Law Times

August 8, 2016

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CHOOSE FROM CANADA'S TOP MEDIATORS AND ARBITRATORS 416.362.8555 | adrchambers.com W.A. Derry Millar Derry has over 40 years of legal and neutral experience. His expertise includes commercial, aviation, estates, environmental, insurance, product liability, intellectual property and real estate matters. ADR_LT_Mar14_16.indd 1 2016-03-09 8:24 AM Follow LAW TIMES on www.twitter.com/lawtimes BY ALEX ROBINSON Law Times T he Ontario Court of Appeal has ruled that sent text messages seized from a recipient's phone can be used as evidence against the sender in court. The court rejected the appeal of Nour Marakah, convicted of gun traf- ficking offences, who argued that his text messages were inappropriately ob- tained and should have been excluded. In a 2-1 decision, the court sided against him saying he did not have a "reasonable expectation of privacy" in the messages — a ruling lawyers say will have implications for privacy and is likely headed to the Su- preme Court of Canada. "If you and I are both suspected of drug trafficking, they can just grab your phone and get the text messages I sent you and not concern themselves with a warrant and use those against me," says Susan Chapman, a partner at Ursel Phil- lips Fellows Hopkinson LLP, who repre- sented the Criminal Lawyers Association as interveners in the case and supported Marakah's position. In pre-trial proceedings, Marakah suc- cessfully challenged the inclusion of evi- dence seized at his home and on his own cellphone through a s. 8 Charter challenge. He, however, was unsuccessful at chal- lenging the inclusion of text messages from the phone of a co-accused, Andrew Winchester. The lawyers representing Marakah have applied for leave to appeal the deci- sion to the Supreme Court of Canada. Writing for the majority in the deci- sion, Justice James MacPherson said that Superior Court Justice Laurence Pattillo, who oversaw the pre-trial proceedings, did not err in his conclusion. "There is, in my view, a lack of empiri- cal evidence to support a conclusion that senders of text messages have a presump- tively reasonable expectation, from an objective standpoint, that their text mes- sages will remain private in the hands of the recipient," he wrote. "In fact, there are many examples of behaviour in text messaging (and in oth- er forms of communication) that suggest that senders are alive to the fact that their communications may no longer be pri- vate once sent or made." In his ruling, Pattillo said the sender of a text message has a reasonable expec- tation of privacy after it was sent, but not once it reaches its intended recipient. The judge said that there could no longer be an expectation of privacy at this point as "it is no longer under the control of the Case launches testing anti-SLAPP laws BY SHANNON KARI For Law Times A n Ontario Superior Court judge will hear arguments this week in what is believed to be one of the first tests of the prov- ince's new "anti-SLAPP" legislation as it relates to a defamation action. A Toronto-area resident is ask- ing the court to throw out a lawsuit initiated by a former Richmond Hill councillor over comments made in an advertisement in a lo- cal newspaper and on a Facebook page, in a dispute over a proposed residential development. The unusual facts in the case include allegations that the news- paper advertisement compared him to Al Capone and that a pic- ture of the hip-hop performer Snoop Dogg on the Facebook page was intended to disparage the pol- itician. Frank Zeppieri is seeking the dismissal of a $1-million defama- tion action launched by Nick Papa, a long-time councillor in Rich- mond Hill until his defeat in the 2014 municipal election. The motion is based on a new section of the provincial Courts of Justice Act that was enacted last fall after the Ontario government passed the Protection of Public Participation Act. "The facts of this case are pre- cisely what the Ontario legislature had in mind when it enacted the PPPA," state written arguments filed with the court in support of Zeppieri's motion, which is sched- uled to be heard Aug. 10. "The statements and publica- tions made by Mr. Zeppieri, which are the subject matter of the within defamation Claim, were all made in relation to matters of public interest that are of the highest im- portance — a proposed condomin- ium development in a residential neighbourhood and a municipal election," the written submissions state. Iain MacKinnon, a Toron- to-based lawyer representing Zep- pieri, says the motion is consistent FEDS UNDER FIRE Consultation needed on contract, say lawyers P3 LEGAL TECH NOW Virtual courts way of the future? P5 FOCUS ON Corporate/Commercial Law P8 See Advertisement, page 4 See Judge, page 4 PM #40762529 $5.00 • Vol. 27, No.25 August 8, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Susan Chapman says text messages are unvarnished, conversational exchanges that are the modern-day equivalent to telephone calls. Photo: Robin Kuniski Court finds they can be used as evidence Sent text messages not private: ruling & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Iain MacKinnon says an Ontario Superior Court motion is consistent with the purpose of the new statute and freedom of expression guarantees in the Charter.

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