Texts not private, Ontario court rules

August 11, 2016
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The texts you think you're sending in private can be used against you in court, according to a potentially precedent-setting new ruling from the Ontario Court of Appeal, which critics believe will have implications on privacy throughout the province.

While it's reasonable to expect your texts to be private along the way to their recipient—including on a service provider's database—once those messages reach their destination, that expectation of privacy evaporates, Justice Justin MacPherson wrote in the majority ruling, released on July 8.

The case in question involved Nour Marakah, the appellant, and his former co-accused, Andrew Winchester, exchanging texts regarding Marakah illegally purchasing firearms from Winchester.

Law enforcement started an investigation into Winchester in 2012, discovering that he legally purchased 45 guns over a six-month period and then illegally sold them, including to Marakah. At some point in the investigation, the police received a confidential tip regarding Marakah’s alleged involvement in Winchester’s gun purchasing scheme.

After obtaining a warrant, police raided Marakah and Winchester's residences and took their phones. The police performed a forensic search on both phones, and found texts clearly implicating Marakah and Winchester in gun trafficking, according to the ruling.

In pre-trial proceedings, Marakah argued that the items taken from him during the raid, the information taken from his phone, and the information taken from Winchester's phone should not be admissible.

The Superior Court justice presiding over the case, Laurence Pattillo, concurred that the items taken from Marakah during the raid, and the information taken from his phone, should be excluded, as they were seized without legal authorization. But he ruled that the information taken from Winchester’s phone could not be excluded, arguing that Marakah could have no reasonable expectation that his messages would remain private.

The Court of Appeal's majority decision agreed that Marakah had no standing to bring a Charter challenge before the court.

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