Nour Marakah Appellant v. Her Majesty The Queen, 2017 SCC 59

SUPREME COURT OF CANADA Citation: R. v.

Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608 Appeal Heard: March 23, 2017 Judgment Rendered: December 8, 2017 Docket: 37118 Between: Nour Marakah Appellant and Her Majesty The Queen Respondent - and - Director of Public Prosecutions, Attorney General of British Columbia, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Criminal Lawyers’ Association of Ontario, British Columbia Civil Liberties Association and Canadian Civil Liberties Association Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ.

Reasons for Judgment: (paras. 1 to 82) McLachlin C.J. (Abella, Karakatsanis and Gascon JJ. concurring) Concurring Reasons: (paras. 83 to 90) Rowe J. Dissenting reasons: (paras. 91 to 200) Moldaver J. (Côté J. concurring) R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608

Nour Marakah Appellant v. Her Majesty The Queen Respondent and Director of Public Prosecutions, Attorney General of British Columbia, Attorney General of Alberta, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Criminal Lawyers’ Association of Ontario, British Columbia Civil Liberties Association and Canadian Civil Liberties Association Interveners Indexed as: R. v. Marakah 2017 SCC 59 File No.: 37118. 2017: March 23; 2017: December 8.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Enforcement — Standing — Search and seizure — Evidence — Admissibility — Text messages — Mobile devices of accused and accomplice seized and searched without warrant — Whether accused has reasonable expectation of privacy in text message conversation recovered on accomplice’s device and therefore standing to challenge search and admission of evidence — Whether guarantee against unreasonable search and seizure in s. 8 of Canadian Charter of Rights and Freedoms protects text messages recovered on recipient’s device — Whether evidence should be excluded under s. 24(2) of Charter — If so, whether curative proviso in s. 686(1)(b)(iii) of Criminal Code applies — Criminal Code, R.S.C. 1985, c.

C-46, s. 686(1) (b)(iii). 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 Charter right 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 (Moldaver and Côté JJ. dissenting): 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. Ifan expectation of personal privacy is unreasonable against the public, then it is also unreasonable against the state. If M assumed the riskof 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 notableshortcomings. First, it does not determine where the search actually occurred, despite maintaining that the strength of M’s expectation ofprivacy will vary depending on the place of the search. Without knowing whether the place of the search is a metaphorical chat room orW’s physical phone, courts have no way of knowing how to assess the strength of M’s expectation of privacy.

This uncertainty will haveserious 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)Charter analysis. Second, although the majority purports to confine its finding of a reasonable expectation of privacy to the circumstances ofthis case, applying its framework leads to only two possible conclusions.

Either all participants to text message conversations enjoy areasonable expectation of privacy, or criminal justice stakeholders, including trial and appellate judges, are left to decipher on acase-by-case basis — without any guidance — whether a claimant has standing to challenge the search of an electronic conversation. Tohold that everyone has a reasonable expectation of privacy in text message conversations when those conversations are on anotherperson’s phone effectively eradicates the principle of standing and renders it all but meaningless.

As such, under the majority’sall-encompassing approach to standing, even a sexual predator who lures a child into committing sexual acts and then threatens to killthe 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 toguess 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 canbring a s. 8 challenge. The majority adopts an approach to s. 8 that has no ascertainable bounds and threatens a sweeping expansion ofs. 8 standing. This carries with it a host of foreseeable consequences that will add to the complexity and length of criminal trialproceedings and place even greater strains on a criminal justice system that is already overburdened.

Worse yet, expanding the scope ofpersons who can bring a s. 8 challenge risks disrupting the delicate balance that s. 8 strives to achieve between privacy and lawenforcement interests, particularly in respect of offences that target the most vulnerable members of our society. Although theseconsequences are not determinative of the reasonableness of M’s expectation of privacy, their cumulative effect weighs heavily in favourof denying him standing. Denying M standing does not however grant the police immunity from s. 8 of the Charter.

Where, as here, the policeactivity amounts to a search or seizure, it remains subject to s. 8 and a particular claimant’s standing should not be mistaken as theexclusive means of enforcement. Another claimant may have standing to bring a s. 8 challenge against the search or seizure in his or herown 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 Charteroffer residual protection that can, in certain circumstances, provide a claimant with an alternative route to challenge the propriety ofpolice conduct in the course of a search or seizure. This ensures that the effects of the standing requirement are not exploited by thepolice 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) ofthe Charter. The application judge found that the searches of the text message conversations stored on the phones of M and W bothinfringed s. 8 of the Charter. As neither claimant had standing to challenge the search of the other’s phone, evidence of those textmessage conversations was admissible against both M and W. It has not been suggested that the police conduct giving rise to it was aproduct of design. Nor do the application judge’s findings indicate that the police engaged in deliberate Charter evasion or seriousmisconduct in the course of either search.

In these circumstances, there is no basis to conclude that the fairness of M’s trial was taintedby the admission of the record of the conversations obtained in the search of W’s phone. Cases Cited By McLachlin C.J. Applied: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; distinguished: R. v.C. (W.B.) (2000), (ON CA), 142 C.C.C. (3d) 490, aff’d 2001 SCC 17, [2001] 1 S.C.R. 530; referred to: R. v.Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Edwards, (SCC),[1996] 1 S.C.R. 128; Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R.v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. TELUS Communications Co., 2013SCC 16, [2013] 2 S.C.R. 3; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211;R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Jones, 2017 SCC 60, [2017]2 S.C.R. 696; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Duarte, (SCC), [1990] 1 S.C.R. 30; R. v.Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Orlandis-Habsburgo, 2017ONCA 649; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Fearon,2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Belnavis, (SCC), [1997] 3S.C.R. 341; R. v. Wildman, (SCC), [1984] 2 S.C.R. 311; Colpitts v. The Queen, (SCC), [1965] S.C.R.739; R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212. By Rowe J. Referred to: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Patrick,2009 SCC 17, [2009] 1 S.C.R. 579; R. v.

Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Wong, (SCC), [1990] 3S.C.R. 36; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657. By Moldaver J. (dissenting)

R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696; R. v. Belnavis (1996), (ON CA), 29 O.R. (3d) 321, aff’d (SCC), [1997] 3 S.C.R. 341; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Cole, 2012 SCC 53, [2012] 3S.C.R. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Fearon, 2014 SCC77, [2014] 3 S.C.R. 621; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Pugliese (1992), (ON CA), 8 O.R. (3d) 259; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R.v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v.

