Text messages can be private once received, Supreme Court rules

The Supreme Court says Canadians have the right to expect texts to remain private - but not in all circumstances. AP Photo/Nam Y. Huh/File

Canadians sending texts can expect that those will remain private even when they land in the recipient’s inbox – but that right is not absolute.

In a significant but nuanced ruling Friday morning, the Supreme Court of Canada acquitted a Toronto man whose text messages to an alleged accomplice were used by police to secure seven convictions for trafficking illegal firearms, ruling that the man had expected the texts to remain private.

READ MORE: The Supreme Court ruling on R. v. Marakah

Chief Justice Beverley McLachlin, writing for the majority in the 5-2 decision, said that the man had the right to challenge the search of his cell by police, which he had said violated his rights under the Charter of Rights and Freedoms.

The court warned though that the right to expect texts to remain private even once they arrive to their intended destination may vary between cases.

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At the heart of the case was a challenge brought by Nour Marakah, who argued that police overstepped their bounds when they obtained texts sent from him and stored on an alleged accomplice’s phone.

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READ MORE: Cases highlight legal debate over texting privacy rights

Police relied on those texts to gain a conviction and an Ontario trial judge ruled that Marakah had no reasonable expectation of privacy once his texts arrived with their intended recipient.

The Supreme Court ruled that is not the case in this instance, and noted that Marakah had in fact asked the recipient several times to delete his messages.

“The risk that W [the recipient] could have disclosed it, if he chose to, does not negate the reasonableness of M’s [Marakah’s] expectation of privacy,” the court ruled.

The Canadian Civil Liberties Association, one of the civil rights and privacy groups that intervened in the case, had argued that the same privacy protections that apply to traditional forms of communications like letters should also apply to newer forms.

The group warned that if the Supreme Court upheld the Ontario trial judge’s ruling, it would lead to a “palpable erosion” in the privacy of Canadians.

READ MORE: Court rules on text message snooping

A second texting case was also before the courts today involving a man who was convicted based on text messages police obtained via a production order and used to lay marijuana and firearms trafficking charges.

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Police had used the production order to seize texts the convicted individual had sent in the past and which were stored on a Telus server.

His appeal of that conviction made the argument that police should have to obtain a warrant, not just a production order, to seize the texts from the service provider.

The Supreme Court dismissed that appeal.

LISTEN: 770 CHQR’s Rob Breakenridge with Michael Geist.

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