Gerald Chan (Stockwoods LLP)
Introduction
It’s no exaggeration to say that many individuals, particularly younger folks, now favor texting to speaking on the telephone. A telephone dialog is time consuming and limits our potential to multi-task. Textual content messaging is way extra handy, permitting us to stretch a social dialog out over the course of a 16-hour day with out taking an excessive amount of time away from our day by day tasks.
After all, the regulation inevitably lags behind expertise. Way back to 2008, 44 p.c of Canadians mentioned that SMS textual content messaging was the commonest exercise they carried out on their mobile phone apart from voice calls.[1] But the Supreme Courtroom of Canada wouldn’t handle the difficulty of textual content message privateness till practically a decade later. On December 8, 2017, the Courtroom launched two landmark judgments on this topic: R v Marakah[2] and R v Jones.[3] (Full disclosure: I used to be counsel to the British Columbia Civil Liberties Affiliation (BCCLA), which intervened in each appeals.)
What the Courtroom Held in Marakah
In Marakah, the query was whether or not a sender can retain an affordable expectation of privateness in his/her textual content messages as soon as they’re despatched to and acquired on one other individual’s machine. This was related to the query of standing. Put one other approach, if A sends a textual content message to B, and the police uncover that textual content message throughout a search of B’s telephone, does A have standing to problem the constitutionality of the search? Writing on behalf of a five-judge majority, McLachlin CJ mentioned “sure.” (Moldaver J dissented, with Côté J becoming a member of him.)
McLachlin CJ reached this conclusion by making use of the well-established “totality of the circumstances” take a look at. She did so, nevertheless, in a fashion that was delicate to context. The context right here was that of an “digital dialog.”[4] Subsequently, the standard components below the totality of the circumstances take a look at, which had been developed to cope with claims of territorial privateness, needed to be tailored. The “place of the search,” as an example, might be considered as being the personal digital house that textual content messaging creates for the 2 events to the dialog.[5] And the issue of “management” must be understood as the liberty of people to decide on how, when, and to whom they disclose their info.[6] Within the context of textual content messaging, people are selecting to reveal their personal info to the recipient of the textual content message. The truth that doing so runs the chance of the recipient disclosing that info to a 3rd social gathering doesn’t negate their cheap expectation of privateness.[7] To carry in any other case is to revive the long-discredited assumption of danger doctrine: the notion that we abandon all cheap expectation of privateness at any time when we run the chance that others may disseminate our personal info. This doctrine could be harmful of privateness within the digital world the place there’s all the time the chance that info will likely be leaked past our meant viewers.
Most significantly, McLachlin CJ thought of the personal nature of the knowledge that people usually talk over textual content messaging. This seems to have been the driving think about her evaluation. She wrote:
A spouse has no approach of figuring out that, when her husband seems to be catching up on emails, he’s the truth is conversing by textual content message with a paramour. A father doesn’t know whom or what his daughter is texting on the dinner desk. Digital conversations can permit folks to speak particulars about their actions, their relationships, and even their identities that they’d by no means divulge to the world at massive, and to get pleasure from moveable privateness in doing so.[8]
In gentle of all this, McLachlin CJ concluded that senders of textual content messages can retain an affordable expectation of privateness within the messages saved on the recipient’s machine. Subsequently, they could have standing to problem unconstitutional searches of the recipient’s machine the place these searches reveal their textual content messages.
This choice could have vital implications for a way police and regulatory authorities conduct their investigations. Whereas the information of Marakah involved SMS textual content messages, McLachlin CJ made it clear that her reasoning would apply equally to different varieties of person-to-person communications instruments, comparable to “Apple iMessage, Google Hangouts, and Blackberry Messenger.”[9] As well as, whereas McLachlin CJ mentioned at first of her opinion that the alternate of digital messages won’t all the time entice an affordable expectation of privateness,[10] she clarified what she meant on the finish of her opinion:
This isn’t to say, nevertheless, that each communication occurring by means of an digital medium will entice an affordable expectation of privateness and therefore grant an accused standing to make arguments relating to s. 8 safety. This case doesn’t concern, for instance, messages posted on social media, conversations occurring in crowded Web chat rooms, or feedback posted on on-line message boards.[11]
In different phrases, the place digital communications are being exchanged within the digital equal of the general public sq., there could also be no cheap expectation of privateness. However it’s secure to conclude that one-to-one textual content messages (whether or not exchanged by means of SMS messaging, Apple iMessaging, or another digital platform) will all the time entice an affordable expectation of privateness within the post-Marakah world.
