APPEAL ALLOWED

R. v. Marakah, 2017 SCC 59 – Constitutional law – Charter of Rights – Enforcement

APPEAL DISMISSED

R. v. Jones, 2017 SCC 60 – Constitutional law – Charter of Rights – Enforcement


APPEAL ALLOWED

R. v. Marakah, 2017 SCC 59 – Constitutional law – Charter of Rights – Enforcement

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 542) affirming the accused’s convictions for firearms offences and the pre-trial application ruling (2016 OJ No. 3738 (QL)).

M sent text messages to an accomplice, W, regarding illegal transactions in firearms. The police obtained warrants to search his home and that of W. They seized M’s BlackBerry and W’s iPhone, searched both devices, and found incriminating text messages. They charged M and sought to use the text messages as evidence against him. At trial, M argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charterright against unreasonable search or seizure. The application judge held that the warrant for M’s home was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that M had no standing to argue that the text messages recovered from W’s iPhone should not be admitted against M.The judge admitted the text messages and convicted M of multiple firearms offences. A majority of the Court of Appeal agreed that M could have no expectation of privacy in the text messages recovered from W’s iPhone, and hence did not have standing to argue against their admissibility.

Held (5-2): The appeal should be allowed, the convictions set aside and acquittals entered.

Per McLachlin C.J. and Abella, Karakatsanis and Gascon JJ.:

Text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. Whether a claimant had a reasonable expectation of privacy must be assessed in the totality of the circumstances. To claim s. 8 protection, claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable. Only if a claimant’s subjective expectation of privacy was objectively reasonable will the claimant have standing to argue that the search was unreasonable. However, standing is merely the opportunity to argue one’s case. It does not follow that the accused’s argument will succeed, or that the evidence will be found to violate s. 8.

With a text message, the subject matter of the search is the electronic conversation between the sender and the recipient(s). This includes the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information. The subject matter is not the copy of the message stored on the sender’s device, the copy stored on a service provider’s server, or the copy received on the recipient’s device that the police are after; it is the electronic conversation itself, not its components.

A number of factors may assist in determining whether it was objectively reasonable to expect privacy in different circumstances, including: (1) the place where the search occurred whether it be a real physical place or a metaphorical chat room; (2) the private nature of the subject matter, that is whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter.

Control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest. It is only one factor to be considered in the totality of the circumstances. Control must be analyzed in relation to the subject matter of the search, which in this case was an electronic conversation. Individuals exercise meaningful control over the information that they send by text message by making choices about how, when, and to whom they disclose the information. An individual does not lose control over information for the purposes of s. 8 of the Charter simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation. Therefore, even where an individual does not have exclusive control over his or her personal information, only shared control, he or she may yet reasonably expect that information to remain safe from state scrutiny.

In this case, M had a reasonable expectation of privacy in the text messages recovered from W’s iPhone. First, the subject matter of the alleged search was the electronic conversation between M and W, not W’s iPhone, from which the text messages were recovered. Second, M had a direct interest in that subject matter. He was a participant in that electronic conversation and the author of the particular text messages introduced as evidence against him. Third, he subjectively expected the conversation to remain private. M testified that he asked W numerous times to delete the text messages from his iPhone. Fourth, his subjective expectation was objectively reasonable. Each of the three factors relevant to objective reasonableness in this case support this conclusion. If the place of the search is viewed as a private electronic space accessible by only M and W, M’s reasonable expectation of privacy is clear. If the place of the search is viewed as W’s phone, this reduces, but does not negate, M’s expectation of privacy. The mere fact of the electronic conversation between the two men tended to reveal personal information about M’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, M exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. The risk that W could have disclosed it, if he chose to, does not negate the reasonableness of M’s expectation of privacy. Therefore, M has standing to challenge the search and the admission of the evidence of the text messages recovered from W’s iPhone. This conclusion is not displaced by policy concerns. There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some electronic conversations may engage s. 8 of the Charter. Moreover, different facts may well lead to a different result.

The Crown concedes that if M had standing the search was unreasonable. The text messages are thus presumptively inadmissible against him, subject to s. 24(2) of the Charter. In considering whether this evidence should be excluded under s. 24(2), society’s interest in the adjudication of M’s case on its merits is significant. The text messages offer highly reliable and probative evidence in the prosecution of a serious offence and their exclusion would result in the absence of evidence by which M could be convicted. This favours admission. However, the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence. This breached s. 8 of the Charter not only because of the extent of the search, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest. In addition, the police conduct had a substantial impact on M’s Charter‑protected privacy interest in the electronic conversation. On balance, the admission of the evidence would bring the administration of justice into disrepute. It must therefore be excluded under s. 24(2).

Without the erroneously admitted evidence obtained from W’s iPhone, M would have been acquitted. He was convicted instead. To allow that conviction to stand would be a miscarriage of justice. Therefore, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code does not apply.

