Canadians don’t give up their right to privacy after sending a text message to another person, the country’s top court has ruled. It’s a decision that one privacy lawyer said still means if you want to ensure privacy, encrypt your text messages.

The case involved an Ottawa area man who had his conviction for firearms offences dismissed after the Supreme Court of Canada ruled today that evidence of text messages he sent and found on an alleged accomplice were wrongly admitted as evidence at his trial. Essentially, the court ruled that without a search warrant the accused right to privacy under the Charter of Rights had been violated.

Police in fact had a warrant to search the house of a man the court calls M and the alleged accomplice and seized their cellphones However, the trial judge ruled that warrant was invalid for technical reasons and the text messages on M’s phone couldn’t be entered as evidence. However, the court said the alleged incriminating text messages received on the accomplice’s phone were admissible. On that basis the trial judge convicted M of two counts of trafficking firearms and other charges. The Ontario Court of Appeal agreed with that decision, concluding Marakah had no reasonable expectation of privacy to texts on someone else’s phone.

However, the Supreme Court, in a 5-2 decision, disagreed.

“An individual does not lose control over information for the purposes of s. 8  of the Charter  [the right to unreasonable search or siezure] simply because another individual possesses it or can access it,” the court ruled. “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 particular the majority of the court noted that M testified that he asked the alleged accomplice numerous times to delete the text messages from his iPhone. The risk that the alleged accomplice could have disclosed the communications to someone if he chose to, does not negate the reasonableness of Marakah’s expectation of privacy, the court concluded.

The court also noted the search of the alleged accomplice’s phone was not done at the time it was siezed, but done two hours later.

Without the erroneously admitted evidence obtained from the alleged accomplice the accused would have been acquitted, the majority of the Supreme Court said. To allow the conviction to stand would be a miscarriage of justice, the court said.

In a separate case today the Supreme Court upheld the conviction of Tristan Jones based on text messages between him and a co-accused that had been temporarily saved by Telus and a copy lawfully captured later by police with a production order. In that case Jones’ lawyer argued his client had a right to privacy and police should have got a wiretap interception order (which has a higher standard than a production order). However, the Supreme Court said police weren’t intercepting the text messages in transit — which would have required a wiretap — only retrieving a copy afterwards.

Of the three major wireless carriers Telus is the only one that temporarily stores the content of incoming and outgoing text messages.

Halifax privacy lawyer David Fraser said both rulings make it clear that a person who has a privacy interest in a text message has standing to ask a court that the search of messages could violate the Charter of Rights.

The M decision “is clearly consistent with the trending case law of the court that looks at these privacy questions within the context and all the circumstances of the case,” he added. “So it’s not the fact that the person no longer has control over the text message that is fatal to their privacy claim. That’s only one factor. You look at the nature of their conversation.” And the Supreme Court, he noted, said this involved the search of a conversation — where one person asked the other to delete the message — not just the search of a phone.

For police the ruling in M means they have to have a valid search warrant to get at text messages, or any data, Fraser said, even if it is on a device that is not the accused’s.

If a person wants to ensure data is private encryption should be used, Fraser said. “if you had taken steps to encrypt your messages I think it is pretty clear that would be an important factor (for a court) to determine whether or not you have an expectation of privacy in those messages.”

He also noted that the Supreme Count has not dealt with the issue of what police need to do — or if they can — compel a person to surrender a password so encrypted data can be read.



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