Text Message Privacy: Who Else Is Reading This?

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Volume 88 Article 4

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Text Message Privacy: Who Else Is Reading This? Text Message Privacy: Who Else Is Reading This?

Gerald Chan

Stockwoods LLP

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Chan, Gerald. "Text Message Privacy: Who Else Is Reading This?."

The Supreme Court Law Review:

Osgoode’s Annual Constitutional Cases Conference

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DOI: https://doi.org/10.60082/2563-8505.1361

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Part III

Frontiers of Privacy

Text Message Privacy:

Who Else Is Reading This?

Gerald Chan*

I. INTRODUCTION

Who talks on the phone anymore? Many of us perhaps. But we do so

far less than we did 10 to 15 years ago. And we are increasingly relying

on text conversations — whether through Short Message Service

(“SMS”) messaging, e-mail or some other “app” — as our primary mode

of communication. A 2014 Gallup poll found that Americans under the

age of 50 text more than they talk on their cell phones.

Canadians are

unlikely to be much different, and the numbers have almost certainly

moved further in the direction of texting over the last four years.

It is easy to see why texting has exploded in popularity. As a mode of

communication, texting can be more efficient, allowing us to stretch out

a series of conversations over a 16-hour work day without taking too

much time from our daily checklist. Texting is also, in many ways, the

most private form of communication. No one has any idea who we are

communicating with (or if we are communicating at all) when we sit in

the corner of a crowded room and tap away on our phones.

Of course, the law lags behind technology. Texting has been popular

for over a decade, yet the Supreme Court of Canada did not address the

issue of text message privacy until December 8, 2017, when it released

R. v. Marakah

and R. v. Jones.

In these cases, the Court clarified the

law on when the state can access our private text communications and

the scope of our protections under section 8 of the Charter of Rights and

* Partner, Stockwoods LLP. The Author and his partner, Nader R. Hasan, were counsel to

the British Columbia Civil Liberties Association, which intervened in Marakah and Jones. An

abbreviated version of this chapter previously appeared on “Robichaud’s Criminal Defence

Litigation” blog (“Text Message Privacy: Where We Are and Where We Are Going”) and The

Advocates’ Journal, Vol. 36, No. 4 (Spring 2018) (“Text messaging: The most private (and

recorded) form of communication”).

Frank Newport, “The New Era of Communication Among Americans” Gallup (November 10,

2014), online: <http://news.gallup.com/poll/179288/new-era-communication-americans.aspx>.

[2017] S.C.J. No. 59, 2017 SCC 59 (S.C.C.) [hereinafter “Marakah”].

[2017] S.C.J. No. 60, 2017 SCC 60 (S.C.C.) [hereinafter “Jones”].

70 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

Freedoms.

In Marakah, the majority held that both parties to a text

conversation have a reasonable expectation of privacy in its contents

regardless of the device the police search. In Jones, the Court clarified

that the police require a production order to obtain historical text

messages from a service provider such as TELUS, as opposed to a more

rigorous Part VI

(wiretap) authorization when obtaining text messages

on a prospective basis. These cases are summarized in this paper, along

with an analysis of unresolved issues and the future Supreme Court cases

that might address them.

II. JURISPRUDENTIAL CONTEXT

In the Charter, the right to privacy is protected by the section 8 right

to be “secure against unreasonable search or seizure”. The state conducts

a “search”, the courts have held, when it invades an area in which we

have a “reasonable expectation of privacy”.

This can occur when the

state enters our physical spaces such as our homes (territorial privacy),

inspects our bodies (bodily privacy), or obtains “personal information

which individuals in a free and democratic society would wish to

maintain and control from dissemination to the state”

(informational

privacy).

Where an individual’s reasonable expectation of privacy has

been invaded, she or he has standing to challenge the invasion as an

unreasonable search or seizure under section 8 of the Charter and seek

the remedy of exclusion of evidence under section 24(2).

Since 2009, the Supreme Court of Canada has applied these principles

to the digital world in a series of cases. In R. v. Morelli,

R. v. Cole,

R. v.

and R. v. Fearon,

the Court clarified the law on when police can

search the contents of our digital devices (both personal and, in the case

of Cole, workplace devices). In R. v. Spencer,

the Court looked at the

reasonable expectation of privacy that we have in our online activities, as

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),

1982, c. 11 [hereinafter “Charter”].

Criminal Code, R.S.C. 1985, c. C-46.

R. v. Tessling, [2004] S.C.J. No 63, 2004 SCC 67, at para. 18 (S.C.C.).

Id., at para. 25.

Id., at paras. 22-24.

[2010] S.C.J. No. 8, 2010 SCC 8 (S.C.C.).

[2012] S.C.J. No. 53, 2012 SCC 53 (S.C.C.) [hereinafter “Cole”].

[2013] S.C.J. No. 60, 2013 SCC 60 (S.C.C.) [hereinafter “Vu”].