Ward, 2012 ONCA 660, 112 O.R. (3d) 321; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Sandhu (1993), (BC CA), 82 C.C.C. (3d) 236; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Duarte, (SCC), [1990]1 S.C.R. 30; R. v. Shayesteh (1996), (ON CA), 31 O.R. (3d) 161; R. v. Rendon (1999), 140 C.C.C. (3d) 12; R. v. Law,2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R.390; R. v. Rogers Communications Partnership, 2016 ONSC 70, 128 O.R. (3d) 692; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R.v.

Sandhu, 2014 BCSC 303; R. v. Lowrey, 2016 ABPC 131, 357 C.R.R. (2d) 76; R. v. Craig, 2016 BCCA 154, 335 C.C.C. (3d) 28;Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Orlandis-Habsburgo, 2017ONCA 649; R. v. Reeves, 2017 ONCA 365, 350 C.C.C. (3d) 1; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Wills (1992), (ON CA), 7 O.R. (3d) 337; R. v. Borden, (SCC), [1994] 3 S.C.R. 145; R. v. McBride, 2016 BCSC 1059; R. v.

D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149; R. v. Hutchinson, 2014SCC 19, [2014] 1 S.C.R. 346; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; R. v. Bjelland, 2009 SCC 38, [2009] 2S.C.R. 651; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 24(1), (2). Criminal Code, R.S.C. 1985, c. C-46,

Part VI, ss. 183 “private communication”, 184.1, 184.4, 278.1 to 278.91, 686(1)(b)(iii). Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. Authors Cited Hubbard, Robert W., Peter M. Brauti and Scott K. Fenton. Wiretapping and Other Electronic Surveillance: Law and Procedure, vol. 2.Aurora, Ont.: Canada Law Book, 2000 (loose-leaf updated June 2017, release 50). McLuhan, Marshall. Understanding Media: The Extensions of Man. New York: McGraw-Hill, 1964. Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.

APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and LaForme JJ.A.), 2016 ONCA 542,131 O.R. (3d) 561, 359 C.R.R. (2d) 70, 338 C.C.C. (3d) 269, 30 C.R. (7th) 263, 352 O.A.C. 68, [2016] O.J. No. 3738 (QL), 2016CarswellOnt 10861 (WL Can.), affirming the accused’s convictions for firearms offences and the pre-trial application ruling. Appealallowed, Moldaver and Côté JJ. dissenting. Mark J. Sandler and Wayne Cunningham, for the appellant. Randy Schwartz and Andrew Hotke, for the respondent. Nicholas E. Devlin and Jennifer Conroy, for the intervener the Director of Public Prosecutions.

Written submissions only by Daniel M. Scanlan, for the intervener the Attorney General of British Columbia. Maureen McGuire, for the intervener the Attorney General of Alberta. Jill R. Presser and David A. Fewer, for the intervener the Samuelson-Glushko Canadian Internet Policy and Public InterestClinic. Susan M. Chapman, Naomi Greckol-Herlich and Bianca Bell, for the intervener the Criminal Lawyers’ Association ofOntario. Gerald Chan, for the intervener the British Columbia Civil Liberties Association.

Christine Lonsdale and Charlotte-Anne Malischewski, for the intervener the Canadian Civil Liberties Association. The judgment of McLachlin C.J. and Abella, Karakatsanis and Gascon was delivered by The Chief Justice — I. Introduction [1] Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages havereached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without awarrant?

The question in this appeal is whether the guarantee against unreasonable search and seizure in s. 8 of the Canadian Charter ofRights and Freedoms can ever apply to such messages. [2] The appellant, Nour Marakah, sent text messages regarding illegal transactions in firearms. The police obtained

warrants to search his home and that of his accomplice, Andrew Winchester. They seized Mr. Marakah’s BlackBerry and Mr.Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Mr. Marakah and sought to use thetext messages as evidence against him. At trial, Mr. Marakah argued that the messages should not be admitted against him because theywere obtained in violation of his s. 8 right against unreasonable search and seizure: see trial reasons, reproduced in R.R., at pp. 1-26. [3] The application judge held that the warrant for Mr.

Marakah’s residence was invalid and that the text messagesrecovered from his BlackBerry could not be used against him, but that Mr. Marakah had no standing to argue that the text messagesrecovered from Mr. Winchester’s iPhone should not be admitted against him: application judge’s reasons, reproduced in A.R., at pp. 1-27. He admitted the text messages and convicted Mr. Marakah of multiple firearms offences. The majority of the Court of Appeal forOntario, LaForme J.A. dissenting, agreed that Mr. Marakah could have no expectation of privacy in the text messages recovered fromMr.

Winchester’s iPhone, and hence did not have standing to argue against their admissibility: 2016 ONCA 542, 131 O.R. (3d) 561. [4] I conclude that, depending on the totality of the circumstances, text messages that have been sent and received mayin some cases be protected under s. 8 and that, in this case, Mr.

Marakah had standing to argue that the text messages at issue enjoy s. 8protection. [5] The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation ofprivacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation ofprivacy (see Moldaver J.’s reasons, at paras. 100 and 167-68); whether a reasonable expectation of privacy in such a conversation ispresent in any particular case must be assessed on those facts by the trial judge. [6] In this case, Mr.

Marakah subjectively believed his text messages to be private, even after Mr. Winchester receivedthem. This expectation was objectively reasonable. I therefore conclude that Mr. Marakah has standing to challenge the use of the textmessages against him on the grounds that the search violated s. 8 of the Charter. [7] Ordinarily, standing established, it would be for the trial judge to determine whether the text messages in factenjoyed s. 8 protection in all of the circumstances of the case. However, the Crown concedes that, if Mr. Marakah has standing, thesearch was unreasonable and violated Mr.

Marakah’s right under s. 8 of the Charter. The remaining question is whether the evidence ofthe conversation should have been excluded under s. 24(2) of the Charter. I conclude that it should have been. This principled approachconforms to the jurisprudence, and should not be undermined by impassioned hypotheses. I would therefore allow the appeal, set asidethe convictions and acquit Mr. Marakah. II. Analysis A. When Does

Section 8 Protection Apply? [8] The issue is whether the courts below erred in holding that an accused can never claim s. 8 protection for textmessages accessed through a recipient’s phone because the sender has no privacy interest in the messages if they are not containedwithin his or her own device. The question is whether Mr. Marakah could have had a reasonable expectation of privacy in thosemessages. [9]

Section 8 of the Charter provides that [e]veryone has the right to be secure against unreasonable search or seizure. [10]

Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state actionand the information to which it gives access”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; see also R. v. Spencer, 2014 SCC43, [2014] 2 S.C.R. 212, at para. 16; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18. To claim s. 8 protection, a claimantmust first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected itwould be private and that this expectation was objectively reasonable: R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, atpara. 45; see also Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60; Katz v. United States, 389 U.S.347 (1967), at p. 361, per Harlan J., concurring. Whether the claimant had a reasonable expectation of privacy must be assessed in “thetotality of the circumstances”: Edwards, at paras. 31 and 45; see also Spencer, at paras. 16-18; Cole, at para. 39; R. v. Patrick, 2009 SCC17, [2009] 1 S.C.R. 579, at para. 26; Tessling, at para. 19.

