The Supreme Court of Canada has ruled on when and how police can read your texts.
In R. v. Marakah, the country’s highest court ruled on Friday that both the sender and the receiver of a one-to-one text conversation have a reasonable expectation of privacy, and police need a warrant in order to obtain both ends of that conversation.
“It’s a victory for digital privacy and expressive freedom,” said Gerald Chan, a lawyer for the British Columbia Civil Liberties Association, which intervened in the case.
“Canadians are relying on this medium as a way to engage in conversations,” Chan told VICE News. “We have always had a privacy right or interest in our private conversations — that’s where we are communicating some of our most private thoughts.”
The case related to what standards police have to meet when seeking warrants that could lead to cops reading your texts, and submitting them as evidence in court.
WHEN AND HOW POLICE CAN READ YOUR TEXTS?
Chan argued in court that texts are protected by Section 8 of the Charter, which states simply, “everyone has the right to be secure against unreasonable search or seizure.”
“In many cases, [this ruling] will require police to get a warrant before reviewing and seizing text messages,” Gerald Chan, British Columbia Civil Liberties Association
On Friday, the Supreme Court of Canada agreed with privacy advocates ruling that police have to respect Section 8 of the Charter when going after your texts.
“In many cases, that will require them to get a warrant before reviewing and seizing text messages from someone’s cell phone,” Chan explained.
Friday’s ruling means either the sender or the recipient of a text has a reasonable expectation of privacy that the electronic conversation between them won’t be read by police without a warrant.
“Both parties to a conversation, so long as it’s a private conversation …have a reasonable expectation to privacy,” he said.
This case extends beyond texts and also applies to one-to-one messages sent over messaging platforms like Whatsapp, Chan said. The civil liberties lawyer argues that using end to end encryption would carry a higher expectation of privacy, although the court did not explicitly say that in Friday’s ruling.
In 2012, Toronto Police started investigating Andrew Winchester’s purchase of 45 firearms over a six month period. During the investigation, a confidential informant implicated Nour Marakah, and police obtained search warrants for properties associated with the two men.
During the sweep, they arrested Winchester and seized his iPhone. When they arrived at Marakah’s residence, he grabbed his Blackberry, but an officer knocked it out of his hand and arrested him. Police conducted a forensic search of both phones and found texts that implicated both men in gun trafficking.
In a case that rested on the texts between the two, Nour Marakah was convicted of multiple firearms offenses.
At trial, Marakah argued that using the texts against him in court violated his Charter right against unreasonable search and seizure. The judge agreed that the warrant for Marakah’s home wasn’t valid and the texts in his Blackberry were inadmissible as evidence in court, but said Marakah had no standing to argue the texts from Winchester’s iPhone couldn’t be admitted.
The court of appeal agreed that Marakah had no expectation of privacy in the texts recovered from Winchester’s phone. But the Supreme Court of Canada disagreed in its decision Friday. That means Marakah’s conviction has now been overturned.