What the Courtroom Held in Jones
The companion case of Jones[12] raised a extra technical query: the place the police are acquiring historic textual content messages from the servers of a 3rd social gathering service supplier comparable to Telus (versus the recipient’s telephone), what sort of courtroom order do they want? An unusual manufacturing order (for which the usual is the default take a look at for cheap searches and seizures below part 8 of the Constitution: cheap and possible grounds) or the extra rigorous Half VI authorization (in any other case often called a “wiretap” authorization, for which the police should additionally show “investigative necessity”)?
Within the 2013 case of R v TELUS Communications Co,[13] a plurality of the Supreme Courtroom held that the police should get hold of Half VI authorizations with the intention to purchase textual content messages from service suppliers on a potential foundation—that’s, to acquire the manufacturing of future textual content messages. Ought to the usual be any completely different for historic textual content messages? Mr. Jones argued “no.” The BCCLA (for which I used to be counsel) supported this argument. Why ought to it matter whether or not the police search judicial permission to accumulate textual content messages the day earlier than they arrive into existence, or the day after?
A majority of the Courtroom disagreed with this argument. Writing on behalf of 5 justices, Côté J defined that the excellence between historic and future communications is a significant one below Half VI of the Prison Code. The risk posed by the latter is exclusive as a result of “when geared up with subtle surveillance applied sciences, the state could also be tempted to embark on forward-looking, ‘fishing expedition[s] within the hope of uncovering proof of crime.’”[14] Subsequently, a Half VI authorization is required for the latter however not the previous.
Curiously, Rowe J wrote a separate concurring opinion by which he agreed with Côté J’s interpretation of Half VI, however expressed concern that this permits the police to “in impact sidestep the necessities of Half VI by acquiring a manufacturing order instantly after the messages are despatched.”[15] He then explicitly acknowledged that he was expressing “no settled view”[16] on whether or not the power of the police to acquire historic textual content messages with a manufacturing order (and never a Half VI authorization) was constitutional below part 8 of the Constitution. I don’t think about it is going to take lengthy for enterprising defence counsel to see if they’ll get Rowe J (or a minimum of a choose of a decrease courtroom) to reply this query.
Jones additionally raised a second, extra common challenge in regards to the litigation of part 8 Constitution claims: in looking for to determine a subjective cheap expectation of privateness (which is without doubt one of the necessities for standing below part 8), does the defence have to guide proof? Or can the defence depend on the Crown’s idea of the case? This has been a long-debated challenge that usually arises in drug possession instances. If the police discover cocaine in a house, as an example, does A should testify that he lives within the dwelling with the intention to get hold of standing to problem the search of the house? Or can A merely depend on the Crown idea that he lives there, which is why he’s being prosecuted within the first place?
Côté J’s majority opinion endorsed the latter method.[17] It is a very vital choice for the felony defence bar, who will now not should danger calling their consumer in a Constitution voir dire to determine standing. Whereas proof in a voir dire just isn’t mechanically admissible within the trial correct, an admission on the voir dire can prohibit the permissible scope of defence proof and submissions at trial.[18] It is a gamble that defence counsel will now not should ponder.
