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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure

Friday, December 08, 2017 @ 2:13 PM  


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Appeal by Marakah from an Ontario Court of Appeal judgment affirming his convictions for firearms offences and upholding a pre-trial application ruling in the Crown’s favour. Marakah sent text messages regarding illegal transactions in firearms. The police obtained warrants to search his home and that of his accomplice, Winchester. They seized Marakah’s BlackBerry and Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Marakah and sought to use the text messages as evidence against him. At trial, Marakah argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search and seizure. The application judge held that the warrant for Marakah’s residence was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that Marakah had no standing to argue that the text messages recovered from Winchester’s iPhone should not be admitted against him. He admitted the text messages and convicted Marakah of multiple firearms offences. The majority of the Ontario Court of Appeal agreed that Marakah could have no expectation of privacy in the text messages recovered from Winchester’s iPhone, and hence did not have standing to argue against their admissibility. The main question on appeal was whether Marakah could have had a reasonable expectation of privacy in the messages he sent to Winchester and whether he could claim s. 8 Charter protection for the text messages accessed through Winchester’s iPhone.

HELD: Appeal allowed. To claim s. 8 protection, a claimant was required to first establish a reasonable expectation of privacy in the subject matter of the search. Whether a claimant had a reasonable expectation of privacy had to be assessed with regard to the “totality of the circumstances”. In considering the totality of the circumstances, four “lines of inquiry” guided the court’s analysis: 1) What was the subject matter of the alleged search?; 2) Did the claimant have a direct interest in the subject matter?; 3) Did the claimant have a subjective expectation of privacy in the subject matter?; and 4) If so, was the claimant’s subjective expectation of privacy objectively reasonable? The subject matter of the search was to be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. The claimant would only have standing to assert his s. 8 right if the fourth question was answered by the court in the affirmative. The four-pronged inquiry established that Marakah had a reasonable expectation of privacy in the text messages recovered from Winchester’s iPhone. The subject matter of the alleged search was the electronic conversation between Marakah and Winchester. Marakah had a direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable. He therefore had standing to challenge the search. The three factors most relevant to the fourth line of inquiry in this case were: 1) the place where the search occurred; 2) the private nature of the subject matter; and 3) control over the subject matter. If the place of the search was viewed as a private electronic space accessible by only Marakah and Winchester, Marakah’s reasonable expectation of privacy was clear. If the place of the search was viewed as Mr. Winchester’s phone, this would reduce, but not negate, Marakah’s expectation of privacy. The mere fact of the electronic conversation between the two men tended to reveal personal information about Marakah’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, Marakah exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. A person did not lose control of information for the purposes of s. 8 simply because another possessed it or could access it. The risk that Winchester could have disclosed the text messages did not negate Marakah’s control over the information contained therein. It followed that Marakah had standing to challenge the search and the admission of the evidence, even though the state accessed his electronic conversation with Winchester through the latter’s iPhone. This conclusion was not displaced by policy concerns. The Court noted, however, that not every communication occurring through an electronic medium would attract a reasonable expectation of privacy and grant an accused standing to make arguments regarding s. 8 protection. Different facts could lead to different results. The Crown conceded that, if Marakah had standing, the search was unreasonable and violated his right under s. 8 of the Charter. After applying the Grant analysis, the Court concluded that the evidence of the electronic conversation should have been excluded under s. 24(2) of the Charter. The curative proviso in s. 686(1)(b)(iii) of the Criminal Code did not apply. The convictions were set aside and acquittals were entered on all charges.

R. v. Marakah, [2017] S.C.J. No. 59, Supreme Court of Canada, B. McLachlin C.J., R.S. Abella, M.J. Moldaver, A., Karakatsanis, C. Gascon, S. Côté and M. Rowe JJ. December 8, 2017. Digest No. TLD-December42017011SCC