A New Expression for Privacy Rights in Canada?

  • August 01, 2017
  • Menachem Freedman

BCCLA raises free speech in R v Marakah

R v Marakah is a case about two arms dealers, Marakah and the serendipitously named Winchester. An unfortunate text message conversation between the two has become the next salvo in the battle for privacy rights in Canada. 

The pair had arranged an arms deal over Short Message Service (SMS). Marakah deleted the conversation and urged Winchester to do the same, but he did not. The police subsequently seized and searched both of their phones without legal authorization. The text messages on Winchester’s phone were a fundamental part of the case against Marakah, and he challenged the search under section 8 of the Charter, claiming a violation of his right to be free from illegal search and seizure.

The case reached the Ontario Court of Appeal, where the majority found that Marakah did not have standing to challenge the search, because he had no reasonable expectation of privacy in text messages on the phone of another party. However, LaForme JA disagreed with the majority and sided with a majority decision of the BC Court of Appeal in a case with similar facts, R v Pelucco. Marakah appealed to the Supreme Court of Canada (“Supreme Court”) and the case was heard last March.

In a sense, the Supreme Court is again being called to rule on the “third party doctrine.” This American legal theory states that there can be no search and seizure of information which is no longer under the control of its author. The challenge faced by Marakah and the interveners is arguing that an individual’s section 8 right to be free from search and seizure can be violated when the police search and seize the property of another individual entirely. 

What is certain is that, whatever the Supreme Court decides, it will have effects that go far beyond text messages and police seizures of phones. Rightly or wrongly, the Supreme Court’s section 8 jurisprudence on privacy has found its way into many other fora, such as labour and employment law, family law and tort. This criminal law decision could have sweeping effects on the way businesses, private individuals and judges in civil cases consider the use and abuse of private information.

This begs the question: does section 8 have broad enough shoulders to carry such a heavy burden? Should the Supreme Court’s most important decisions on the right to privacy continue to be constrained by cases with difficult facts and serious allegations of criminality, as well as an increasingly stretched definition of search and seizure? 

In a unique intervention, the British Columbia Civil Liberties Association (“BCCLA”) points to a new anchor for privacy rights in the Charter: section 2(b). Freedom of expression is only possible when people can share their thoughts, however intimate or outlandish, in private conversations. Whereas section 8 is rooted in physical and proprietary concerns of search and seizure, section 2(b)’s focus is on creating private spheres where open dialogue is possible. This is new, but fertile ground for the Supreme Court to continue to elaborate the right to privacy in an age where a person might have more intimate information on a computer server in California than in their bedroom or desk drawer.

Simply put, free expression requires a speaker and a listener, and these expressions – in whatever medium – cannot be engaged in freely if they are subject to invasion by law enforcement. In its intervention, BCCLA provides an important reminder that privacy is not only important for the abuses it prevents, but for the space it creates: a space where individuals can experiment and take risks, in the reasonable belief that the state will not intrude.

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Menachem Freedman is an associate at Moore Edgar Lyster, where he works in labour, employment, privacy and human rights law.