Nour Marakah sent some text messages to Andrew Winchester. They were discussing the purchase and sale of illegal firearms. The police had begun an investigation into several persons who had legally purchased 45 firearms over a six month period. Ultimately that investigation led to Winchester. Eventually grounds were formed, Winchester was arrested and two phones were seized from him. Both were later searched. Text messages from Marakah were found on Winchester’s phone which demonstrated that he was involved in firearm trafficking.

At trial Marakah sought to challenge the search of Winchester’s phone. The trial judge found that Marakah had no standing:

[102] … Once the message reaches its intended recipient … it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

Marakah was convicted. He appealed: 2016 ONCA 542. The appeal was heard together with R v Jones, 2016 ONCA 543 and R v Smith, 2016 ONCA 544.

In addressing the appeal, the court began with basic principles. First, s8 protects people, not places. Second, the right to challenge a search depends upon the accused “establishing that his personal privacy interests are engaged” – standing @27; R v Edwards, [1996] 1 SCR 128 @34-35. Third, not all privacy interests are protected, only a reasonable expectation of privacy is @28.

With respect to standing, the court considered the impact of R v Telus Communication Co, 2013 SCC 16. The court rejected Marakah’s position that Telus supported was determinative of the standing issue. First, in Telus the Abella J (for the majority) expressly declined to decide whether seizure of historical text messages could be done by way of warrant. Second, Telus did not address standing. In short, the assessment of standing must be determined by the “totality of the circumstances” test, Telus is not determinative @39-43.

Next the court rejected the notion that the Edwards framework was insufficient in the circumstances.

In my view, the appellant’s submission that utilizing the Edwards framework does not adequately engage normative considerations relevant to informational privacy claims is not borne out in the jurisprudence. In particular, the submission misses a fundamental point articulated in virtually all of the cases. The particular facts of each case, and not necessarily the category of privacy right claimed (as they can often overlap), will dictate which contextual factors are most and least relevant to the “totality of the circumstances” analysis. @55

Finally, the court considered whether the trial judge erred in finding that the lack of control and access were significant factors weighing against a finding of a reasonable expectation of privacy. The majority of the Court of Appeal agreed with the trial judge:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.

This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.

It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.

In this case, the application judge properly focused on the factors of control, access and lack of confidentiality. @63-66.

In the end the majority agreed with the trial judge, Marakah had no standing to raise any constitutional complaint about the search of Winchester’s cellphone. Once sent, there was no objectively reasonable expectation of privacy in text messages received by Winchester.

Marakah, along with Jones, has been appealed to the Supreme Court and is on reserve. Soon we will learn if the Supreme Court has a different view of what is objectively reasonable!