Some texts considered private, even after they've been sent: Supreme Court

December 8, 2017

An Ontario man convicted of trafficking handguns has been acquitted with a Supreme Court of Canada ruling that finds the text messages used to charge and prosecute him should have been considered private.

In a 5-2 ruling, the majority of justices found Nour Marakah had a reasonable expectation of privacy in the messages sent to his accomplice, and that the texts used as evidence to convict him violate his charter right to be protected against unreasonable search or seizure.

But Chief Justice Beverley McLachlin said that privacy expectation is not automatic, and must be assessed in "the totality of the circumstances."

In this case, Marakah had made several requests for the text messages to be deleted from his accomplice's iPhone.

In a dissenting opinion, Justice Michael Moldaver said Marakah had "no control whatsoever" over the texts sent to and received by his co-accused.

"To say that Mr. Marakah had a reasonable expectation of personal privacy in the text message conversations despite his total lack of control over them severs the interconnected relationship between privacy and control that has long formed part of our Section 8 jurisprudence," he wrote.

While this case focused on the issue of text messaging privacy as it relates to charter protections against unreasonable search and seizure, some see the ruling as a victory for privacy protections for all Canadians.

Read more: Some texts considered private, even after they've been sent: Supreme Court