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privacy and the law

The Supreme Court of Canada is shown in Ottawa on Nov. 2, 2017.Sean Kilpatrick/The Canadian Press

Canadians can expect the texts they send to remain private — at least in some cases — even after the messages reach their destination, the Supreme Court declared Friday in setting aside the firearms convictions of a man whose sent messages were uncovered by police.

In a potentially significant 5-2 ruling, the high court set aside the convictions against Nour Marakah, whose messages were found by Toronto police on the mobile phone of an alleged accomplice.

The court said Marakah had a reasonable expectation of privacy concerning the messages, meaning he had a right to challenge the police search of the phone as a violation of his guarantees under the Charter of Rights and Freedoms.

In her reasons for the majority, Chief Justice Beverley McLachlin noted that Marakah was the author of the text messages introduced as evidence against him, that he expected the electronic conversation to remain private and that he asked recipient Andrew Winchester numerous times to delete the messages.

Marakah's convictions were tossed out because, the high court concluded, police should have had a judicial warrant to search Winchester's phone and that effectively excludes the messages from evidence.

However, the court cautioned that gauging the expectation of privacy depends on the facts of a case, and that the outcome might be different in other circumstances.

McLachlin said the expectation can hinge on the place of a search, even though it may not be a physical space in the digital era.

"This interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as a physical space," she wrote.

"The millions of us who text friends, family and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors."

It is difficult to think of a type of conversation or communication capable of promising more privacy than text messaging, she added.

"A wife has no way of knowing that, when her husband appears to be catching up on emails, he is in fact conversing by text message with a paramour. A father does not know whom or what his daughter is texting at the dinner table."

Marakah accepted the risk that Winchester might disclose the messages to other parties, but in doing so Marakah "did not give up control over the information" or his right to charter protection, McLachlin said.

She noted that even if an accused person has the right to argue there was a violation of their constitutional right against unreasonable search and seizure, it does not mean the argument will succeed.

In addition, not every kind of electronic communication will involve a reasonable expectation of privacy that allows an accused to make the charter argument, she wrote.

"This case does not concern, for example, messages posted on social media, conversations occurring in crowded internet chat rooms, or comments posted on online message boards."

In a dissenting opinion for the minority, Justice Michael Moldaver warned that the court's defence of privacy rights could prompt police, out of an abundance of caution, to seek a judicial warrant even in cases where a victim voluntarily hands over threatening or offensive messages he or she has received.

In turn, this could "strain police and judicial resources in an already overburdened criminal justice system," he wrote.

In her reasons, McLachlin said that if and when such concerns arise, "it will be for courts to address them" and that the protection of privacy in electronic conversations "should not be lightly denied."

In a second ruling Friday, the Supreme Court dismissed an appeal of gun and drug convictions in a case where Ottawa police had a production order to seize text messages stored on a Telus server.

In keeping with the Marakah decision, McLachlin wrote that the convicted man, Tristin Jones, was improperly denied an opportunity to challenge the production order as a violation of charter guarantees against unreasonable search and seizure.

However, McLachlin concluded the messages were lawfully seized and, as a result, his constitutional rights were not breached.

The British Columbia Civil Liberties Association intervened in the case, arguing that police should have to meet more stringent warrant requirements when seeking text messages from a telecommunications provider.

The Supreme Court decision "is an unfortunate development in the law," said Caily DiPuma, the association's acting litigation director.

The prime minister says Alberta judge Sheilah Martin is an 'extraordinary jurist.' Justin Trudeau has named Martin to the Supreme Court of Canada.

The Canadian Press

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