Per Rowe J.:

The approach based on the totality of circumstances set out by the majority with respect to the existence of a reasonable expectation of privacy accords with the jurisprudence of the Court. The technological means by which we communicate continue to change. An approach based on the totality of circumstances responds to such change because the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 of the Charter is meant to keep pace with technological development. Applying that approach to the facts of this case, M has standing to challenge the search. The modalities of texting inherently limited M in his capacity to exercise control over the record of his text message conversation with W. This alone should not be fatal to M’s reasonable expectation of privacy. Although the concerns raised by the minority are shared, those concerns do not arise on the facts of this case.

Per Moldaver and Côté JJ. (dissenting):

M did not have a reasonable expectation of personal privacy in his text message conversations with W and therefore, M lacked standing to challenge the search of W’s phone under s. 8 of the Charter. Both legal and policy considerations lead to this conclusion. From a legal standpoint, the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search. This connection must be examined by looking at the totality of the circumstances in a particular case. Control over the subject matter of the search in the circumstances is a crucial factor in assessing an individual’s personal connection to it.

Control does not need to be exclusive. While a lack of exclusive control may diminish the strength of a reasonable expectation of privacy, it does not necessarily eliminate it. However, recognizing a reasonable expectation of privacy in the face of a total absence of control is both unprecedented and antithetical to the notion of personal privacy. Therefore, a total absence of control is a compelling indicator that an expectation of personal privacy is unreasonable, and that the individual does not have standing to challenge the search. 

In addition, control need not be direct. A reasonable expectation of privacy will likely arise where a claimant exercises personal control over the subject matter in issue, as in the case of one’s home, possessions and body. However, under a functional approach, constructive control may suffice to ground a reasonable expectation of personal privacy in other contexts, including a legal, professional or commercial relationship.

In this case, the subject matter of the search is the text message conversations between M and W. Those conversations were accessed by police after they had been received on W’s phone. The conversations were not intercepted by police during the transmission process, and they were not accessed on M’s phone. These are important contextual distinctions that show that M had no control over the subject matter of the search in the circumstances of this case. Rather, W had exclusive control over the text message conversations on his phone. W was free to disclose them to anyone he wished, at any time and for any purpose. To conclude that M had a reasonable expectation of personal privacy in those conversations on W’s phone despite his total lack of control over them severs the interconnected relationship between privacy and control that has long formed part of the Court’s s. 8 jurisprudence. It is equally at odds with the fundamental principle that individuals can and will share information as they see fit in a free and democratic society.

The risks of state access and public access are not distinct for the purposes of the reasonable expectation of privacy test. If an expectation of personal privacy is unreasonable against the public, then it is also unreasonable against the state. If M assumed the risk of W allowing the public to access his text message conversations, then M assumed the risk of the police also accessing it.

The majority’s approach to the reasonable expectation of privacy analysis in this case suffers from three notable shortcomings. First, it does not determine where the search actually occurred, despite maintaining that the strength of M’s expectation of privacy will vary depending on the place of the search. Without knowing whether the place of the search is a metaphorical chat room or W’s physical phone, courts have no way of knowing how to assess the strength of M’s expectation of privacy. This uncertainty will have serious implications when courts must assess the impact of an unlawful search on a claimant’s s. 8 right for the purposes of a s. 24(2) Charteranalysis.

Second, although the majority purports to confine its finding of a reasonable expectation of privacy to the circumstances of this case, applying its framework leads to only two possible conclusions. Either all participants to text message conversations enjoy a reasonable expectation of privacy, or criminal justice stakeholders, including trial and appellate judges, are left to decipher on a case‑by‑case basis — without any guidance — whether a claimant has standing to challenge the search of an electronic conversation. To hold that everyone has a reasonable expectation of privacy in text message conversations when those conversations are on another person’s phone effectively eradicates the principle of standing and renders it all but meaningless. As such, under the majority’s all‑encompassing approach to standing, even a sexual predator who lures a child into committing sexual acts and then threatens to kill the child if he or she tells anyone will retain a reasonable expectation of privacy in the text message conversations on the child’s phone. It is hard to think of anything more unreasonable. In the alternative, it is highly unsatisfactory to leave criminal justice stakeholders to guess when and under what circumstances electronic messages will not attract a reasonable expectation of privacy.

Third, from a policy standpoint, granting M standing in these circumstances vastly expands the scope of persons who can bring a s. 8 challenge. The majority adopts an approach to s. 8 that has no ascertainable bounds and threatens a sweeping expansion of s. 8 standing. This carries with it a host of foreseeable consequences that will add to the complexity and length of criminal trial proceedings and place even greater strains on a criminal justice system that is already overburdened. Worse yet, expanding the scope of persons who can bring a s. 8 challenge risks disrupting the delicate balance that s. 8 strives to achieve between privacy and law enforcement interests, particularly in respect of offences that target the most vulnerable members of our society. Although these consequences are not determinative of the reasonableness of M’s expectation of privacy, their cumulative effect weighs heavily in favour of denying him standing.

