Supreme Court ruling decides when text messages are private communication

Published On December 8, 2017 | By Jacob Phillips | Crime, News

Photo courtesy: Creative Commons

By: Tyson Lautenschlager

A significant ruling at the Supreme Court of Canada today said Canadians can expect the text messages they send and receive to stay private in a court of law — at least in some circumstances.

The highest court in Canada said Nour Marakah, a Toronto man who was facing firearms convictions because of text messages found on his cell phone sent to an alleged accomplice, has been acquitted.

The court said he had a reasonable expectation of privacy under Sec. 8 of the Canadian Charter of Rights and Freedoms. The section argues any property found or seized in violation of the Charter should be excluded as evidence in court.

Chief Justice Beverley McLaughlin said that while Marakah was the author of text messages that implicated evidence against him, he expected the messages to remain private and even asked the person he sent the messages to delete them several times.

In a factum written by Christine Lonsdale, a lawyer representing the Canadian Civil Liberties Association (CCLA), she wrote privacy is “essential for the well-being of the individual” and the lower courts “failed to recognize the objective reasonable expectation of privacy in text messages.”

Not every case will have this outcome, though. The court warned that whether text messages can be considered private information will depend on the specific circumstances of each case.

The director of privacy, technology and surveillance for the CCLA, Brenda McPhail, said she’s happy with the results of the ruling.

“It’s a really important question the Supreme Court was considering; whether or not a person has a reasonable expectation of privacy in a text message conversation,” she said.

“We have traditionally expected protection in private conversations. As technology changes the way those conversations happen, it’s important for the law to keep up.”

McPhail disputed the notion that criminal prosecution could be hampered due to the precedent set by this case.

“It’s important to know this is not about their ability to conduct searches, but the necessity of following the rules when they have them,” she said.

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