prosecution tried to trap the accused in a catch 22 — admit to sending the incriminating text messages in order to fight their admissibility — or not admit to sending the messages but lose the right to fight their admissibility. The court held that this was preposterous and that the accused could have standing without admitting to sending the messages.

The Court agreed with Jones that he had a reasonable expectation of privacy. In this case, Justice Moldaver agreed with the majority. The text messaging service provider, TELUS, was subject to the provisions of the Personal Information Protection and Electronic Documents Act, which strictly limited TELUS’s ability to disclose the text message records. Presumably this distinguished Jones’ situation from that of Marakah’s. Unlike TELUS, Winchester was not legally restricted from disclosing the messages, which influenced Justice Moldaver’s view of whether Marakah retained control. Although Jones was not the subscriber, the majority concluded that this was not necessary for Jones to have an expectation that a telecommunications service provider would keep the messages private.

Where the Court divided was on the issue of whether the production order amounted to an intercept. All of the judges except Justice Abella, who had authored the majority decision in R. v. TELUS Communications Co., concluded that “interception suggests a prospective concept of authorization relating to communications not yet in existence.” However, the production order was for historical messages. It did not operate prospectively on an ongoing basis. Justice Abella, by contrast, emphasized the fact that a text message exchange remains fundamentally a conversation. In her view, the timing of the state’s request for information should not result in a different standard for protection.

Although agreeing with the majority, Justice Rowe noted, like Justice Abella, that the majority was leaving Canadians with a very odd and illogical result, with prospective messages being subject to greater protections than historical messages.

An example is useful: At 8 a.m., police obtain an authorization pursuant to Part VI [of the Criminal Code] to intercept text messages as they are sent from A to B. Text messages sent from A to B at 9 a.m. are intercepted pursuant to this authorization. Alternatively, police at 10 a.m. obtain a production order pursuant to s. 487.014 [of the Criminal Code] for text messages sent by A to B at 9 a.m. In both instances, the police obtain the same information — the text messages sent at 9 a.m. The police, however, must meet markedly different requirements depending on which method they choose, with those under Part VI being far more stringent than those under s. 487.014. This seems to me to be highly anomalous.

What’s Next?

The “total context” test for the reasonable expectation of privacy will undoubtedly prove difficult for trial judges. An accused will almost always argue that he or she had an objectively reasonable expectation of privacy against state intrusion. On the other side, we are likely to see prosecutors look for evidence that the recipient shared prior texts with third parties or other available evidence to demonstrate that the accused could not have had either a subjective or an objective expectation of privacy. Without bright lines, it may take several years for patterns to develop.

More immediately, the result in R. v. Jones is problematic. It means essentially that police could obtain serial production orders for historical text messages in order to avoid complying with the intercept provisions. One hopes that judges are sensitive to this issue and will be on the look out for abuse.

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