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Digest of the Week | Text Messages

Text messages sent and received may be protected by s. 8 of Charter of Rights and Freedoms



R. v. Marakah | 2017 SCC 59 | Supreme Court of Canada


Criminal law --- Charter of Rights and Freedoms — Unreasonable search and seizure [s. 8] — Reasonable expectation of privacy

Accused sent text messages regarding illegal transactions in firearms — Police obtained warrants to search accused's home and that of his accomplice, W — They seized accused's phone and W's phone, searched both devices, and found incriminating text messages — At trial, accused argued that text messages should not be admitted against him because they were obtained in violation of his right against unreasonable search and seizure under s. 8 of Canadian Charter of Rights and Freedoms — Application judge held that accused had no standing to argue that text messages recovered from W's phone should not be admitted against him — Text messages were admitted and accused was convicted of multiple firearms offences — Majority of Court of Appeal for Ontario agreed that accused could have no expectation of privacy in text messages recovered from W's phone, and hence did not have standing to argue against their admissibility — Accused appealed — Appeal allowed — Depending on totality of circumstances, text messages that have been sent and received may in some cases be protected under s. 8 of Charter, and, in this case, accused had standing to argue that text messages at issue enjoyed s. 8 protection — Accused had reasonable expectation of privacy in text messages recovered from W's phone — Subject matter of alleged search was electronic conversation between accused and W — Accused had direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable.
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