This approach applies to determining whether there is a reasonable expectationof privacy in a given text message conversation. [11] In considering the totality of the circumstances, four “lines of inquiry” (Cole, at para. 40) guide the court’s analysis: 1. What was the subject matter of the alleged search? 2. Did the claimant have a direct interest in the subject matter? 3. Did the claimant have a subjective expectation of privacy in the subject matter? 4.

If so, was the claimant’s subjective expectation of privacy objectively reasonable? (See also Spencer, at para. 18; Patrick, at para. 27; Tessling, at para. 32.) [12] Only if the answer to the fourth question is “yes” — that is, if the claimant’s subjective expectation of privacy was

objectively reasonable — will the claimant have standing to assert his s. 8 right. If the court so concludes, the claimant may argue thatthe state action in question was unreasonable. If, however, the court determines that the claimant did not have a reasonable expectation ofprivacy in the subject matter of the alleged search, then the state action cannot have violated the claimant’s s. 8 right. He will not havestanding to challenge its constitutionality. B. Did Mr.

Marakah Have a Reasonable Expectation of Privacy in the Text Messages? [13] I conclude that the four lines of inquiry referred to above establish that Mr. Marakah had a reasonable expectation ofprivacy in the text messages recovered from Mr. Winchester’s iPhone. The subject matter of the alleged search was the electronicconversation between Mr. Marakah and Mr. Winchester. Mr. Marakah had a direct interest in that subject matter. He subjectivelyexpected it to remain private. That expectation was objectively reasonable. He therefore has standing to challenge the search.

(1) What Was the Subject Matter of the Search? [14] The first step in the analysis is to identify the subject matter of the search: see Spencer, at para. 18; Cole, at para. 40;Patrick, at para. 27; Tessling, at para. 32. How the subject matter is defined may affect whether the applicant has a reasonableexpectation of privacy.

Care must therefore be taken in defining the subject matter of a search, particularly where the search is ofelectronic data: see Spencer, at para. 23. [15] The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, ormodalities of transmission. As Doherty J.A. stated in R. v.

Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 65, a court identifying thesubject matter of a search must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather byreference to the nature of the privacy interests potentially compromised by the state action”.

In Spencer, at para. 26, Cromwell J.endorsed these words and added that courts should take “a broad and functional approach to the question, examining the connectionbetween the police investigative technique and the privacy interest at stake” and should look at “not only the nature of the preciseinformation sought, but also at the nature of the information that it reveals”. The court’s task, as Doherty J.A. put it in Ward, is todetermine “what the police were really after” (para. 67). [16] One option can be eliminated at the outset. The subject matter of the search at issue was not Mr.

Winchester’siPhone, from which the text messages in this case were recovered. Neither the iPhone itself nor its contents generally is what the policewere really after. The subject matter must, therefore, be defined more precisely. [17] Correctly characterized, the subject matter of the search was Mr. Marakah’s “electronic conversation” with Mr.Winchester: see R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 5, per Abella J. To describe text messagesas part of an electronic conversation is to take a holistic view of the subject matter of the search.

This properly avoids a mechanicalapproach that defines the subject matter in terms of physical acts, spaces, or modalities of transmission: see Spencer, at paras. 26 and 31.It also reflects the technological reality of text messaging. [18] “Text messaging” refers to the electronic communications medium technically known as Short Message Service(“SMS”). SMS uses standardized communication protocols and mobile telephone service networks to transmit short text messages fromone mobile phone to another: TELUS, at para. 111, per Cromwell J., dissenting but not on this point.

Colloquially, however, “textmessaging” (or the verb “to text”) can also describe various other person-to-person electronic communications tools, such as AppleiMessage, Google Hangouts, and BlackBerry Messenger. These means of nearly instant communication are both technologically distinctfrom and functionally equivalent to SMS. Different service providers also handle SMS messages differently. The data that constituteindividual SMS or other text messages may exist in different places at different times. They may be transmitted, stored, and accessed indifferent ways.

But the interconnected system in which they all participate functions to permit rapid communication of short messagesbetween individuals.

In these reasons, I use “text messages” to refer to the broader category of electronic communications media, and“SMS” or “SMS messages” to refer to that medium specifically. [19] When a text message is searched, it is not the copy of the message stored on the sender’s device, the copy stored ona service provider’s server, or the copy in the recipient’s “inbox” that the police are really after; it is the electronic conversation betweentwo or more people that law enforcement seeks to access.

Where data are physically or electronically located varies from phone tophone, from service provider to service provider, or, with text messaging more broadly, from technology to technology. The s. 8 analysismust be robust to these distinctions, in harmony with the need to take a broad, purposive approach to privacy protection under s. 8 of theCharter: Spencer, at para. 15; Hunter, at pp. 156-57. If “the broad and general right to be secure from unreasonable search and seizureguaranteed by s. 8 is meant to keep pace with technological development” (R. v.

Wong, (SCC), [1990] 3 S.C.R. 36, at p.44), then courts must recognize that SMS technology, in which messages may be said to be “sent”, “received”, and “transmitted”between devices, is just one means of text messaging among many and is, from the point of view of the user, functionally identical tonumerous others. As Abella J. stated in TELUS, at para. 5, “[t]echnical differences inherent in new technology should not determine thescope of protection afforded to private communications”.

The subject matter of the search is the conversation, not its components. [20] I conclude, and Moldaver J. agrees, that for the purpose of determining whether s. 8 is capable of protecting SMS orother text messages, the subject matter of the search is the electronic conversation between the sender and the recipient(s). This includesthe existence of the conversation, the identities of the participants, the information shared, and any inferences about associations andactivities that can be drawn from that information: see Spencer, at paras. 26-31; see also R. v.

Gomboc, 2010 SCC 55, [2010] 3 S.C.R.211, at para. 38, per Deschamps J., at para. 81, per Abella J., and at para. 119, per McLachlin C.J. and Fish J.; R. v. Kang-Brown, 2008SCC 18, [2008] 1 S.C.R. 456, at paras. 174-75, per Deschamps J., and at para. 227, per Bastarache J.; R. v. A.M., 2008 SCC 19, [2008] 1S.C.R. 569, at para. 67, per Binnie J. So it was here.