[2014] S.C.J. No. 77, 2014 SCC 77 (S.C.C.) [hereinafter “Fearon”].

[2014] S.C.J. No. 43, 2014 SCC 43 (S.C.C.) [hereinafter “Spencer”].

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 71

revealed by Internet service providers when they disclose to police the

customer name and address information associated with a particular

Internet protocol (“IP”) address.

Until Marakah, however, the Court had not examined how section 8

of the Charter applies to text messaging as its own unique category of

information. The closest it came was in R. v. TELUS Communications

Co.,

when it interpreted the wiretapping regime in the Criminal Code

(Part VI) to apply to the “interception” of text messages and not just

phone calls. The Court reached this conclusion because Part VI speaks of

intercepting “private communications”, which can include voice and text

communications. TELUS, however, was a case of statutory construction

and not constitutional law.

Therefore, the stakes were high in Marakah and Jones. State access to

text messaging raises unique concerns because it implicates not just

privacy, but also expressive freedom. As Dickson C.J.C. wrote in

Canada (Human Rights Commission) v. Taylor, “the freedoms of

conscience, thought and belief are particularly engaged in a private

setting.”

Private communications are where we experiment with

embryonic ideas, share our intimate thoughts, and express our rawest

emotions. If the state is granted access to this category of information too

easily, that “might well smother that spontaneity — reflected in

frivolous, impetuous, sacrilegious, and defiant discourse — that liberates

daily life.”

III. MARAKAH — TEXT MESSAGES ON THE RECIPIENT’S PHONE

The precise issue in Marakah was whether an individual can retain a

reasonable expectation of privacy in his/her text messages once they are

sent to and received on another person’s device. This is a question of

standing. Put another way, if A sends a text message to B, and the police

discover that text message during a search of B’s phone, does A have

standing to challenge the constitutionality of the search? Writing on

behalf of a five-judge majority, McLachlin C.J.C. said “yes”. (Justice

Moldaver dissented, with Côté J. joining him.)

[2013] S.C.J. No. 16, 2013 SCC 16 (S.C.C.) [hereinafter “TELUS”].

[1990] S.C.J. No. 129, [1990] 3 S.C.R. 892, at para. 77 (S.C.C.).

R. v. Duarte, [1990] S.C.J. No. 2, [1990] 1 S.C.R. 30, at para. 42 (S.C.C.) [hereinafter

“Duarte”], quoting from Harlan J. dissenting in United States v. White, 401 U.S. 745 (1971).

72 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

Chief Justice McLachlin reached this conclusion by applying the

well-established “totality of the circumstances” test. The first factor of

this test is the “subject matter of the search”. This is where the Crown

and defence typically fight over the framing of the issue.

One way to view the issue in Marakah is to view the subject matter of

the search as being the recipient’s phone. In this way, Marakah is all

about the search of a device, and only the owner or user of that device

has a reasonable expectation of privacy in its contents. Chief Justice

McLachlin rejected that view.

Instead, she described the “subject matter

of the search” as “... Mr. Marakah’s ‘electronic conversation’ with

Mr. Winchester”.

She focused on text messages as a unique category of

information, and focused on the substance of the information sought

rather than the physical place in which it is found. She viewed this as a

case of informational privacy rather than territorial privacy.

Characterizing the subject matter of the search as an “electronic

conversation” set the stage for the rest of McLachlin C.J.C.’s analysis. A

conversation requires at least two parties. Each has an equal interest in

the conversation and each may have an equal expectation that it will

remain private regardless of whose phone is searched by the police. The

only question, then, is whether this expectation is reasonable.

The remainder of the factors in the “totality of the circumstances” test

address this question of “reasonableness”. Two of these factors featured

prominently in the Crown’s submissions: the “place of the search” and

the “control” exercised by the accused. These factors are critical in

“territorial privacy” cases, where the focus is on the physical space in

which items are found: e.g., if the place is a dwelling, a high expectation

of privacy is reasonable, but only for those who can control access to the

dwelling like its residents.

Had McLachlin C.J.C. accepted that

the subject of the search was the recipient’s device (a physical location),

the application of these factors would have been straightforward. But

because she characterized the subject of the search as the electronic

conversation between the sender and recipient, the application of the

factors had to be adapted to the informational privacy context.

Chief Justice McLachlin’s opinion is a textbook example of how to

conduct a context-appropriate analysis. The “place of the search”, she

wrote, could be viewed as being the private electronic space that text

Marakah, supra, note 2, at para. 16.

Id., at para. 17.

Note that this principle may be revisited in R. v. Le, [2018] S.C.C.A. No. 34 (S.C.C.)

(appeal from [2018] O.J. No. 359, 2018 ONCA 56 (Ont. C.A.)) [hereinafter “Le”].

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 73

messaging creates for the two parties to the conversation.

Meanwhile,

“control” in the informational privacy context should be understood as

the freedom of individuals to choose how, when, and to whom they

disclose their information.

