The texts you think you're sending in private can be used against you in court, according to a potentially precedent-setting new ruling from the Ontario Court of Appeal, which critics believe will have implications on privacy throughout the province.
While it's reasonable to expect your texts to be private along the way to their recipient—including on a service provider's database—once those messages reach their destination, that expectation of privacy evaporates, Justice Justin MacPherson wrote in the majority ruling, released on July 8.
The case in question involved Nour Marakah, the appellant, and his former co-accused, Andrew Winchester, exchanging texts regarding Marakah illegally purchasing firearms from Winchester.
Law enforcement started an investigation into Winchester in 2012, discovering that he legally purchased 45 guns over a six-month period and then illegally sold them, including to Marakah. At some point in the investigation, the police received a confidential tip regarding Marakah's alleged involvement in Winchester's gun purchasing scheme.
After obtaining a warrant, police raided Marakah and Winchester's residences and took their phones. The police performed a forensic search on both phones, and found texts clearly implicating Marakah and Winchester in gun trafficking, according to the ruling.
In pre-trial proceedings, Marakah argued that the items taken from him during the raid, the information taken from his phone, and the information taken from Winchester's phone should not be admissible.
The Superior Court justice presiding over the case, Laurence Pattillo, concurred that the items taken from Marakah during the raid, and the information taken from his phone, should be excluded, as they were seized without legal authorization. But he ruled that the information taken from Winchester's phone could not be excluded, arguing that Marakah could have no reasonable expectation that his messages would remain private.
The Court of Appeal's majority decision agreed that Marakah had no standing to bring a Charter challenge before the court.
It was a win for the government. "The Crown's position … is that once a person sends a message into the ether, he or she loses the requisite level of control over that message needed to challenge its subsequent acquisition by authorities from sources outside of that person's control," Nick Devlin, senior counsel with the Public Prosecution Service of Canada, told VICE News.
Devlin added, "that loss of control is why we teach our children to be careful what they say and send over electronic messaging, because it is not really private."
But Susan Chapman, representing the Criminal Lawyers Association as interveners supporting Marakah's position,
criticized the decision
, saying "if you and I are both suspected of drug trafficking, they can just grab your phone and get the text messages I sent you and not concern themselves with a warrant and use those against me."
In April, Laura Berger, the acting director of the public safety program at the Canadian Civil Liberties Association, offered a similar view, noting that, "For an increasing percentage of Canadians, especially younger people, text messages are supplanting voice telephone calls. We need to ensure that privacy protections in place [for phone conversations] are not diluted because of changes in technology."
This decision contravenes one made by the British Columbia Court of Appeal in 2015. In that case, judges determined that the accused, who attempted to sell cocaine to someone over text who had their phone seized by police, had their privacy breached, as it would be reasonable for them to think their text messages would remain private with the recipient.
This was only the second time that the use of text messages on another person's phone in a case was brought before an appellate court in Canada.
"The issue raised in this case is a relatively new one that has come to the fore with the rise of electronic messaging," Devlin says, adding, "the application of established legal principles on privacy, and the ability of an individual accused to challenge searches or seizures outside of their sphere of control, is an issue appellate courts are just now addressing."
The issue in question revolves around how text messages should be classified as a form of communication.
The majority ruling holds that text messages are like emails or letters, and as such are much easier to obtain for use in court.
Judge H.S. LaForme, the dissenting opinion in the Marakah case, disagreed, stating that "a typical exchange of text messages is a private communication between two people. It is essentially a modern version of a conversation and can contain as much private information as an oral conversation."
This means a wiretap would be needed to use the messages in court, LaForme argued.
In a written argument filed for the court, the provincial crown, Randy Schwartz, said classifying texts as phone calls "would dramatically and illogically impact wiretap law" and have "significant, practical negative effects by unduly hampering the ability of police to obtain highly relevant text messages."
LaForme said police searching Winchester's phone infringed on Marakah's charter rights to being secure against unreasonable search or seizure, and thereby can't be allowed to stand in order to avoid creating a dangerous precedent.
This dissent allows Marakah to appeal the case to the Supreme Court, which Devlin says will likely happen in 2017. This is the first time the Supreme Court will see a case like this one, as the Crown did not appeal the 2015 ruling in British Columbia.
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