A landmark ruling from the Supreme Court of Canada on a gun trafficking case today will establish when text messages are considered private, and when they are not.
The high court will deliver two judgments on separate cases where text messages were used to convict people on firearms charges. But some say the decisions will have much broader implications for all members of the Canadian public who use text messaging.
In one case, Nour Marakah claimed his Charter privacy rights were breached when police relied on texts he had sent to his co-accused, Peter Winchester. The messages obtained from Winchester’s iPhone were critical to gaining a conviction, because other incriminating evidence, including the same text messages extracted from Marakah’s Blackberry, was deemed inadmissible.
The Ontario trial judge found him guilty of seven firearms offences related to the trafficking of illegal handguns, ruling that while someone who sends a text message has a reasonable expectation of privacy, it ends when the message reaches the intended recipient.
At that point, the text message is no longer under control of the sender but is under the complete control of the recipient, the judge ruled.
In a factum outlining arguments filed with the Supreme Court, Marakah’s lawyers Mark Sandler and Wayne Cunningham said that interpretation runs counter to the broader public expectations to ensure privacy protection for digital communications.
“This is contrary to societal expectations and norms, and leads to highly problematic consequences,” it reads, citing the example of when nude or intimate images have been shared without consent of the sender.
Several civil liberty and privacy protection groups agreed, and intervened in the case.
Christine Lonsdale, a lawyer representing the Canadian Civil Liberties Association, warns that new modes of private communication deserve the same privacy protection as more traditional forms.
“In an age of increasingly pervasive use of electronic communication, every person who uses text messages to conduct a private conversation, whether or not they are accused of a crime, is impacted by the court’s analysis in this case,” she wrote in a factum.
“If the decision below stands, and there is no reasonable expectation of privacy in a text message once it is sent, it will represent palpable erosion in the zone of privacy each Canadian carries with them,” she concluded.
But the respondent, the Attorney General of Ontario, argued there should be no such expectation of privacy.
Sender can’t ‘sensibly’ expect privacy
“Having knowingly relinquished control over the messages to a recipient — who, in his or her sole discretion, can retain them, share them, copy them, or post them online — the sender cannot sensibly claim an expectation of privacy over them,” its factum reads.
Another ruling from the Supreme Court today will determine the standard police must meet when seeking a warrant to acquire text messages from a telecommunications provider when those messages have already been sent and received.
Appellant Tristin Jones was convicted based on historical text messages that were retained by the cellphone service provider, and obtained by police to lay charges related to marijuana and firearms trafficking.