In the context of text messaging, individuals

choose to disclose their private information to the recipient of the text

message. That is a necessary part of engaging in the act of

communication. While they lose “control” over the text message vis-à-

vis the recipient, that should not result in them giving up their privacy

rights in that communication vis-à-vis the rest of the world (and

especially the state).

This analysis flowed directly from the way that

McLachlin C.J.C. characterized the issue at the outset of her analysis.

Next, McLachlin C.J.C. set her sights on the most important factor in

informational privacy cases: the nature of the information sought. The

more private and revealing the information, the more likely it will attract

constitutional protection. Here, McLachlin C.J.C. could have accepted an

analogy that the Crown drew in its submissions: text messages are

similar to letters. This analogy favoured the Crown because the sender of

a letter does not retain any reasonable expectation of privacy in the letter

once it is sent and received by the recipient. Only the recipient of the

letter, in whose possession it lies, has standing to challenge an

unconstitutional search and seizure of the letter.

Such backward-looking analogies, however, often fail to do justice to

the true power of new technologies. Fortunately for the defence in

Marakah, the Supreme Court had rejected similarly inapt comparisons in

other cases. In Vu, the Court held that computers are not four-drawer

filing cabinets.

In Fearon, the Court noted that cell phones are not

briefcases.

And in Marakah, the Court effectively held (although it did

not explicitly state) that text messages are not letters. Letters take days to

be delivered to their recipient. One can meaningfully characterize a letter

as having been “sent” once it is placed in the mail. Text messages, in

Marakah, supra, note 2, at para. 28.

Id., at para. 39.

Id., at para. 40. To have held otherwise would have been to revive the long-discredited

“risk analysis”: the notion that we abandon all reasonable expectation of privacy whenever we run

the risk that others might disseminate our private information. The Supreme Court has repeatedly

(and wisely) rejected this doctrine: Marakah, id., at para. 68; Cole, supra, note 10, at para. 76. This

doctrine would be especially destructive of privacy in the digital world where there is always the risk

that information will be leaked beyond our intended audience.

Vu, supra, note 11, at para. 24.

Fearon, supra, note 12, at para. 51.

74 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

contrast, are never simply “sent”. Instead, they are part of an ongoing,

dynamic dialogue that may continue indefinitely. Their instantaneous

transmission allows for their conversational use.

Not only are text messages different from letters, but they are also

different from non-written forms of communication in that they are more

discreet. Individuals do not have to be in the same space to text message

(and almost never are) and therefore do not run the risk of being seen

together. Moreover, unlike phone conversations, text messaging allows

individuals to communicate with others in complete privacy even while

“in plain sight”. As McLachlin C.J.C. put it colourfully:

… A wife has no way of knowing that, when her husband appears to be

catching up on emails, he is in fact conversing by text message with a

paramour. A father does not know whom or what his daughter is

texting at the dinner table. Electronic conversations can allow people to

communicate details about their activities, their relationships, and even

their identities that they would never reveal to the world at large, and to

enjoy portable privacy in doing so.

In light of all this, McLachlin C.J.C. concluded that individuals can

retain a reasonable expectation of privacy in their text messages

regardless of where the messages are discovered. Therefore, a sender of a

text message may have standing to challenge an unconstitutional search

of the recipient’s device where that search revealed the sender’s text

messages. In most cases, the search will be unconstitutional unless police

first obtain a warrant (or some other type of judicial authorization).

This is as it should be. Text messaging may be, in many ways, the most

discreet form of communication; but it is also the most recorded. By virtue

of the technological medium used, text messaging creates at least two

copies of each communication exchanged: one on the sender’s phone and

one on the recipient’s phone.

As a result, nearly all of us are walking

around with transcripts of years’-worth of private communications in our

smartphones at all times. Even if we delete messages from our devices, they

Marakah, supra, note 2, at para. 36.

There are exceptions to the warrant requirement. If police conduct a lawful arrest, then

they are entitled to conduct a limited search of the arrestee’s smartphone upon arrest, including a

review of recently sent or received text messages: Fearon, supra, note 12, at para. 76. Police can

also conduct warrantless searches where there are exigent circumstances. In addition, individuals can

waive their s. 8 rights by consenting to police searches.

As illustrated in the companion appeal of Jones, supra, note 3, copies of text messages

are also sometimes retained by the telecommunications service provider.

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 75

can be recovered forensically.

This makes it especially important for the

law to step in and protect our text communications from disclosure to the

state absent compliance with the Charter.

Marakah will have significant implications for how police conduct

criminal investigations. The facts of Marakah concerned SMS text

messages; but McLachlin C.J.C. made it clear that her reasoning would

apply equally to other types of person-to-person communications tools,

such as Apple iMessage, Google Hangouts, and Blackberry Messenger.

