Expectation of Privacy and Electronic Messaging: The Supreme Court of Canada to dot the “i’s”
Antoine Guilmain and Aya Barbach, "Expectation of Privacy and Electronic Messaging: The Supreme Court of Canada to dot the “i’s”", Bulletin Fasken, June 2017.
On March 23, the Supreme Court of Canada heard a case involving privacy and electronic messaging that may potentially have significant repercussions. Specifically, the country’s highest court will decide whether a sender has a reasonable expectation of privacy in messages sent and subsequently seized on the recipient’s electronic device.
More fundamentally, this case should clarify the situation between two decisions rendered in 2016 by different Courts of Appeal, at an interval of three months, that appear to adopt opposite solutions with respect to the expectation of privacy in messages sent and received on the recipient’s telephone or social network account. The decisions are respectively R. v. Craig (« Craig« ),rendered by the British Columbia Court of Appeal on April 11, 2016, and R. v. Marakah(« Marakah« ), rendered by the Court of Appeal of Ontario on July 8, 2016.
This article reviews the facts and analyses in the two decisions, which touch on section 8 of the Canadian Charter of Rights and Freedoms (« Canadian Charter »), in order to further underscore the issues and ramifications of the looming Supreme Court decision.
Overview of facts in Craig and Marakah
In R. v. Craig, the appellant Mr. Craig, aged 22 years old, entered into contact with the then minor complainant via instant messaging on the Nexopia social network. The appellant was charged with sexual offences committed against a person under the age of 16 years. The evidence essentially consisted of text messages sent and housed on the Nexopia network. The messages were seized by the police pursuant to a judicial warrant. Mr. Craig challenged the validity of the seizure and the judicial warrant. The trial judge held that there was no legitimate reason to challenge the legality of the messages seized and disclosed because the messages were found on the complainant’s account. On appeal, the Court of Appeal for British Columbia concluded that a person could reasonably claim an expectation of privacy when sending an instant message stored on the device of a third party.
In R. v. Marakah, the appellant was accused of having committed firearms trafficking offences. In this case, the essence of the evidence was also found in the content of messages sent between the complainant and his accomplice. These messages, which explicitly described the illegal activities in question, were found and seized on the accomplice’s telephone. At trial, the Court held that the message is no longer under the control of the sender once it has reached the recipient, who is free to do what he wants with it. The Court further held that the sender does not have a reasonable expectation of privacy. This decision was confirmed by the Ontario Court of Appeal.
Summary analysis of the decision in Craig
The B.C. Court of Appeal held that the appellant enjoyed a reasonable expectation of privacy based on four criteria:
- Place of search. The Court of Appeal stated that the messages were retrieved from the Nexopia server and stored on the respective accounts of Mr. Craig and the complainant. The expectation of privacy in this case did not arise from the ownership of a profile on the said server, but instead from the content of the messages generated by the sender and found on the Nexopia server.
- Public view. The Court of Appeal noted that the messages were not accessible to the public and that the protection of the accounts by a user name and password therefore presumed a reasonable expectation of privacy.
- Messages in the hand of third parties and the sender’s expectation of confidentiality. The Court of Appeal had to rule on whether an ordinary citizen could legitimately expect a message sent online to the recipient’s account to remain confidential. The Court of Appeal reversed the trial judge’s theory regarding the criterion of loss of control or risk analysis, i.e. the theory whereby the sender loses all expectation of privacy once the recipient receives the message on the ground that the recipient may disclose the content to third parties. There is effectively a risk that the recipient will disclose the content of a message received. The Court of Appeal, however, distinguished between a recipient deciding to disclose the message content and law enforcement « intruding » to search for and analyze the private content, without the content sender having any say in the matter whatsoever.
- Message content. Finally, Mr. Craig’s written messages exposed intimate details of his lifestyle, personal choices, and private identifying information. Such private information constitutes the appellant’s « biographical core », i.e., information that is highly revealing and meaningful to his personal life. Even though the content of the private discussions was itself illegal, the appellate judge stated that this did not lessen the application of section 8 of the Canadian Charter.
