SCC Recognizes Expectation Of Privacy In Text Message Conversations

In the recent seminal decision R. v. Marakah, 2017 SCC 59, the Supreme Court of Canada (the "SCC") established that Canadians have a reasonable expectation of privacy in the text messages they send, even after they have been received by the recipient. The majority opinion, which led 5-2 but with heavy dissent, recognized the privacy implications of electronic messaging in a ruling that is likely to have significant impact on both police investigations and individuals' privacy rights.

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.