The Supreme Court of Canada rules to uphold privacy protections for text messages

Canada’s highest court has ruled in favour of upholding privacy exemptions in regards to text messages.

The 5-2 decision was delivered on December 7th, 2017, with justices Michael Moldaver and Suzanne Côté expressing dissenting opinions on the assertion that Nour Marakah should have been permitted a reasonable expectation of privacy when Toronto police searched his BlackBerry and used a text message conversation to convict him for the illegal transaction of firearms.

“Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under [Section 8] of the Charter,” reads an excerpt from Chief Justice Beverley McLachlin’s opinion. “Whether a claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances.”

Section 8 of the Canadian Charter of Rights and Freedoms enumerates that “Everyone has the right to be secure against unreasonable search or seizure,” and effectively states that law enforcement and other authorities need to be able to justify the search or seizure of any person or their belongings.

The SCC’s decision is important for the simple reason that it provides a framework by which individuals can expect a certain amount of privacy when it comes to their private text exchanges.

However, it’s also important to note that the SCC didn’t say that all text message conversations are protected by existing privacy precedent.

Instead, the SCC raised three specific provisions:

• “The place where the search occurred, whether it be a real physical place or a metaphorical chat room”
• “The private nature of the subject matter, that is whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature
• “And control over the subject matter.”

In his dissenting opinion, Moldaver argued that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search.”

As such, control is an important determining factor.

“Control does not need to be exclusive,” said Moldaver. “While a lack of exclusive control may diminish the strength of a reasonable expectation of privacy, it does not necessarily eliminate it.”

This case ultimately rules that individuals do get a certain amount of privacy when it comes to private text messages conversations — but only if the right confluence of factors presents itself.