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Text Message Conversations and Privacy

June 19, 2020

Victim entitled to give electronic conversation to police

A problem point around text message conversations and state access to them - one which was identified by the Supreme Court as a problem point in R v Marakah and deliberately left unsettled in R v Reeves – has been addressed in the Ontario Court of Justice decision in R v Morgan, [2020] O.J. No. 2330 (no hyperlink currently available). Marakah determined that a person retains a reasonable expectation in a sent text message, and therefore that the accused in that case had standing to challenge the unlawful search of his co-conspirator’s cellphone, on the basis that viewing the electronic conversation (as opposed to searching the physical device) intruded on the accused’s privacy interest. Objecting to that conclusion, the dissenting judges had said:

[181] Under the Chief Justice’s approach, where police search a cellphone or other device for an electronic communication, any participant to that communication would have standing to challenge the lawfulness of the search. The same may be true even where a witness voluntarily shares an electronic communication with the police…

It was exactly that situation which arose in Morgan. The accused had encountered an extremely intoxicated young woman on the street: he tried to assist her in getting home, but ultimately took her to his parents’ house, where they had sexual intercourse. The next day she confronted him about this activity, on the basis that she had not and could not have consented, by means of a text message conversation (TMC). Parts of that conversation were inculpatory, and she took the devices on which it had taken place with her to the police when she eventually reported matters to them. The police downloaded that conversation from the devices: they did not seek a warrant before doing so, and despite talking to the accused beforehand did not seek his consent. The accused argued, based largely on Marakah, that downloading and relying on the text messages would violate his section 8 Charter rights.

The application judge disagreed. First, the judge concluded that the downloading of the conversation from the device was not, in itself, a search at all, and so did not raise section 8 issues. He concluded that, to use his analogy, this was not the equivalent of a victim bringing the accused’s backpack to police to be searched: it was like a victim placing the accused’s handgun in a purse to transport it to the police station, and then handing it over: “The purse, like K.L.'s phone, is merely a way of transporting the item of interest to the police. The electronic nature of this communication and its method of storage does not change the quality of this item of evidence” (para 21). The application judge also concluded that, although unique issues could arise around searches of electronic devices, the relevant considerations making those situations unique did not arise here:

22…Although cellphones are well known to be mini-computers, capable of acting as repositories of vast amounts of data and personal information, that reality is irrelevant on the facts of this case… [W]hether K.L. printed out the TMC herself, and handed it over to the police in a sheaf of paper, whether she simply copied, pasted, and emailed it to the investigator, or whether she consented to the contents of her phone being extracted, one ends up at the same place and with the same result. The fact that the police chose to take possession of the best evidence of these communications (enabling substantive proof and authentication of the transmission) should not determine the legal status of the TMC under Section 8 of the Charter.

The real issue, the judge held, was whether the examination of that conversation could be distinguished from the similar examination in Marakah. It could, the judge held, essentially on the basis that there was no impropriety against anyone in the initial obtaining of the text message conversation. In Marakah, the co-conspirator’s cellphone had been unlawfully searched. In essence, if the conversation occurred in a “virtual space”, in Marakah and other cases the police had forced their way into that space, the judge held, but that was not the case here.

Similarly, the judge held, section 8 concerned whether a person had a reasonable expectation of privacy against the state. A person would have a reasonable expectation that the state would not unilaterally be a party to a private conversation, but would have not such an expectation about the other party to the conversation, and “...the Charter is not meant to protect us from a poor choice of friends” (para 40, quoting R v Duarte). The judge concluded:

42…The Applicant effectively equates the fact of Mr. Morgan's electronic conversation with K.L. being shared with the police as being of the same character as the privacy infringement that would have occurred had the state, at its sole discretion, intruded upon the Applicant's privacy by itself creating the permanent electronic recording of his words.

Ultimately the application judge concluded that although Marakah was a “game changer”, it “does not stand for the proposition that anytime the police come into possession of a TMC, even if delivered to them by a complainant through the medium of an electronic device, they have necessarily conducted a search or seizure that requires an inquiry into standing” (para 47).

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