Expectation Of Privacy In Text Message Conversations More Stringent In Canada Than The U.S.

Canada's highest court, the Supreme Court of Canada (the "SCC"), recently decided in R. v. Marakah,  2017 SCC 59, ("Marakah") that Canadians have a reasonable expectation of privacy in the text messages they send, even after they have been received by the recipient. With this seminal ruling, the SCC established a divergence from the United States where it has been established that text messages are not private once they have been duly delivered.

Background

The case involved an accused who had sent text messages to his accomplice regarding illegal firearm transactions. These texts were recovered from the accomplice's phone and subsequently used by the police to convict the accused of multiple firearms offences. Although the trial judge considered the search of the accomplice's phone to be unreasonable, the recovered text messages were permitted as evidence against the accused.