Indeed, one can easily extend this same reasoning to e-mails. While e-

mails are sometimes used for lengthier and more formal communications

than those found in text messages, that is not always the case. For many

people, the decision of whether to send a message via SMS text

messaging or e-mail turns on nothing more than which “app” they

happen to click on first when they open their smartphone.

To be fair, McLachlin C.J.C. was careful to state that the exchange of

electronic messages will not always attract a reasonable expectation of

privacy.

But attention must be paid to the end of her opinion where she

clarified this caveat with a few examples:

… This is not to say, however, that every communication occurring

through an electronic medium will attract a reasonable expectation of

privacy and hence grant an accused standing to make arguments

regarding s. 8 protection. This case does not concern, for example,

messages posted on social media, conversations occurring in crowded

Internet chat rooms, or comments posted on online message boards.

A fair reading of these passages suggests that McLachlin C.J.C.

intended to exclude from her opinion the types of communications that

are exchanged in the electronic equivalent of the public square. One-to-

one text messages, however, should generally attract a reasonable

expectation of privacy in the post-Marakah world. The manner in which

McLachlin C.J.C. applied the totality of the circumstances factors (e.g.,

place of the search, control) would apply equally to all one-to-one

communications.

Some of the post-Marakah commentary has focused on the fact that

Mr. Marakah asked the recipient (Mr. Winchester) to delete the text

message from his phone, and tried to argue that this distinguishes the text

Vu, supra, note 11, at para. 43.

Marakah, supra, note 2, at para. 18.

Id., at para. 5.

Id., at para. 55.

76 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

messages in this case as being more private than text messages in other

cases. However, McLachlin C.J.C. relied on this fact solely to establish a

subjective expectation of privacy, which is not a “high hurdle”.

The

bulk of the section 8 work is done when determining whether the accused

has an objectively reasonable expectation of privacy. In this part of the

analysis, the fact that Mr. Marakah asked Mr. Winchester to delete the

messages played no role.

Finally, even in the case of group chats, a strong argument can be

made that all participants in the chat enjoy a reasonable expectation of

privacy. Many individuals use WhatsApp, for example, to participate in

group chats with others in defined social circles (e.g., high school

friends). Just because more than one person is involved does not mean

that the participants lose all expectation of privacy. R. v. Wong provides

the best support for this proposition.

In that case, the appellant and 10

others were charged with keeping a common gaming house for operating

a private gambling session in a hotel room. The police surreptitiously

videotaped the operation. In the majority opinion, La Forest J. held that

the accused had a reasonable expectation of privacy in the activities in

the hotel room even though more than two people were involved and

even though the public was invited to join the session. If this is true of

the activities of a hotel room, then it should equally be true of the

communications within a group chat.

IV. JONES — TEXT MESSAGES ON THE SERVER OF THE

TELECOMMUNICATIONS PROVIDER

The companion case of Jones raised a more technical question: where

the police are obtaining historical text messages from the servers of a

third party service provider such as TELUS (as opposed to the recipient’s

phone), what type of court order do they need? An ordinary production

order (for which the standard is the default test for reasonableness under

section 8 of the Charter: reasonable and probable grounds) or the more

rigorous Part VI authorization (otherwise known as a “wiretap”

authorization, for which the police must also demonstrate “investigative

necessity”)?

In the 2013 case of TELUS, a plurality of the Supreme Court held that

the police must obtain Part VI authorizations in order to acquire text

Id., at para. 23.

[1990] S.C.J. No. 118, [1990] 3 S.C.R. 36 (S.C.C.).

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 77

messages from service providers on a prospective basis — that is, to

obtain the production of future text messages. Should the standard be any

different for historical text messages? Mr. Jones argued, “no”.

Why

should it matter whether the police seek judicial permission to acquire

text messages the day before they come into existence, or the day after?

A majority of the Court disagreed with this argument. Writing on

behalf of five justices, Côté J. explained that the distinction between

historical and future communications is a meaningful one under Part VI

of the Criminal Code. The threat posed by the latter is unique because

“when equipped with sophisticated surveillance technologies, the state

may be tempted to embark on forward-looking, ‘fishing expedition[s] in

the hope of uncovering evidence of crime’”.

Therefore, a Part VI

authorization is required for the latter but not the former.

Interestingly, Rowe J. wrote a separate concurring opinion in which

he agreed with Côté J.’s interpretation of Part VI, but expressed concern

that this enables the police to “in effect sidestep the requirements of Part

VI by obtaining a production order immediately after the messages are

sent.”

He then explicitly stated that he was expressing “no settled view”

on whether the ability of the police to obtain historical text messages

with a production order (and not a Part VI authorization) is constitutional

under section 8 of the Charter. It may not take long for enterprising

defence counsel to see if they can get Rowe J. (or at least a judge of a

lower court) to answer this question. Jones concerned the proper

interpretation of Part VI of the Criminal Code, and not its

constitutionality.