(2) Did Mr. Marakah Have a Direct Interest in the Subject Matter? [21] Mr. Marakah had a direct interest in the information contained in the electronic conversation that was the subjectmatter of the search: see Spencer, at para. 50; Patrick, at para. 31. He was a participant in that electronic conversation and the author ofthe particular text messages introduced as evidence against him.

(3) Did Mr. Marakah Have a Subjective Expectation of Privacy in the Subject Matter? [22] The claimant must have had a subjective expectation of privacy in the subject matter of the alleged search for s. 8 tobe engaged. As Binnie J. acknowledged in Patrick, at para. 37, the requirement that the claimant establish a subjective expectation ofprivacy is not “a high hurdle”: see also R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 20, per Côté J. [23] Whether Mr. Marakah had a subjective expectation of privacy in the contents of his electronic conversation with Mr.Winchester has never been in serious dispute.

Mr. Marakah’s evidence was that he expected Mr. Winchester to keep the contents of theirelectronic conversation private: see application judge’s reasons, at para. 91. He testified that he asked Mr. Winchester numerous times todelete the text messages from his iPhone (ibid.). I conclude that Mr. Marakah subjectively expected that the contents of his electronicconversation with Mr. Winchester would remain private.

(4) Was Mr. Marakah’s Subjective Expectation of Privacy Objectively Reasonable? [24] The claimant’s subjective expectation of privacy in the subject matter of the alleged search must have beenobjectively reasonable in order to engage s. 8.

Over the years, courts have referred to a number of factors that may assist in determiningwhether it was reasonable to expect privacy in different circumstances: see Cole, at para. 45; Tessling, at para. 32; Edwards, at para. 45.The factors that figured most prominently in the arguments before us are: (1) the place where the search occurred; (2) the private natureof the subject matter, i.e., whether the informational content of the electronic conversation revealed details of the claimant’s lifestyle orinformation of a biographic nature; and (3) control over the subject matter.

I will consider each of these factors in turn. I will then dealwith the policy arguments raised against recognizing s. 8 protection for text messages. (

a) The Place of the Search [25] Place may be helpful in determining whether a person has a reasonable expectation of privacy for the purposes of s.8.

At common law, privacy was often designated by place, as evident in the old dictum that every man’s home is his castle: see Tessling,at para. 22. [26] Place may inform whether it is reasonable to expect a verbal conversation to remain private; depending on thecircumstances, a conversation in a crowded restaurant may not attract the protection of s. 8, while the same conversation behind closeddoors may. [27] The factor of “place” was largely developed in the context of territorial privacy interests, and digital subject matter,such as an electronic conversation, does not fit easily within the strictures set out by the jurisprudence.

What is the place of an electronictext message conversation? And what light does that shed on a claimant’s reasonable expectation of privacy? Place is important onlyinsofar as it informs the objective reasonableness of a subjective expectation of privacy. [28] One possibility is that an electronic conversation does not occupy a particular physical place. All or part of it may beon the sender’s phone or the recipient’s, or in radio waves or a service provider’s database, or on a remote server to which both the senderand the recipient (or the recipients) have access, or some combination of these.

This interconnected web of devices and servers creates anelectronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who textfriends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes.There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closeddoors. The phrase “chat room” to describe an Internet site through which people communicate is not merely a metaphor.

In a similarway, text messaging can create private chat rooms between individuals. Although electronic, these rooms are the place of the search.This suggests that there would be a reasonable expectation of privacy in a text message conversation. [29] Another option is to say that the place of the search is the device through which the messages are accessed or stored:see Moldaver J.’s reasons, at paras. 144-45 and 151. Again, this suggests there may be a reasonable expectation of privacy in a textmessage conversation.

Control or regulation of access to a place is relevant to a reasonable expectation of privacy: see Edwards, at para.45. I may have a high expectation of privacy in my own phone, which I completely control, a lesser expectation of privacy in my friend’sphone, which I expect her to control, and no reasonable expectation of privacy at all if I expect the text message to be displayed to thepublic.

A reasonable expectation of privacy may exist on a spectrum or in a “hierarchy” of places: Tessling, at para. 22. [30] The place of the search is simply one of several factors that must be weighed to determine whether the accused had areasonable expectation of privacy for the purposes of s. 8 of the Charter. Whether one views the place of an electronic conversation as ametaphorical chat room or a real physical place, it is clear that the place of the text message conversation does not exclude anexpectation of privacy. At the end of the day, s. 8 “protects people, not places”: Hunter, at p. 159.

The question always comes back towhat the individual, in all of the circumstances, should reasonably have expected. (

b) The Private Nature of the Information [31] The purpose of s. 8 is “to protect a biographical core of personal information which individuals in a free anddemocratic society would wish to maintain and control from dissemination to the state”: R. v. Plant, (SCC), [1993] 3S.C.R. 281, at p. 293.

It follows that the potential for revealing private information is a factor to consider in determining whether anelectronic conversation attracts a reasonable expectation of privacy and is protected by s. 8 of the Charter. [32] In considering this factor, the focus is not on the actual contents of the messages the police have seized, but rather onthe potential of a given electronic conversation to reveal personal or biographical information. For the purposes of s. 8 of the Charter,the conversation is an “opaque and sealed ‘bag of information’”: Patrick, at para. 32; see also Wong, at p. 50.

What matters is whether, inthe circumstances, a search of an electronic conversation may betray “information which tends to reveal intimate details of the lifestyleand personal choices of the individual” (Plant, at p. 293), such that the conversation’s participants have a reasonable expectation ofprivacy in its contents, whatever they may be: see Cole, at para. 47; Tessling, at paras. 25 and 27.

[33] Individuals may even have an acute privacy interest in the fact of their electronic communications. As MarshallMcLuhan observed at the dawn of the technological era, “the medium is the message”: M. McLuhan, Understanding Media: TheExtensions of Man (1964), at p. 7. The medium of text messaging broadcasts a wealth of personal information capable of revealingpersonal and core biographical information about the participants in the conversation. [34] The personal nature of the information that can be derived from text messages is linked to the private nature oftexting.

