In R. v. Marakah, the Supreme Court of Canada (SCC) considered (1) whether Canadians can reasonably expect that text messages they send remain private, even after the messages have reached their destination, and (2) whether the state is free to access text messages from a recipient’s device without a warrant.
Marakah was convicted for multiple firearm offences. The convictions turned on the admissibility of text messages seized by police. The contents of private text messages between the Marakah and his accomplice, Winchester, were memorialized and intercepted on Winchester’s cell phone.
Reasons for the Decision
The SCC decided that, in some cases, text messages that have been sent and received can attract a reasonable expectation of privacy according to section 8 of the Charter of Rights and Freedoms and therefore be protected against unreasonable search or seizure.
To be accorded s. 8 protection against unreasonable search and seizure, a claimant must establish a reasonable expectation of privacy in the subject matter of the search. This expectation must be assessed in “the totality of the circumstances”.
“The totality of the circumstances” analysis considers the following four questions:
- What was the subject matter of the alleged search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter?
- If so, was the claimant’s subjective expectation of privacy objectively reasonable?
The majority held that each of the above was satisfied:
- The subject matter was the electronic conversation
The subject matter of the search was the electronic conversation between the sender and the recipient, including the existence of the conversation, the identities of the participants, the information shared, and any inferences about associates and activities that could be drawn from that information.
- Marakah had a direct interest in the electronic conversation
Marakah was a participant and author in the electronic conversations and therefore had a direct interest.
- Marakah had a subjective expectation of privacy over his text messages
It was undisputed that Marakah has a subjective expectation of privacy in the text messages he had sent.
- Marakah subjective expectation of privacy was objectively reasonable
The Court summarized the three criteria in determining the objective reasonableness of a subjective expectation of privacy: (1) the place where the search occurred, (2) the private nature of the subject matter, and (3) control over the subject matter.
First, McLachlin C.J. deemphasized the physical location of the subject matter and instead focused on the expectation of privacy surrounding the contents of electronic conversations.
Second, McLachlin C.J. purported that electronic conversations may represent a zone of privacy in which personal information is safe from state intrusion, which represents the very purpose of s. 8 of the Charter. The Majority goes so far as to opine that such privacy extends beyond one’s own mobile device and may include electronic conversations with others.
Third, McLachlin C.J. recast the classic definition of control, which was historically based on ownership and possession, in relation to the subject matter of the search (i.e. electronic messages). If a text message recipient could have disclosed a conversation, if s/he chose to, it would not negate the reasonableness of the sender’s expectation of privacy against state intrusion:
The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it.
Moldaver J., in a powerful dissent, explained that a crucial contextual factor was Mr. Marakah’s lack of control over Mr. Winchester’s phone and should have been fatal in the application of s. 8.
Significance to securities enforcement proceedings
The Ontario Securities Commission (OSC) can bring charges under sections 122 (quasi-criminal proceedings where penal sanctions may be imposed) and 127 (administrative proceedings where no penal sanctions may be imposed) of the Securities Act.
Section 8 protection under s. 122 proceedings is likely, but more nuanced under s. 127 proceedings. Application of the Charter is generally restricted to situations where the proceedings have penal consequences. Where the predominant purpose of an investigation moves from the regulatory sphere to ‘the determination of penal liability’, investigation powers become more circumscribed. For instance, in R. v. Jarvis, the SCC held that where the predominant purpose of an inquiry was the determination of penal liability, then all Charter protections relevant in the criminal context should apply.
Whereas insider trading cases in particular err on the side of penal liability, it remains unclear whether the same level of s. 8 protection – as in R. v. Marakah – is operative. The crux of many insider trading cases revolve around electronic messages to and from the impugned parties. Affording sweeping s. 8 protection to personal messages may very well represent a significant challenge to insider trading enforcement proceedings.
The author would like to thank Saam Pousht-Mashhad, articling student, for this contribution to this article.
 2017 SCC 59 [Marakah].
 Marakah at para 10.
 Marakah, at para 41; the Majority addresses policy considerations in para 46 onward, which are not addressed in this blog post.
 R. v. Jarvis,  3 SCR 757 [Jarvis].
 Jarvis, at para 98.
 See for example the discussion on circumstantial evidence in Azeff, Re, (Ont. Sec. Comm).