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SCC Explains Expectation of Privacy in Electronic Communications

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Litigation and Dispute Resolution Bulletin

The Supreme Court of Canada released judgments today in two companion cases: R. v. Tristin Jones and R. v. Nour Marakah. The decisions break new ground in the law relating to Charter standing and the right to privacy in electronic private communications. The court ruled that the requirement of a reasonable expectation of privacy to establish standing does not depend on the location of the messages, but rather on the nature of the messages themselves.


These decisions have an impact on the admissibility of electronic messages seized by police. However, the court’s decisions potentially have broader implications, particularly in the area of privacy law.


R. v. Jones emanated from a police investigation into gun trafficking, where the investigators applied for and obtained a production order to seize text messages that were stored in the Telus transmission system. The Telus account was held by Jones’ accomplice, but Jones applied to exclude his own communications with the accomplice, arguing that the seizure constituted an “interception” under Part VI of the Criminal Code and, as such, he had a presumptive right to challenge their admissibility. R. v. Marakah, a case involving alleged drug trafficking, raised a similar standing issue.  Marakah sought to exclude his own text messages seized by the police from the phone of an alleged drug trafficking accomplice.


The Crown in both cases had successfully argued at trial and at the Court of Appeal that the Appellants had no standing to challenge the admissibility of the messages, since the messages were not seized from a location under their control. and, in Jones’ case, he had not presented evidence to establish a subjective expectation of privacy. The lower courts in Jones had also accepted the Crown submission that the term “intercept” in Part VI of the Code is restricted to the acquisition of live communications between the originator and recipient and, therefore, does not apply to messages stored in the service provider’s transmission system.


Although the majority in Jones rejected the argument that a Part VI authorization was required, the Court unanimously made two significant decisions on the standing issue. First they held that an accused challenging the admissibility of private communications need not formally admit to being a participant, but “may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts”. Second, the Court rejected the Crown’s argument that any subjective expectation of privacy was objectively unreasonable, since the messages were seized from the service provider’s account belonging to another person.


In rejecting that submission the Court established that the privacy interest in the messages is in the content of the communication and not the location from which they were seized. Justice Cote, who wrote the decision, held that the fact that Jones’ own text messages were seized as a result of targeting his eventual co-accused grounded his expectation of privacy. A similar decision was reached by the majority in Marakah.


Fasken lawyers Patrick McCann and Peter Mantas, along with Ewan Lyttle of Lyttle McGarry Del Greco, represented Tristin Jones before the Supreme Court of Canada.

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