People may be inclined to discuss personal matters in electronic conversations precisely because they understand that they areprivate. The receipt of the information is confined to the people to whom the text message is sent. Service providers are contracted toconfidentiality. Apart from possible police interception — which cannot be considered for the purpose of determining a reasonableexpectation of privacy (see Patrick, at para. 14; Wong, at p. 47; R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30, at pp. 43-44)— no one else knows about the message or its contents. [35] Indeed, it is difficult to think of a type of conversation or communication that is capable of promising more privacythan text messaging. There is no more discreet form of correspondence. Participants need not be in the same physical place; in fact, theyalmost never are. It is, as this Court unanimously accepted in TELUS, a “private communication” as that term is defined in s. 183 of theCriminal Code, R.S.C. 1985, c.

C-46, namely, “[a] telecommunication . . . that is made under circumstances in which it is reasonable forthe originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it”: seeTELUS, at para. 12, per Abella J., at para. 67, per Moldaver J., and at para. 135, per Cromwell J. [36] One can even text privately in plain sight. A wife has no way of knowing that, when her husband appears to becatching up on emails, he is in fact conversing by text message with a paramour. A father does not know whom or what his daughter istexting at the dinner table.

Electronic conversations can allow people to communicate details about their activities, their relationships,and even their identities that they would never reveal to the world at large, and to enjoy portable privacy in doing so. [37] Electronic conversations, in sum, are capable of revealing a great deal of personal information. Preservation of a“zone of privacy” in which personal information is safe from state intrusion is the very purpose of s. 8 of the Charter: see Patrick, atpara. 77, per Abella J.

As the foregoing examples illustrate, this zone of privacy extends beyond one’s own mobile device; it can includethe electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions —and not just the contents of a particular cell phone at a particular point in time — to remain private. (

c) Control [38] Control, ownership, possession, and historical use have long been considered relevant to determining whether asubjective expectation of privacy is objectively reasonable: see Edwards, at para. 45; Cole, at para. 51. Like the other factors, control isnot an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest: see Cole, at paras. 54 and58; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 22.

Control is one element to be considered in the totality of thecircumstances in determining the objective reasonableness of a subjective expectation of privacy. [39] Control must be analyzed in relation to the subject matter of the search: the electronic conversation. Individualsexercise meaningful control over the information they send by text message by making choices about how, when, and to whom theydisclose the information. They “determine for themselves when, how, and to what extent information about them is communicated toothers”: A. F.

Westin, Privacy and Freedom (1970), at p. 7, quoted in Spencer, at para. 40, citing Tessling, at para. 23; see also R. v.Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 429, per La Forest J.; Duarte, at p. 46. [40] The Crown argues that Mr. Marakah lost all control over the electronic conversation with Mr. Winchester becauseMr. Winchester could have disclosed it to third parties. However, the risk that recipients can disclose the text messages they receive doesnot change the analysis: Duarte, at pp. 44 and 51; Cole, at para. 58.

To accept the risk that a co-conversationalist could disclose anelectronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation absent suchdisclosure. “[T]he regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone willrepeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit ourwords”: Duarte, at p. 44.

Therefore, the risk that a recipient could disclose an electronic conversation does not negate a reasonableexpectation of privacy in an electronic conversation. [41] The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because anotherperson possesses it or can access it. Even where “technological reality” (Cole, at para. 54) deprives an individual of exclusive controlover his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr.Marakah shared information with Mr.

Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this informationto third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protectionunder s. 8. [42] The shared control aspect of this case is similar to that in Cole. Mr. Cole had pornography stored on his workcomputer. His employer, like Mr. Winchester in this case, could access the contents of the computer. Mr. Cole did not have exclusivecontrol of the physical location searched (his work-issued laptop). Yet this Court held that Mr.

Cole had a reasonable expectation ofprivacy in the subject matter of the search, i.e., the pornographic material stored on the computer: Cole, at paras. 51-58. [43] The majority of the Court of Appeal distinguished Cole on the ground that Mr. Cole’s employer “permitted users touse the computers for personal purposes”, in contrast to Mr. Marakah who had no such privileges with respect to Mr. Winchester’siPhone (paras. 62-64). Moldaver J., meanwhile, emphasizes that Mr. Cole “retained the ability to delete information on the computer andprevent its dissemination” (para. 134).

With respect, it is difficult to see what difference it would have made if Mr. Winchester hadpermitted Mr. Marakah to use his iPhone to delete text messages or for any other purposes. The issue is not who owns the device throughwhich the electronic conversation is accessed, but rather whether the claimant exercised control over the information reflected therein. In Cole, that was pornographic images. In this case, it is the electronic conversation between Mr. Marakah and Mr. Winchester.[1]

[44] My colleague Moldaver J. concludes that control is “a crucial contextual factor” in this case (para. 117) and findsthat Mr. Marakah’s lack of control over Mr. Winchester’s phone is fatal to his reasonable expectation of privacy in the electronicconversation (paras. 99, 122 and 130). With great respect, I take a different view. First, control is not dispositive, but only one factor to beconsidered in the totality of the circumstances.

Second, my colleague’s approach focuses not on the subject matter of the search, theelectronic conversation, but rather on the device through which the information was accessed, Mr. Winchester’s phone. Sometimes,control over information may be a function of control over a physical object or place. However, this is not the only indicator of effectivecontrol. Sometimes, as with electronic conversations, control may arise from the choice of medium and the designated recipient. [45] I conclude that the risk that Mr. Winchester could have disclosed the text messages does not negate Mr.

Marakah’scontrol over the information contained therein. By choosing to send a text message by way of a private medium to a designated person,Mr. Marakah was exercising control over the electronic conversation. The risk that the recipient could have disclosed it, if he chose to,does not negate the reasonableness of Mr. Marakah’s expectation of privacy against state intrusion. (

d) Policy Considerations [46] It is suggested that even if the place of the search, the private nature of the subject matter, and the control over thesubject matter support the conclusion that there may be an objectively reasonable expectation of privacy in a given electronicconversation, the Court should not recognize such an expectation because of the impact this would have on law enforcement. The Crownargues, and Moldaver J. concludes, that these considerations should tip the balance against recognition.

Respectfully, I disagree. [47] It is argued (see Moldaver J.’s reasons, at paras. 178-88) that if s. 8 may protect the sender’s privacy in a textmessage after it has been received then the police will either be required to obtain warrants in more situations or will be inclined to do so“out of an abundance of caution”, and that this may impact the ability of police to review messages sent to victims of sexual assault,sexual interference, harassment, child luring, and various other offences without judicial authorization. [48] Moldaver J. rejects any

interpretation of s. 8 that would allow sexual predators or abusive partners to retain areasonable expectation of privacy in text messages that they may send to their victims (para. 169). However, since Hunter, prior judicialauthorization has been relied on to preserve our privacy rights under s. 8. In consequence, the fruits of a search cannot be used to justifyan unreasonable privacy violation.