Denying M standing does not however grant the police immunity from s. 8 of the Charter. Where, as here, the police activity amounts to a search or seizure, it remains subject to s. 8 and a particular claimant’s standing should not be mistaken as the exclusive means of enforcement. Another claimant may have standing to bring a s. 8 challenge against the search or seizure in his or her own criminal trial, or to bring a claim for Charter damages. Moreover, even where s. 8 standing is denied, ss. 7 and 11(d) of the Charter offer residual protection that can, in certain circumstances, provide a claimant with an alternative route to challenge the propriety of police conduct in the course of a search or seizure. This ensures that the effects of the standing requirement are not exploited by the police as a loophole in Charter protection.

This is not a case in which it is appropriate to exercise the residual discretion to exclude evidence under ss. 7 and 11(d) of the Charter. The application judge found that the searches of the text message conversations stored on the phones of M and W both infringed s. 8 of the Charter. As neither claimant had standing to challenge the search of the other’s phone, evidence of those text message conversations was admissible against both M and W. It has not been suggested that the police conduct giving rise to it was a product of design. Nor do the application judge’s findings indicate that the police engaged in deliberate Charter evasion or serious misconduct in the course of either search. In these circumstances, there is no basis to conclude that the fairness of M’s trial was tainted by the admission of the record of the conversations obtained in the search of W’s phone.

Reasons for judgment: McLachlin C.J. (Abella, Karakatsanis and Gascon JJ. concurring)

Concurring Reasons: Rowe J.

Dissenting Reasons: Moldaver J. (Côté J. concurring)

Neutral Citation: 2017 SCC 59

Docket Number: 37118

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16896/index.do

APPEAL DISMISSED

R. v. Jones, 2017 SCC 60 – Constitutional law – Charter of Rights – Enforcement

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 543) affirming the accused’s convictions for firearms and drug trafficking offences and the pre-trial application ruling (2016 OJ No. 3737 (QL)).

J was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co‑accused that were obtained under a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014). Prior to trial, J sought to exclude the text messages on the basis that obtaining them by means of a production order contravened his s. 8 Charter right. The trial judge found that J lacked standing to challenge the production order under s. 8 and he was therefore convicted. J’s appeal against conviction was dismissed.

Held (6-1): The appeal should be dismissed and the production order upheld.

Per McLachlin C.J. and Moldaver, Karakatsanis, Gascon and Côté JJ.:

J had a reasonable expectation of privacy in the text messages stored by Telus and therefore, standing under s. 8 of the Charter to challenge the production order. Whether a claimant has a reasonable expectation of privacy must be answered with regard to the totality of the circumstances of a particular case. Claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable.

In this case, the subject matter of the search is the electronic conversation between J and his co‑accused. J should have been permitted to rely on the Crown’s theory that he authored those text messages for the purposes of establishing his direct interest in their subject matter and his subjective expectation of privacy in the messages. An accused mounting a s. 8 Charter claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. This coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self‑incrimination.

It follows that J subjectively expected privacy in records of his electronic conversation found in the service provider’s infrastructure. Text messages are private communications. This is not in dispute in this case. Moreover, as the application judge found, J and his co‑accused used third‑party names so as to avoid detection or association with the text messages. This suggests that they intended their communications to remain private.

Finally, it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient. That is intuitive. One would not reasonably expect the service provider to share the text messages with an unintended recipient, or post them publicly for the world to see. In this case, it was therefore reasonable for J to expect that the text messages that he sent would not be shared by Telus with any parties other than the intended recipient, notwithstanding that he relinquished direct control over those messages. Neither the absence of a contractual policy, nor the fact that the production order targeted a phone registered to a third party deprive J of that protection.

On the totality of the circumstances, therefore, J had a reasonable expectation of privacy in the text messages and standing to challenge the validity of the production order. However, J’s s. 8 Charter right was not breached because records of text messages stored on a service provider’s infrastructure were lawfully seized by means of a production order under s. 487.012 of the Criminal Code. Based on its plain meaning and read in context, the term “intercept” in s. 183 of Part VI of the Criminal Code encompasses the production or seizure of historical text messages stored by a service provider. Historical text messages denote messages that have been sent and received, not those still in the transmission process. In this case, there is no question that Telus initially intercepted the communications between J and his co‑accused, presumably pursuant to an exception for service delivery purposes under s. 184(2). However, in light of the statutory scheme’s distinction between interception, use and retention, and disclosure, it is clear that Telus’ subsequent storing and provision of the communications to the law enforcement did not constitute additional interceptions. Rather, Telus retained the intercepted communications under s. 184(3) and then disclosed them to the police as contemplated by s. 193(2).