Jones also raised a second, more general issue concerning the

litigation of section 8 Charter claims: in seeking to establish a subjective

reasonable expectation of privacy (which is one of the requirements for

standing under section 8), does the defence have to lead evidence? Or

can the defence rely on the Crown’s theory of the case? This has been a

long-debated issue that often arises in drug possession cases. If the police

find cocaine in a home, for instance, does A have to testify that he lives

in the home in order to obtain standing to challenge the search of the

home? Or can A simply rely on the Crown’s theory that he lives there,

which is why he is being prosecuted in the first place?

The British Columbia Civil Liberties Association, for which the author was counsel,

supported this position.

Jones, supra, note 3, at para. 74.

Id., at para. 85 (emphasis in original).

78 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

Justice Côté’s majority opinion endorsed the latter approach.

This is

a significant decision for the criminal defence bar, who will no longer

have to risk calling their client in a Charter voir dire to establish

standing. While evidence in a voir dire is not automatically admissible in

the trial proper, an admission at the voir dire can restrict the permissible

scope of defence evidence and submissions at trial.

This is a gamble

that defence counsel will no longer have to contemplate.

V. NEXT STEPS: REEVES AND MILLS

Marakah and Jones are two of the biggest section 8 Charter cases in a

long time. Nonetheless, they do not answer all of the pressing digital

privacy questions related to text communications. Less than one week

after the Supreme Court released its judgments, the Court granted leave

to appeal in two cases that will answer further questions about text

message privacy and section 8 in general: R. v. Reeves

and R. v. Mills.

1. Reeves — Who Can Consent?

Reeves will require the Court to confront the thorny issue of third

party consent, last dealt with by the Supreme Court in Cole. Consenting

to a police search is the equivalent of waiving one’s right to be secure

against unreasonable search and seizure. In order to be valid, it must be

voluntary and informed. Thus, in Cole, the Court held that the School

Board, which owned the laptop used by the accused school teacher, could

not validly consent to a police search of the laptop’s contents. Only the

school teacher, as the user of the laptop and therefore the one with an

expectation of privacy in its contents, could validly consent to a search.

The School Board was a “third party”. The Court emphatically rejected

the American “third party consent” doctrine in Canada.

In Reeves, the police seized a family computer that was co-owned by

the accused and his spouse. The question was whether his spouse alone

Id., at para. 19.

Id., at para. 24.

[2017] S.C.C.A. No. 275 (S.C.C.). The appeal was heard on May 17, 2018 and judgment

was reserved.

[2017] S.C.C.A. No. 125 (S.C.C.). The appeal was heard on May 25, 2018 and judgment

was reserved. The author was counsel to the Criminal Lawyers’ Association with Annamaria

Enenajor.

Cole, supra, note 10, at paras. 75-79.

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 79

could consent to the seizure. The Crown sought to distinguish Cole on

the basis that the consenting party in that case (the School Board

employer) did not have an “equal and overlapping privacy interest” in

the subject of the search (the School Board-owned laptop) with the

accused (a school teacher). The School Board’s privacy interest was in

the hardware (the physical device) rather than the software (the

informational contents of the device). By contrast, so the argument went,

the spouse’s privacy interests and the accused’s privacy interests in

Reeves were coterminous.

The Ontario Court of Appeal held that the spouse’s consent was valid,

but purported to do so on a different basis from that advanced by the

Crown. Rather than decide whether one party can waive the constitutional

rights of another, the Court re-defined the scope of the accused’s

reasonable expectation of privacy and therefore his constitutional right. It

would have been within the accused’s “reasonable expectations” that his

spouse might have “a legitimate interest in consenting to police access to

the shared space and property.”

The Supreme Court heard the appeal in Reeves on May 17, 2018 and

reserved judgment. How it decides the issue could have implications not

just for police searches of shared computers, but also for searches of text

messages. In Marakah, the Crown repeatedly raised this problem scenario:

what happens when someone receives a threatening text message and

wants to report it to the police? Can the recipient of that text consent to its

seizure by the police? One way to answer this question would have been to

adopt the line of reasoning advanced by the Crown in Reeves. Both the

sender and recipient of the text message have equal and overlapping

privacy interests in the electronic conversation; therefore, either party

alone can validly consent. Neither the sender nor the recipient is a “third

party”, so the argument goes. Rather, they are both “first parties”.

This argument was made in Marakah but McLachlin C.J.C. did not

accept it. Neither did she explicitly reject it. Rather, she merely observed

that where an individual receives a threatening text message and alerts

the police to its existence, the police can comply with section 8 by

obtaining a warrant.

Of course, a warrant would only be necessary

where there is no valid consent.

R. v. Reeves, [2017] O.J. No. 3038, 2017 ONCA 365, at para. 62 (S.C.C.).

Indeed, the Criminal Lawyers’ Association advanced this position at the Supreme Court

in Marakah, supra, note 2.

Id., at para. 50. This argument was made by the British Columbia Civil Liberties

Association, for which the author was counsel.