To be meaningful, the s. 8 analysis must be content neutral. [49] Nor does my position lead inevitably to the conclusion that text messages sent by sexual predators to children or sentby abusive partners to their spouses will not be allowed into evidence. Three scenarios are possible. [50] On the first scenario, the victim, his or her parents, or other intelligence alerts the police to the existence of offensiveor threatening text messages on a device. Assuming that s. 8 is engaged when police access text messages volunteered by a third party(see R. v.

Orlandis-Habsburgo, 2017 ONCA 649, at paras. 21-35 ), a breach can be avoided if the police obtain a warrant priorto accessing the text messages. As stated in Cole, “[t]he school board was . . . legally entitled to inform the police of its discovery ofcontraband on the laptop” and “[t]his would doubtless have permitted the police to obtain a warrant to search the computer for thecontraband” (para. 73). Similarly, victims of cyber abuse are legally entitled to inform the police, which will typically permit the policeto obtain a warrant.

The police officers will be aware that they should not look at the text messages in question prior to obtaining awarrant. On this scenario, there is no breach of s. 8 and the text messages will be received in evidence. [51] The second scenario is where the police, for whatever reason, access an offensive or threatening text messagewithout obtaining prior judicial authorization.

On this scenario, depending on the totality of the circumstances, the accused may have areasonable expectation of privacy in the text message and therefore have standing to argue that the text message should be excluded.Standing is merely the opportunity to argue one’s case. It does not follow that the accused’s argument will succeed, or that the search ofthe text message will be found to violate s. 8.

While a warrantless search is presumptively unreasonable under s. 8, it is open to theCrown to establish on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was carriedout in a reasonable manner: see R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278. [52] The third scenario arises where a reasonable expectation of privacy in the text messages and a breach of s. 8 areestablished under the second scenario. This does not mean that the evidence will be excluded.

The Crown can argue that the evidenceshould be admitted under s. 24(2). [53] My colleague Moldaver J. “foresee[s]” various other “troubling consequences for law enforcement and theadministration of criminal justice” (para. 180). It is suggested that s. 8 challenges will add to the time required to try cases, and maydisrupt the “balance” between the state’s interest in effective law enforcement and individuals’ expectations of privacy (ibid.). If andwhen such concerns arise, it will be for courts to address them.

There is nothing in the record to suggest that the justice system cannotadapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter. Nor is it disputed that,where scrutiny of an electronic conversation is concerned, the state’s interest in effective law enforcement is outweighed by “the societalinterests in protecting individual dignity, integrity and autonomy”: Plant, at p. 293. Whatever law enforcement’s interest in enjoyingunfettered access to individuals’ text messages, privacy in electronic conversations is worthy of constitutional protection.

That protectionshould not be lightly denied. (

e) Conclusion on Reasonable Expectation of Privacy [54] I conclude that Mr. Marakah’s subjective expectation that his electronic conversation with Mr. Winchester wouldremain private was objectively reasonable in the totality of the circumstances. Each of the three factors relevant to this inquiry in thiscase, place, capacity to reveal personal information, and control, support this conclusion. If the place of the search is viewed as a privateelectronic space accessible by only Mr. Marakah and Mr. Winchester, Mr. Marakah’s reasonable expectation of privacy is clear. If theplace of the search is viewed as Mr.

Winchester’s phone, this reduces, but does not negate, Mr. Marakah’s expectation of privacy. Themere fact of the electronic conversation between the two men tended to reveal personal information about Mr. Marakah’s lifestyle;namely, that he was engaged in a criminal enterprise: see Patrick, at para. 32. This the police could glean when they had done no morethan scrolled through Mr. Winchester’s messages and identified Mr. Marakah as one of his correspondents. In addition, Mr. Marakah

exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. Therefore, Mr. Marakah has standing to challenge the search and the admission of the evidence, even though the state accessed his electronic conversation with Mr. Winchester through the latter’s iPhone. This conclusion is not displaced by policy concerns. [ 55 ] I conclude that in this case, Mr. Marakah had standing under s. 8 of the Charter .

This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards. On the facts of this case, Mr. Marakah had a reasonable expectation of privacy in the electronic conversation accessed through Mr. Winchester’s device; different facts may well lead to a different result. C.

Was the Search Unreasonable? [ 56 ] If Mr. Marakah had standing, the Crown concedes that the search was unreasonable. Though the Crown argued before the application judge that it was a valid search incident to Mr. Winchester’s arrest, the application judge rejected that submission and the Crown did not pursue it before this Court. [ 57 ] It follows that the evidence was obtained by an unreasonable search of the electronic conversation between Mr. Marakah and Mr. Winchester, in violation of Mr. Marakah’s right under s. 8 of the Charter .

The text messages are thus presumptively inadmissible against him, subject to s. 24(2) . D. Should the Evidence Be Excluded? [ 58 ] The application judge did not conduct an analysis under s. 24(2) of the Charter because he ruled against Mr. Marakah on standing. The Crown submits that, if he has standing, the evidence should not be excluded under s. 24(2) .

I cannot agree. [ 59 ] Section 24(2) provides: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 60 ] In this case, consideration of the three lines of inquiry described in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, at para. 71 , leads to the conclusion that the evidence must be excluded.

(1) Seriousness of the Charter -Infringing Conduct [ 61 ] The police’s Charter -infringing conduct was sufficiently serious to favour the exclusion of the evidence. As this Court recently explained in R. v. Paterson , 2017 SCC 15 , [2017] 1 S.C.R. 202, “[t]he court’s task in considering the seriousness of Charter -infringing state conduct is to situate that conduct on a scale of culpability”, with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter rights” at the other: para. 43, quoting Grant , at para. 74.

Here, the actions of police fall toward the more serious end of the spectrum. [ 62 ] The search of Mr. Winchester’s iPhone was not Charter compliant, the application judge concluded, because it was not a valid search incident to his arrest. Though there is no suggestion that Mr. Winchester’s arrest was anything but lawful, the police did not search his iPhone until more than two hours later. It was in the course of this search — which the Crown now concedes was unreasonable — that police searched the electronic conversation between Mr. Winchester and Mr.

Marakah. [ 63 ] The Crown submits that the lawfulness of Mr. Winchester’s arrest diminishes the seriousness of the Charter breach. The Crown argues that there was nothing improper about the seizure of Mr. Winchester’s iPhone incident to his arrest, and notes that the application judge made no finding of bad faith on the part of police. Before this Court’s decision in R. v. Fearon , 2014 SCC 77 , [2014] 3 S.C.R. 621, the Crown says, it was “not so clear” that the police required “an additional warrant” to forensically examine Mr. Winchester’s iPhone. [ 64 ] This reliance on Fearon is misplaced.

