In the ruling, handed down on July 8th, 2016, Justice Justin MacPherson wrote that it was reasonable for mobile users to expect their texts to be private in their own phone and on the way to the recipient, but once the message reaches that recipient, there can no longer be an expectation of privacy.
The case that brought forward this ruling concerned the illegal purchase of firearms. The conviction of the purchaser, Nour Marakah, rested mainly on evidence secured in a police raid, as well as a text message conversation between himself and dealer Andrew Winchester.
While the evidence from the raid was thrown out by Superior Court Justice Laurence Pattillo due to the fact that the items were seized without legal authorization, the text conversation on Winchester’s phone was not thrown out. Justice Pattillo argued that Marakah could not reasonably expect that his sent messages would remain private.
Marakah appealed that decision, but it was upheld by the Ontario Court of Appeal.
“The Crown’s position … is that once a person sends a message into the ether, he or she loses the requisite level of control over that message needed to challenge its subsequent acquisition by authorities from sources outside of that person’s control,” Nick Devlin, senior counsel with the Public Prosecution Service of Canada, said in an interview with VICE News.
Critics of the decision are already making their voices heard, however.
Laura Berger, acting director of the public safety program at the Canadian Civil Liberties Association, stated in April 2016: “For an increasing percentage of Canadians, especially younger people, text messages are supplanting voice telephone calls. We need to ensure that privacy protections in place [for phone conversations] are not diluted because of changes in technology.”