80 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

Whether Marakah will be interpreted as having rejected the notion

that the recipient of a text message can unilaterally consent to its

seizure by the police may be clarified when the Court decides Reeves.

Should the Court conduct a full-scale analysis of the law of consent,

one hopes that it will keep the following stages of the section 8

analysis distinct:

1. Is there state action? The Charter applies to state action. Where the

state actor is merely a passive recipient of information, such as in the

case of a victim who reports a threatening text message to the police,

it is questionable whether the Charter applies.

The situation would

be different, however, where the victim chooses not to report the

threat but the police discover it through some other means, and then

attempt to seize the text message from the victim. In the latter

scenario, the state is not merely a passive recipient of information

but is actively seeking it out. Therefore, the Charter should apply.

2. Does the state action invade a reasonable expectation of privacy? If

there is state action, the next question is whether that state action

invades a reasonable expectation of privacy such that there is a

search or seizure within the meaning of section 8 of the Charter. The

test for answering this question is the totality of the circumstances

test established in R. v. Edwards

and adapted to the informational

privacy context in Spencer.

3. Who can consent to the privacy invasion? It is only after the first

two questions are answered that the Court should move onto this

third question. If there is state action so as to engage the Charter,

and that state action invades a reasonable expectation of privacy,

then section 8 of the Charter is engaged — and the individual

whose privacy is invaded has the right to waive his or her section 8

rights by consenting to a police search. It is difficult to see how

another party, however, can waive these rights on that individual’s

behalf — even if the two parties have “equal and overlapping”

privacy interests.

See Doherty J.A.’s analysis in R. v. Orlandis-Habsburgo, [2017] O.J. No. 4143, 2017

ONCA 649, at para. 34 (Ont. C.A.).

[1996] S.C.J. No. 11, [1996] 1 S.C.R. 128 (S.C.C.). Note that this test may be revisited in

Le, supra, note 19.

Spencer, supra, note 13, at paras. 17-21.

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 81

2. Mills — What About Undercover Officers?

A different but related issue is raised by Mills. What if the recipient of a

text message is an undercover police officer? Can that police officer capture

the text message as he is receiving it and, by doing so, seize the

communication for investigative purposes? If this were a phone call, the

undercover police officer would have to obtain prior judicial authorization

before recording the call. The Supreme Court decided that in Duarte nearly

30 years ago.

Should the law be any different for a text communication?

The Newfoundland and Labrador Court of Appeal answered “yes”. It

held that individuals have no reasonable expectation of privacy in

messages sent to an undercover officer. But it did so on the basis that “as

the sender of such communications, Mr. Mills must have known that he

lost control over any expectation of confidentiality” and “took a risk when

he voluntarily communicated with someone he did not know”.

This sort

of risk analysis is similar to the line of reasoning that McLachlin C.J.C.

rejected in Marakah.

Other lower court cases have reached the same

conclusion applying the same, now-discredited reasoning.

These cases

should have little currency in the post-Marakah world.

The only fact that separates the text communications in Mills from

those in Marakah is the fact that Mr. Mills had never physically met the

undercover officer with whom he was communicating. In that sense, the

recipient of the text messages was a “stranger”. This should not, however,

negate a reasonable expectation of privacy. One can imagine any number

of intensely private electronic conversations that individuals have with

those whom they have never met in person. This happens every day with

online dating. It happens when Canadians seek medical advice from an

online doctor.

It happens every time a prospective client sends an e-mail

to a lawyer seeking legal assistance. It would be strange if these electronic

communications did not attract a reasonable expectation of privacy simply

because the parties had never met in person.

Supra, note 16.

R. v. Mills, [2017] N.J. No. 55, 2017 NLCA 12, at para. 23 (N.L.C.A.).

Marakah, supra, note 2, at paras. 45, 68.

R. v. Allen, [2017] O.J. No. 4239, 2017 ONSC 1712, at para. 46 (Ont. S.C.J.); R. v. Ghotra,

[2015] O.J. No. 7253, at para. 125 (Ont. S.C.J.); R. v. Merritt, [2017] O.J. No. 6928, 2017 ONSC 1648, at

para. 46 (Ont. S.C.J.). See contra, R. v. Kwok, [2008] O.J. No. 2414, at paras. 19, 22 (Ont. C.J.).

CBC News, “Online doctor consultations take off in Canada” (July 12, 2017), online:

<https://www.cbc.ca/news/health/virtual-medical-consults-1.4200397>.

See Steven Penney, “Consent Searches for Electronic Text Communications: Escaping the Zero-

Sum Trap” (May 8, 2018), online: SSRN <https://ssrn.com/abstract=>, at 25-26 [hereinafter “Penney”].