Subsequent Steps: Reeves and Mills
Marakah and Jones are two of the largest part 8 Constitution instances in a very long time. Nonetheless, they don’t reply all the urgent digital privateness questions associated to textual content communications. In actual fact, lower than one week after the Supreme Courtroom launched its judgments, the Courtroom granted go away to enchantment in two instances that can reply additional questions on textual content message privateness: R v Reeves[19]and R v Mills.[20]
Reeves would require the Courtroom to confront the thorny challenge of third-party consent. In that case, the police searched a household laptop that was co-owned by the accused and his partner. The query was whether or not his partner alone may consent to the search. The Ontario Courtroom of Attraction mentioned that she may. It could have been throughout the accused’s “cheap expectations” that his partner may need “a professional curiosity in consenting to police entry to the shared house and property.”[21] As a way to attain this conclusion, the Courtroom of Attraction needed to distinguish R v Cole,[22] by which the Supreme Courtroom rejected the doctrine of third-party consent in Canada. The Courtroom of Attraction distinguished Cole on the premise that the consenting social gathering in that case (the varsity board employer) didn’t have an “equal and overlapping privateness curiosity” within the topic of the search (the varsity board-owned laptop computer) with the accused (a schoolteacher). The college board’s privateness curiosity was within the {hardware} (the bodily machine) relatively than the software program (the informational contents of the machine).
Curiously, nevertheless, the Crown made the identical argument in Marakah to clarify why the recipient of a textual content message ought to be capable of consent to its search or seizure by the police: the sender and recipient of a textual content message have equal and overlapping privateness pursuits. However McLachlin CJ appeared to reject the argument. In para 50 of her opinion, she urged that the police might should get hold of a warrant the place the recipient of a textual content message alerts the police to its existence.[23] Reeves will give the Supreme Courtroom a possibility to make clear this still-murky space of search and seizure regulation.
Mills[24] takes the evaluation one step additional. What if the recipient of a textual content communication is an undercover police officer? Can that police officer seize the textual content communication as he’s receiving it and, by doing so, seize the communication for investigative functions? If this had been a telephone name, the undercover police officer must get hold of prior judicial authorization earlier than recording the decision. The Supreme Courtroom determined that in R v Duarte[25] practically thirty years in the past. Ought to the regulation be any completely different for a textual content communication? The Newfoundland and Labrador Courtroom of Attraction mentioned “sure.” But it surely did so on the premise that “because the sender of such communications, Mr. Mills will need to have identified that he misplaced management over any expectation of confidentiality” and “took a danger when he voluntarily communicated with somebody he didn’t know.”[26] This type of danger evaluation is much like the road of reasoning that McLachlin CJ rejected in Marakah.[27] Whether or not the Supreme Courtroom will equally reject the Newfoundland and Labrador Courtroom of Attraction’s reasoning in Mills is one thing we’ll quickly discover out.
Gerald Chan (Stockwoods LLP)
(Be taught extra by buying his newest e book Digital Evidence: A Practitioner’s Handbook by Emonds) * Use code “ROBICHAUD17” for a ten% low cost on checkout.
[1] Canadian Wi-fi Telecommunications Affiliation, “2008 Wi-fi Attitudes Research Carried out on behalf of the Canadian Wi-fi Telecommunications Affiliation” (12 September 2008) at 13, on-line: <http://www.cwta.ca/CWTASite/english/pdf/DecimaStudy_2008.pdf>.
[2] 2017 SCC 59.
[3] 2017 SCC 60.
[4] R v Marakah, supra word 2 at para 17.
[5] Ibid at para 28.
[6] Ibid at para 39.
[7] Ibid at para 40.
[8] Ibid at para 36.
[9] Ibid at para 18.
[10] Ibid at para 5.
[11] Ibid at para 55.
[12] Supra word 3.
[13] 2013 SCC 16.
[14] R v Jones, supra word 3 at para 74.
[15] Ibid at para 85 (emphasis in unique).
[16] Ibid at para 87.
[17] Ibid at para 19.
[18] Ibid at para 24.
[19] SCC File No 37676.
[20] SCC File No 37518.
[21] R v Reeves, 2017 ONCA 365 at para 62.
[22] 2012 SCC 53.
[23] R v Marakah, supra word 2 at para 50.
[24] R v Mills, 2017 NLCA 12, [2017] NJ No 55 (QL).
[25] [1990] 1 SCR 30.
[26] R v Mills, supra word 24 at para 23.
[27] R v Marakah, supra word 2 at paras 45, 68.