In his reasons for the majority in that case, which concerned the extent of the common law power to search incident to arrest, Cromwell J. described the state of the law as follows, at para. 2: At least four approaches have emerged. The first is to hold that the power to search incident to arrest generally includes the power to search cell phones, provided that the search is truly incidental to the arrest . . . . The second view is that “cursory” searches are permitted . . . . A third is that thorough “data-dump” searches are not permitted incident to arrest . . . .

Finally, it has also been held that searches of cell phones incident to arrest are not permitted except in exigent circumstances, in which a “cursory” search is permissible. [Emphasis in original; citations omitted.] [ 65 ] None of these approaches would have justified the search of Mr. Winchester’s iPhone. As the application judge noted, at para. 114 of his reasons, “there is no evidence . . . as to why Winchester’s phone could not have been searched at the time of arrest and at least rendered safe [or] of why the delay of more than two hours occurred before the phone was looked at”.

The forensic examination of Mr. Winchester’s iPhone breached the Charter not only because of its extent, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest. Even if the police acted in good faith in waiting more than two hours to search the iPhone, their error cannot be described as reasonable: see Paterson , at para. 44 , citing Buhay , at para. 59 . The law in this regard was clear before Fearon , just as it is now. In the absence of any explanation of the delay, searching Mr.

Winchester’s iPhone without a warrant two hours after his arrest was “reckless and showed an insufficient regard for Charter rights”: R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 24 .

[66] The police committed a serious breach of the Charter in examining Mr. Winchester’s iPhone. That this was aninfringement of Mr. Winchester’s s. 8 right, not Mr. Marakah’s, does not detract from its seriousness. Of course, the police also breachedMr. Marakah’s s. 8 right directly when, in their search of Mr. Winchester’s iPhone, they examined the contents of the electronicconversation between the two men. This, too, lacked any reasonable pretext of lawful authority. I conclude that the conduct of police inaccessing and searching the electronic conversation through Mr. Winchester’s iPhone was sufficiently serious to favour the exclusion ofthe evidence.

(2) Impact of the Charter-Infringing Conduct on Mr. Marakah’s Charter-Protected Interests [67] The impact of the Charter-infringing conduct on Mr. Marakah’s Charter-protected privacy interest was significant.Though, as LaForme J.A. acknowledged, Mr. Marakah had no independent interest in Mr. Winchester’s iPhone, he nonetheless had aconsiderable, Charter-protected privacy interest in his and Mr. Winchester’s electronic conversation, the contents of which the illegalsearch of Mr. Winchester’s iPhone revealed. That electronic conversation revealed private information that went to Mr.

Marakah’sbiographical core, as I have described. 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. Theimpact on Mr. Marakah’s Charter-protected interest was not just substantial; it was total. [68] I recognize that, in certain circumstances, sharing control of subject matter diminishes an individual’s privacyinterest therein; because Mr. Marakah shared the ability to control access to the electronic conversation with Mr.

Winchester, Mr.Marakah’s reasonable expectation of privacy was diminished (see Cole, at paras. 58 and 92), and that the impact of the search must beassessed accordingly: see Paterson, at para. 49; Grant, at para. 78; Buhay, at para. 65; R. v. Belnavis, (SCC), [1997] 3S.C.R. 341, at para. 40. Even so, to argue against the evidence’s exclusion on this basis would re-introduce at the s. 24(2) stage the verysort of risk analysis that this Court rejected in Duarte.

It cannot be that the impact on an accused’s Charter-protected interests is lessserious when an electronic conversation is illegally accessed through someone else’s phone than when the same conversation — inwhich the accused has the same Charter-protected interest — is illegally accessed through the accused’s own phone. A search mayimpact other, different Charter-protected interests of the accused if it is his phone that is examined.

But, so far as the impact on theaccused’s privacy interest in the electronic conversation is concerned, the two scenarios just described are indistinguishable. [69] Control of access to an electronic conversation is, by definition, shared by two or more participants. If this fact issufficient to negate the impact of an illegal search of that conversation, then this factor will tend to favour the admission of the evidencein any case where an electronic conversation has been illegally searched. This can only undermine the very privacy interest that s. 8 ofthe Charter protects. This approach must be rejected.

I conclude that the impact of the Charter-infringing search on Mr. Marakah’sCharter-protected privacy interest was considerable. This factor favours exclusion.

(3) Society’s Interest in the Adjudication of the Case on Its Merits [70] Society’s interest in the adjudication of the case on its merits is significant. The SMS messages offer highly reliableand probative evidence in the prosecution of a serious offence. Exclusion of the messages “would result in the absence of evidence bywhich the appellant could be convicted”: Plant, at p. 301. [71] This factor favours admission.

(4) The Evidence Should Be Excluded [72] As the Court recognized in Grant, at para. 84, “while the public has a heightened interest in seeing a determinationon the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach,particularly where the penal stakes for the accused are high”. Though the exclusion of the evidence would eviscerate the Crown’s caseagainst Mr.

Marakah on serious charges, “[i]t is . . . important not to allow . . . society’s interest in adjudicating a case on its merits totrump all other considerations, particularly where . . . the impugned conduct was serious and worked a substantial impact on theappellant’s Charter right”: Paterson, at para. 56. That is this case. [73] On balance, I conclude that the admission of the evidence would bring the administration of justice into disrepute. Itmust therefore be excluded under s. 24(2) of the Charter. E. Should the Proviso Apply? [74] The Crown submits that, even if the text messages obtained from Mr.

Winchester’s iPhone should be excluded, theappeal should nonetheless be dismissed on the basis of the “curative proviso” in s. 686(1)(b)(iii) of the Criminal Code. The proviso canapply only where the Crown satisfies the court “that the verdict would necessarily have been the same if [the] error had not occurred”: R.v. Wildman, (SCC), [1984] 2 S.C.R. 311, at p. 328, quoting Colpitts v. The Queen, (SCC), [1965] S.C.R.739, at p. 744. The Crown submits that this condition is satisfied in this case because, it says, even if the text messages obtained fromMr.

Winchester’s iPhone should have been excluded, the same text messages from Mr. Marakah’s BlackBerry should not have been.According to the Crown, the application judge did not err in admitting the text messages from Mr. Winchester’s phone; he erred inadmitting the text messages from the wrong phone — he should have admitted them from Mr. Marakah’s BlackBerry, instead. TheCrown asks this Court to reverse both rulings, conclude that the text messages from Mr. Marakah’s BlackBerry should have beenadmitted, and, by operation of the proviso, allow his convictions to stand. [75] I would not entertain this submission.