Summary analysis of the decision in Marakah
Contrary to Craig, the Ontario Court of Appeal in Marakah was asked to rule on the application of the Supreme Court’s conclusions in R. v. Telus. Indeed, the appellant alleged that the conclusions in that case applied mutatis mutandis. This argument was ultimately rejected by the Court of Appeal, in particular because Telus concerned an authorization under Part VI of the Criminal Code to intercept and communicate prospective text messages found on a service provider’s network. In other words, the Supreme Court of Canada had to decide whether the police search constituted an interception of private communications within the meaning of section 183 of the Criminal Code. As a result, the Supreme Court established that the messages sent constituted private communications. This is the first reason why the Ontario Court of Appeal declined to apply Telus to Marakah. The Court of Appeal did, however, determine that Telus was not a standing case. However, if the Court of Appeal admitted that Telus applied to the facts in Marakah, it would constitute a presumption under which anyone who sends text messages to another person could rely on Telus to challenge a potential seizure of such messages.  Such an approach would therefore run contrary to the principle that each case is different and must be assessed on the totality of the circumstances, especially in matters where electronic communications come into play. To this effect, the Court of Appeal referred to Cole and Spencer.
The Court of Appeal then assessed the criteria established in R. v. Edwards to determine whether an expectation of privacy was subjectively or objectively reasonable in view of « the totality of the circumstances ». Among these criteria, the Court of Appeal concluded that the most determinative factors in the case at bar were i) the fact that the appellant neither owned nor controlled his accomplice’s telephone and ii) that there was no obligation of confidentiality between the parties. It was mainly on the basis of these elements that the Court of Appeal stated that « »control » and « access » are fundamental to our understanding of informational privacy ».
This decision can be distinguished from Craig in British Columbia in that the Ontario Court of Appeal appears to prefer the doctrine of loss of control of the message and its content by the sender and the acceptance of the risk of disclosure. The Ontario Court of Appeal justified the determinative nature of the control and access criteria by the fact that, contrary to Craig, the decision in Marakah did not consider that the messages in question included the appellant’s personal and intimate details or information that revealed the appellant’s « biographical core ». This is in fact one of the reasons why Marakah is distinguishable from Craig. The Ontario Court of Appeal emphasized the fact that Craig placed greater « weight » on the content of the text messages than on control because the B.C. Court of Appeal found that the subject matter of the dispute was connected to the accused’s « biographical core ».
Last, the Court of Appeal distinguished the facts before it from the teachings in R. v. Duarte.While in Duarte the state had surreptitiously created a permanent record of oral conversations, the issue in Marakah is instead one of written conversations using a medium over which the appellant had no control, i.e. the text message recipient’s telephone. The sender abandons all control over the message sent as soon as it is in the hands of the recipient, who may then use it at his discretion. The risk in Marakah is therefore of a different order according to the Court of Appeal.
In light of the foregoing, the Ontario Court of Appeal confirmed the trial judge’s decision and reiterated that the appellant was not entitled to a reasonable expectation of privacy.
In the end, the decisions in Craig and Marakah appear relatively similar on the facts yet have different outcomes. Note that the decision in Marakah referred to the principles set out in Craig, while affirming that the two decisions are « entirely » distinguishable from each other. The Ontario Court of Appeal, while aware of the analysis and decision of the British Columbia Court of Appeal, adopted a different legal reasoning. One appears to support the doctrine of loss of control and risk analysis (Marakah) while the other disregards it (Craig). The value attributed to the message content in each decision is also different.
We can but wait impatiently for the Supreme Court of Canada’s position on the appeal in Marakah, heard in March. In a digital age where an increasing number of text messages are sent using various technological media (cellphone, instant messaging, social networks, sharing platforms, etc.), it is crucial to know what value will be given by the country’s highest court to the messages sent and the expectation of privacy.
This decision should ultimately have several repercussions or Canadian organizations, and particularly telecommunication companies that store and transmit messages between individuals. The Supreme Court of Canada could further specify the type of mandate required and the rules enabling authorities to ask businesses to disclose messages between individuals (general or specific mandate pursuant to Part VI of the Criminal Code, etc.). It is therefore best to remain abreast of developments in this matter, in order to clearly identify and be up-to-date on any guidelines concerning the disclosure of the content of messages between individuals in a judicial context.
 R. v. Craig, 2016 BCCA 154 (PDF). See Antoine Guilmain, Dara Jospé and Michael Shortt, « Privacy, Technology, and Instant Messaging – The British Columbia Court of Appeal Sends an (Instant) Message », Canadian Privacy Law Review, Vol 13, No. 9, August 2016, pp. 81-83.
 The criteria are as follows: 1) presence at the time of the search; 2) possession or control of the property or place searched; 3) ownership of the property or place searched; 4) historical use of the property or item; 5) the ability to regulate access, including the right to admit or exclude others from the place; 6) the existence of a subjective expectation of privacy; and 7) the objective reasonableness of the expectation.
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