What you text may be used against you in a court of law. The Ontario Court of Appeal, in R. v. Marakah, 2016 ONCA 542 (CanLII) has come to the opposite conclusion as that of the BC Court of Appeal in R. v Pelucco, and has found that texts, once received by the recipient, were not reasonably considered to be private by the sender. Both cases involved parties who communicated by text. In each case, the accused brought a s.8 Charter challenge claiming a privacy interest in the texts they sent that were retrieved from the phone of the recipient. The Court in BC said yes – Ontario just said no.
These decisions turn on the Courts’ assessment as to whether it is objectively reasonable that a text sender can consider a text message private once received by a third party. The conflicting rulings turn on what can reasonably be expected to happen with texts once they are received. Was it objectively reasonable for the accused to believe the texts would be kept private?
In the BC decision, Mr. Justice Groberman found that “it was not usual for the [text] conversation to be printed, archived, or forwarded to others. In ordinary circumstances, the sender and recipient expect the record to be transitory, and not to be shared. … [I] t seems to me that the social norm is to expect that text messages remain private communications between the sender and recipient.” (Paras 64-65)
However, in Ontario, the Court rejected the blanket conclusion that texts were private, on the basis that “there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.” (Para 71)
The Court even relies on what kids are taught in school to drive the point home, because “the lack of privacy over electronic messages once in the hands of the recipient is a message reinforced in Ontario’s school curriculum on health and safety…”. (Para 73)
These cases turn on different assessments of what is reasonable to expect in the new communication reality, both have strong dissents, and Marakah is now under appeal to the SCC. There are arguments to be made for each position. However, regardless of the ultimate outcome, when it comes to protecting one’s privacy, the best course of action is to play it safe. Assume that everything you text, post, Snapchat, Instagram and tweet, etc. has the potential to be used against you, whether in a playground, court, or a job interview.
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