In this case, a Part VI wiretap authorization was unnecessary because the police did not seek an order authorizing the prospective production of future text messages. Nor is there any evidence that the production order resulted in the production of text messages that were still in the transmission process. Therefore, the search and seizure of J’s text messages were properly authorized by the production order provision in s. 487.012 of the Criminal Code, and did not breach J’s s. 8 Charter right.

Per Rowe J.:

There is agreement with the majority that, as a matter of statutory interpretation, a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014), authorizes the police to request the disclosure of text messages from a service provider once those messages have been sent and received. Conversely, a Part VI Criminal Code authorization is required to intercept those messages as they are being transmitted. Given that the records of text messages are stored by the service provider in this case the moment they are sent, however, it makes little difference whether the police “intercept” them or simply obtain them through a production order immediately after they are sent. It appears that the police can in effect sidestep the requirements of Part VI by obtaining a production order immediately after the messages are sent. No settled view is expressed as to whether this anomaly reflects a failure of s. 487.014 to meet the requirements imposed by s. 8 of the Charter because this issue was not raised in argument.

Per Abella J. (dissenting):

There is agreement with the majority that J had a reasonable expectation of privacy in his sent text messages and, as a result, had standing under s. 8 of the Charter to challenge the production order. But since the messages were obtained pursuant to a production order rather than a Part VI Criminal Code authorization, the search and seizure of those messages was not authorized by law and was therefore unreasonable.

The police obtained several production orders pursuant to s. 487.012 of the Criminal Code directed at the service providers Bell, Rogers and Telus. Only Telus stored the content of incoming and outgoing text messages for a period of time after the messages were sent and received. No text messages were obtained from accounts held with the other service providers. Telus’ unique storage practices, rather than the underlying principles in Part VI, led to the production of copies of historical text messages from the targeted Telus account, and the loss of J’s privacy protections available under Part VI. By prioritizing a temporal distinction to determine the level of privacy protection for text messages, Telus customers are left with less protection than those using other service providers who do not store copies of text messages simply because Telus stores copies of text that pass through its infrastructure. This means that the privacy rights of those who text depend on which service provider they use rather than on the fact that they are texting as a means of privately communicating.

The term “intercept” in s. 183 of the Criminal Code should be interpreted in the context of the broader Part VI scheme and the purpose it is meant to serve, namely, to prevent the state from acquiring private communications without lawful authorization and to protect the privacy interests inherent in the content of private communications. The Part VI protections should be available for historical as well as for prospective interception. The timing of the state’s request for information should not distort the communicative dimension of a text message exchange. Interpreting “intercept[ion]” of a private communication should focus on the content, not on the timing of what the investigative technique seeks to access, or on the vagaries of the service provider’s technological practices.

When the police obtain copies of text messages from a service provider, they are acquiring a complete record of all electronic conversations that took place during a given period. The informational content acquired by the state is a complete record of all private communications in the given period. A singular focus on the historicaldimension of the record should not detract from the content and character of this record. It is a record of a conversation that took place between individuals, albeit in an electronic format, that has been assigned a specific timestamp. This record may capture electronic conversations between several people innocently participating in an electronic conversation with the targeted recipient, as well electronic conversations involving multiple participants engaged in a group text.

Since no Part VI authorization was obtained, the acquisition of copies of J’s historical text messages through the production order was invalid and breached J’s rights under s. 8 of the Charter.

The messages should be excluded under s. 24(2) of the Charter. The evolution of shifting technology has resulted in a correspondingly evolving jurisprudence which tries to keep pace with the impact of technology on constitutional rights. Where no case directly on point has been decided, the police have two choices: to use the jurisprudential gap as a rationale for being more intrusive, or to exercise greatercaution before interfering with legislatively endorsed privacy rights. The better judicial approach is one that encourages conduct on the part of the police that errs on the side of being protective of the rights of the public, rather than one that endorses Charter breaches in deference to the mechanics of new technologies.

The impact of the Charter‑infringing conduct on J’s Charter‑protected privacy interests under s. 8 of the Charter was significant. Whether they take the form of a historical record or occur in real‑time, electronic conversations have the potential to reveal information going to the individual’s biographical core, including information which tends to reveal intimate details of the lifestyle or personal choices of an individual. While the police did not technically act in bad faith, their failure to seek Part VI authorization put public confidence in the administration of justice at serious risk. The impact of their conduct on J’s considerable, Charter‑protected privacy interests under s. 8 of the Charter was significant, which outweighs the public’s interest in seeing a determination of J’s case on the merits.

Reasons for judgment: Côté J. (McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ. concurring)

Concurring Reasons: Rowe J.

Dissenting Reasons: Abella J.

Neutral Citation: 2017 SCC 60

Docket Number: 37194

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16897/index.do