82 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

TELUS provides another important reference point for the issue in

Mills. In TELUS, the plurality held that police have to obtain judicial

authorization (under Part VI) to acquire copies of text messages from a

telecommunications provider on a prospective basis. The only difference

between that technique and what the police did in Mills is that, in the case

of the latter, the police cut out the middleman. Rather than going through a

telecommunications provider, the police acquired copies of text messages

by virtue of being a party to the conversation itself. In both cases, the

police engaged in communications surveillance. The distinction is simply

that of third party surveillance (TELUS) versus participant surveillance

(Mills). Duarte tells us that is a distinction without a difference when it

comes to the applicability of section 8 of the Charter.

If the Supreme Court overturns the Court of Appeal’s reasoning in

Mills, as it should, police will generally need to obtain judicial

authorization before exchanging and recording text messages with an

investigative target. The applicable provision would be section 184.2(1)

in Part VI of the Criminal Code. This provision was enacted after the

Court decided Duarte in 1990. It applies when the police seek to

“intercept” a “private communication” — even when the officer doing

the intercepting is a participant to the communication.

Section 183 of the Criminal Code defines “intercept” broadly to

include the acts of “listen[ing] to, record[ing] or acquir[ing] a

communication or acquir[ing] the substance, meaning or purport

thereof”. It would therefore capture the act of an undercover officer

participating in and recording a text communication with the

investigative target. And in TELUS, the Supreme Court unanimously held

that text messages are “private communications”.

To apply Part VI in this manner should not unduly hamper the ability

of the police to combat crimes such as child luring. It’s true that police

would not be able to use private text communications to develop

reasonable and probable grounds; they would need those grounds at the

outset before they engage in any private text communications. But this

would not prevent the police from developing the requisite grounds in a

public chatroom. Electronic communications in public chatrooms are

Duarte, supra, note 16, at para. 28. Parliament has since recognized that we have a

stronger expectation of privacy against third party surveillance. Thus, investigative necessity is an

added requirement for third party interceptions under the Criminal Code, s. 186, but is not a

requirement for one-party consent authorizations under s. 184.2. See Penney, id., at 35.

Supra, note 14, at para. 12, per Abella J., at para. 67, per Moldaver J., and at para. 135,

per Cromwell J.

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 83

arguably not private communications under Part VI, nor would they attract

the protections of section 8 of the Charter. Indeed, McLachlin C.J.C.

referred specifically to messages exchanged in “crowded Internet chat

rooms” as one type of electronic communication that may fall outside the

scope of Marakah. Therefore, police would be free to exchange messages

in this environment without any grounds. They would only need the grounds

to obtain judicial authorization (under Criminal Code, section 184.2) when

they choose to move the communication from a public chatroom into a

private, one-to-one context. Many child luring investigations proceed in

exactly this manner.

VI. BEYOND THE CRIMINAL LAW

Marakah’s ramifications will not be limited to the criminal law. Its

impacts will likely be felt in at least two other areas: regulatory

investigations and the development of the tort of intrusion upon

seclusion.

Regulatory investigations will be affected because the Charter applies

to all government entities, including both police conducting criminal

investigations and regulatory bodies conducting regulatory investigations.

Of course, the way in which the Charter applies may differ in the

regulatory context as compared to the criminal context. In a number of

cases in the early- to mid-90s, the Supreme Court of Canada relaxed the

ordinary Hunter v. Southam standards for a reasonable search and seizure

under section 8 (“prior judicial authorization” and “reasonable and

probable grounds”) in the regulatory context.

In each of these cases,

however, context was a proxy for privacy. Inspections of business

records did not have to meet the ordinary standards of section 8 because

they engaged a lower expectation of privacy.

But as Wilson J. wrote in

R. v. Legare, [2009] S.C.J. No. 56, [2009] 3 S.C.R. 551, at para. 8 (S.C.C.); R. v. Thain,

[2009] O.J. No. 1022, 2009 ONCA 223, at para. 2 (Ont. C.A.); R. v. Pengelley, [2010] O.J.

No. 4174, 2010 ONSC 5488, at para. 2 (Ont. S.C.J.); R. v. Ghotra, [2016] O.J. No. 1688, 2016

ONSC 5675, at para. 51 (Ont. S.C.J.).

[1984] S.C.J. No. 36, [1984] 2 S.C.R. 145 (S.C.C.).

See, for example, Thomson Newspapers Ltd. v. Canada (Director of Investigation and

Research, Restrictive Trade Practices Commission), [1990] S.C.J. No. 23, [1990] 1 S.C.R. 425

(S.C.C.); British Columbia (Securities Commission) v. Branch, [1995] S.C.J. No. 32, [1995] 2

S.C.R. 3 (S.C.C.). See also Cole, supra, note 10, at paras. 70-71, wherein Fish J. referred to a

number of cases in the early 2000s, including R. v. Jarvis, [2002] S.C.J. No. 76, 2002 SCC 73

(S.C.C.), and characterized them as follows: “... In each instance, given the regulated nature of the

documents in question, the individual claiming the protection of s. 8 did not have a reasonable

expectation of preventing or controlling the further dissemination of his or her information to the law

84 SUPREME COURT LAW REVIEW (2019) 88 S.C.L.R. (2d)

R. v. McKinlay Transport, “[t]he greater the intrusion into the privacy

interests of an individual, the more likely it will be that safeguards akin

to those in Hunter will be required.”

