Marakah Applied: Yup, You Still Have Privacy in Someone Else’s Phone

This post is in: November 29, 2018

Ontario Court of Appeal excludes data seized from phone belonging to confederate of accused

In R. v. Ritchie, the accused had been convicted of a number of serious charges relating to narcotics trafficking in the context of organized crime. As part of the overall investigation police had seized (incident to arrest) a cell phone belonging to Tsekouras, on which they found coded communications between him and Ritchie. Those communications provided most of the basis for two search warrants, of the accused’s credit card account information and his home. As the Court of Appeal noted, aside from the data on Tsekouras’s phone there was very little information that could have supported the warrants. At trial the accused sought quash the warrants and have the evidence excluded but was unsuccessful on both counts, the trial court holding that he had no reasonable expectation of privacy in the contents of someone else’s phone and thus had no standing to make applications under s. 8 of the Charter.

However, these earlier rulings were made prior to the 2017 release of the Supreme Court of Canada’s decision in R. v. Marakah (reported in an earlier issue of this newsletter), in which the Court held that people have a reasonable expectation of privacy in their communications with others even where those communications are seized from the other’s phone. This caused the Crown on Ritchie’s appeal to concede that: he had standing to make the claim; the warrantless search of Tsekouras’s phone had breached Ritchie’s s. 8 rights; and the information from the phone had to be excised from the Informations to Obtain (ITOs) the subsequent warrants. This left, as the only issue to be resolved, whether the data gained from the search of the phone should be excluded under s. 24(2) of the Charter.

As in Marakah, the police had committed a serious breach of Ritchie’s rights under s. 8 by examining conversations between the two men, by way of a warrantless search. In this case the breach was even more serious than the one in Marakah, where the search had been done 2 hours after the phone was seized and the police might have been acting in good faith—here, the phone was searched 6 months after it was seized, and warrants obtained 2 months after that. The Court dismissed a Crown argument that the impact on Ritchie’s privacy was minimal because the data was on a phone belonging to someone else, noting that the Supreme Court had provided, in Marakah, a “complete answer” to this: “….Mr. Marakah had a reasonable expectation that the fact of his electronic conversation with Mr. Winchester, as well as its contents, would remain private. The Charter-infringing actions of police obliterated that expectation. The impact on Mr. Marakah’s Charter-protected interest was not just substantial; it was total.”

While society’s interest in a trial on the merits was substantial, the public interest in a penal system that was “beyond reproach” was the decisive balancing factor. The evidence was ordered excluded.