It is not open to this Court to speculate as to whether the application judgemight have ruled differently on the admissibility of the text messages from Mr. Marakah’s BlackBerry if he had not erred in admittingthe text messages from Mr. Winchester’s iPhone. The application judge made two different rulings based on his assessment of twodifferent searches. That the searches both revealed the same text messages does not make the rulings any less distinct. Nor is it within thescope of this appeal to revisit the application judge’s evidentiary decisions at large. As Doherty J.A. explained in R. v.

James, 2011ONCA 839, 283 C.C.C. (3d) 212, at para. 56:

The application of the proviso must be considered in the context of the evidence heard by the jury, not the evidence it might haveheard had the trial judge made different rulings. To consider excluded evidence, even wrongly excluded evidence, in deciding whetherthe proviso should be applied, is to apply the proviso to a different case than the one heard by the jury. [Emphasis added.] [76] The Crown notes that the application judge’s reasons for excluding the text messages from Mr. Marakah’sBlackBerry referred to his ruling admitting the text messages from Mr. Winchester’s iPhone.

The application judge said, at paras. 121-23: Given the seriousness of the offences involved there is no question that society has a significant interest in adjudication of the chargesagainst Mr. Marakah on the merits. I do not understand, however, that the evidence in issue is crucial to the Crown’s case. . . . The key evidence the Crown seeks to adduceat trial from what was seized [from Mr. Marakah’s residence] are the text messages . . . recovered from Mr. Marakah’s phone. However,the text messages in question are also on Winchester’s iPhone and I have held that Mr.

Marakah has no standing to challenge its seizureunder the Charter. Accordingly, I do not consider that exclusion of the evidence in issue would result in the termination of the Crown’scase. Having regard to all of the three [Grant] factors discussed above, it is my conclusion that the admission of the evidence seized in Mr.Marakah’s residence at trial would bring the administration of justice into disrepute. Accordingly, the evidence from what was seized atMr. Marakah’s residence . . . shall be excluded. [Emphasis added.] [77] This cross-reference, the Crown says, makes this a case like R. v.

C. (W.B.) (2000), (ON CA),142 C.C.C. (3d) 490 (Ont. C.A.). At trial, the Crown sought to introduce evidence that was contained in two separate documents, atranscript and a hearsay statement. The evidence in the two documents was substantially the same. The trial judge excluded the transcriptand admitted the hearsay statement. A majority of the Court of Appeal concluded that both rulings were wrong and that the provisoapplied, because, as Weiler J.A. reasoned for the majority, “[t]he trial judge did not commit two separate compartmentalized errors.

Hecommitted one global error respecting the form as to which to admit similar fact evidence or evidence of prior discreditable conduct”(para. 67). This Court unanimously agreed that the proviso was properly applied: 2001 SCC 17, [2001] 1 S.C.R. 530. [78] Like the trial judge in C. (W.B.), the application judge in the case at bar admitted the evidence at issue from onesource (Mr. Winchester’s iPhone) and excluded the same evidence from another source (Mr.

Marakah’s BlackBerry) in the same ruling.In both cases, the reasons given for excluding the evidence from one source referred to the decision to admit it from the other. But thepresent case must be distinguished nonetheless. In C. (W.B.), the trial judge, having (erroneously) admitted the hearsay statement,“excluded the . . . transcript on the basis that it had become unnecessary”: C. (W.B.) (C.A.), at para. 4 (emphasis added). In other words,the trial judge’s rulings were mirror images of one another; the transcript was excluded because the statement was admitted. The samecannot be said here.

The application judge admitted the text messages from Mr. Winchester’s iPhone because he (erroneously)concluded that Mr. Marakah lacked standing to challenge the constitutionality of the police conduct that uncovered them. Theapplication judge excluded the text messages from Mr. Marakah’s BlackBerry on an entirely separate basis. He determined that thewarrant for the search of Mr. Marakah’s residence — in the course of which his BlackBerry was seized — was invalid. Though theapplication judge acknowledged the admission of the text messages from Mr.

Winchester’s iPhone in his ruling excluding the textmessages from Mr. Marakah’s BlackBerry, it simply cannot be said that the application judge excluded the text messages from Mr.Marakah’s BlackBerry because the text messages from Mr. Winchester’s iPhone would be admitted. Indeed, as I have alreadyconcluded, the text messages from Mr. Winchester’s iPhone should have been excluded even though the text messages from Mr.Marakah’s BlackBerry were not admitted, notwithstanding society’s interest in the adjudication of the case on the merits.

The tworulings in this case cannot be construed as a single error, and so C. (W.B.) does not assist the Crown. [79] Here, the application judge’s error was in admitting the text messages from Mr. Winchester’s iPhone. Without theerroneously admitted evidence obtained from Mr. Winchester’s iPhone, Mr. Marakah would have been acquitted. He was convictedinstead. To allow that conviction to stand would be a miscarriage of justice. The proviso does not apply. III. Conclusion and Disposition [80] The application judge and the majority of the Court of Appeal erred in holding that Mr.

Marakah had no standing tochallenge the admission of the SMS messages obtained from Mr. Winchester’s iPhone. Mr. Marakah reasonably expected that hiselectronic conversation with Mr. Winchester would remain private, even though it could be accessed through Mr. Winchester’s mobiledevice. That reasonable expectation was protected by s. 8 of the Charter. [81] The Crown concedes that, if Mr. Marakah had standing, the search was unreasonable and violated Mr. Marakah’sright under s. 8. It follows that the evidence is prima facie inadmissible. Since I conclude that its admission against Mr.

Marakah wouldbring the administration of justice into disrepute, it must be excluded under s. 24(2) of the Charter. The curative proviso does not apply. [82] I would allow the appeal, set aside the convictions and enter acquittals on all charges. The following are the reasons delivered by [83] Rowe J. —

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to besecure against unreasonable search or seizure.” To ground a claim under s. 8, individuals must establish that they have a reasonableexpectation of privacy in the subject matter being searched. Once that expectation is established, the individual claimant gains standing,which allows them to challenge the lawfulness of a search or seizure and to seek to exclude unlawfully obtained evidence under s. 24(2)of the Charter. As noted by the Chief Justice, however, “[s]tanding is merely the opportunity to argue one’s case. It does not follow that

the [claimant’s] argument will succeed, or that the search . . . will be found to violate s. 8” (para. 51). [84] The existence of a reasonable expectation of privacy depends on the “t

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