Therefore, in the subsequent case

of Baron v. Canada, the Court held that where the state seeks to do

something as intrusive as searching a private residence, the state must

obtain prior judicial authorization even though the search is conducted

for a regulatory (and not criminal) purpose.

Following this reasoning, where a regulatory body seeks access to

private text communications, which can reveal our most intimate

thoughts and feelings, it may be argued that section 8 of the Charter

should apply with close to full force. In most cases, this will require the

regulatory body to obtain prior judicial authorization on the basis of

“reasonable grounds” before searching or seizing the text communications

regardless of whose device is targeted.

Marakah may also affect the development of the tort of intrusion

upon seclusion. The tort is made out where (i) the defendant’s conduct is

intentional (or reckless); (ii) the defendant invades, “without lawful

justification”, the plaintiff’s private areas or concerns; and (iii) “a

reasonable person would regard the invasion as highly offensive causing

distress, humiliation, or anguish.”

In establishing this tort, the Ontario Court of Appeal cited the right to

privacy in section 8 of the Charter and the need for the common law to

evolve in accordance with Charter values.

It follows that the courts

should also develop the tort in accordance with section 8 case law —

including, most recently, Marakah. Accordingly, where a business

enforcement branch of the state.” Each of these cases involved documents created and maintained in

a highly regulatory environment. They did not involve something as inherently private as private

communications.

[1990] S.C.J. No. 25, [1990] 1 S.C.R. 627, at 649 (S.C.C.).

[1993] S.C.J. No. 6, [1993] 1 S.C.R. 416, at paras. 37-40 (S.C.C.). See, however, Law

Society of Alberta v. Sidhu, [2017] A.J. No. 691, 2017 ABCA 224 (Alta. C.A.). In Sidhu, the Law

Society investigator requested that the Appellant produce access to records related to his desktop

computers, laptops, iPads, tablets, cellular telephones, etc. The Alberta Court of Appeal held that the

Appellant had a lower expectation of privacy in the contents of his devices because he was a

regulated legal professional — even though searches of digital devices are ordinarily considered

highly invasive. The Court wrote that (at para. 20) “[w]ith the regulatory context comes an

attenuated expectation of privacy because there is an awareness and acceptance that the regulator

will be involved in the life and practice of that field”. This applies to information stored on digital

devices even though such information may engage details related to the regulated individual’s

personal life because “[t]he power of investigation in professional misconduct extends to a

professional’s personal life that reflects on their integrity” (at para. 23).

Jones v. Tsige, [2012] O.J. No. 148, 2012 ONCA 32, at para. 71 (Ont. C.A.).

Id., at para. 46.

(2019) 88 S.C.L.R. (2d) TEXT MESSAGE PRIVACY 85

intentionally or recklessly accesses private text communications

(including e-mail) without lawful justification, it may find itself on the

receiving end of an intrusion upon seclusion claim. And where that claim

is in the form of a class proceeding,

the class may include not just the

employees or accountholders whose text communications were accessed,

but all those with whom they were communicating. This could

significantly enlarge the class and therefore the liability that a defendant

may face.

Even where a business does not intentionally or recklessly access

private text communications, but merely stores them in a manner making

them vulnerable to hackers, that may be the subject of an intrusion upon

seclusion claim. In the recent case of Agnew-Americano v. Equifax

Canada Inc., the Court held that it was neither “frivolous” nor “fanciful”

to base an intrusion upon seclusion claim on the mere creation of risk of

allowing hackers access to unauthorized information.

VII. CONCLUSION

Texting is paradoxically the most discreet and most recorded form of

communication. Like many activities we now engage in with our

smartphones, we are addicted to the convenience, recognize the risks of

our information leaking out to the public, and expect everyone to act

responsibly to prevent those leaks — all at the same time. The law

should develop in accordance with these evolving social norms. While

one can criticize the Court for not going far enough in Jones, we are

fortunate to have a Supreme Court that has (for the most part) led with

wisdom in this area. As Côté J. put it in the companion case of Jones, “...

Canadians are not required to become digital recluses in order to

maintain some semblance of privacy in their lives.”

One hopes that the

Court will continue this trend in the upcoming cases of Reeves and Mills.

See, e.g., Bennett v. Lenovo (Canada) Inc., [2017] O.J. No. 784, 2017 ONSC 1082, at

paras. 17-23 (Ont. S.C.J.).

[2018] O.J. No. 361, 2018 ONSC 275, at paras. 138-163 (Ont. S.C.J.).

The precedential

value of this decision may be limited because it was merely a “carriage” ruling in a class proceeding.

Jones, supra, note 3, at para. 45.