Frederic Dwayne Wilson was convicted of five drug related offences. The offences arose out of police surveillance of a rented suite in Vancouver. The police believed it to be a stash house. The trial judge ultimately agreed. After five months of investigation the police arrested Nguyen, co-accused to Wilson, as he left the suite.

A search incident to arrest of Nguyen revealed four kilograms of cocaine and a loaded handgun. This information was used to obtain a warrant to search the suite and Wilson’s home in Surrey. The fruits of those searches provided the evidence that supported the conviction of Wilson. Wilson appealed. The British Columbia Court of Appeal dismissed the appeal: 2017 BCCA 327.

On appeal Wilson argued, inter alia, that:

…the trial judge erred in ruling that Mr. Wilson did not have a reasonable expectation of privacy in the common areas of the condominium complex in which the suite was located or in the video surveillance footage of those common areas. He submits the judge therefore erred in concluding the warrant and the seizure of the video surveillance footage by the police was not a search or seizure within the meaning of s. 8 of the Charter. [@3].

The trial judge dismissed this ground (and the other ones raised). The Court of Appeal agreed with the trial judge that Wilson did not have a reasonable expectation of privacy that was infringed by the police in the common areas. Further, access to the video surveillance footage of these areas did not infringe s8.

In coming to this conclusion the Court of Appeal noted that the trial judge permitted Wilson to argue, in another ground of appeal, that the arrest of Nguyen was unlawful. Citing conflicting authorities in BC on the issue of standing (R v Brown, 2014 BCSC 1872 and R v Todd, 2015 BCSC 680) the trial judge chose the path of “least mischief” and permitted the argument. The Court of Appeal chose not to resolve this issue.

Wilson has filed an application for leave to the Supreme Court: 2018 CanLII 30063. If granted, this case presents two important opportunities for the SCC. First, it presents the Court an opportunity to address the standing issue – an issue which, since R v Marakah, 2017 SCC 59 has left many uncertain about the issue and the scope of standing in Charter litigation.

Second, it presents the Court with an opportunity to add some clarity and certainty to the law in relation to reasonable expectation of privacy in common areas. Since the Ontario Court of Appeal in R v White, 2015 ONCA 508 this issue has been debated and dissected. The law in this area is somewhat fractured. There is undoubtedly well reasoned and principle rulings that support the conclusion that reasonable expectation in common areas is far from certain and in many situations, there is no such expectation – the route to this conclusion, however, remains fluid (see for example R v Wawrykiewicz, 2017 ONSC 569; R v Barton, 2016 ONSC 8003; and R v Douale, 2016 ONSC 3912; R v Dhaliwal, 2017 BCSC 2510 – see also Mack’s Criminal Law Bulletin, issue 2017.08) and the SCC will hopefully take the opportunity to add some concrete footings to the issue.

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!