Law Times

Page 4 August 8, 2016 • LAw times www.lawtimesnews.com NEWS sender" and it is "under the com- plete control of the recipient to do with what he or she wants." The judge also argued that text messages are more akin to e- mails or letters than phone calls. Chapman, however, says text messages are real-time, un- varnished, conversational ex- changes that are the modern-day equivalent to telephone calls. "My teenage son uses his cell- phone text messaging the way I would have traditionally at his age have used a telephone," she says. "They don't dial. They text message one another." In his dissent, Justice Harry LaForme argued the information found on Winchester's phone should not be included as its sei- zure infringed on his Charter right to be "secure against unrea- sonable search or seizure." "In these circumstances, the court must distance itself from the pattern of disregard for Charter rights and it cannot do that if it gives the effect to soci- ety's interest in having an adju- dication on the merits," he said. "Therefore, the copies of the text messages obtained from Winchester's phone should be excluded." Lawyers representing Mara- kah argued that he did have a reasonable expectation to privacy on the text messages regardless of what phone the messages were on. Citing R. v. Telus Commu- nications Co., they said text messages are private communi- cations akin to telephone calls and that the police's seizure of the text messages was an inter- ception of that communication. The Telus Supreme Court decision found police must ob- tain a wiretap authorization — instead of a general warrant — in order to compel a service provider to share a user's text messages with them. In their factum, Crown at- torneys argued the Telus ruling did not apply as it did not involve text messages on a recipient's phone. David Fraser, a Halifax pri- vacy lawyer at McInnes Cooper LLP, who was not involved in the case, questioned why the unlaw- ful seizure by police of text mes- sages would be treated any dif- ferently than a phone call. "I would think that electronic communications like that would attract more of an expectation of privacy than something that's in paper that can be easily lost, for example. Text messages are a bit more transitory," he says. "But I don't think there is any- thing magic about a text message compared to an e-mail com- pared to a phone call," he added. The court joined Marakah's proceedings with those of two other appeals that dealt with the same issue, and heard them all at the same time. All three appeals were dismissed in the ruling. In those cases, Jermaine Smith and Tristin Jones were convicted of gun and drug charges in proceedings that in- cluded text messages that were obtained by the police. They argued a wiretap authorization was required to obtain the texts. The Court of Appeal's rul- ing contradicted a 2015 decision in the B.C. Court of Appeal, R v. Pelucco, which said there is a reasonable expectation of priva- cy when sending text messages. In that case, the accused had arranged to sell cocaine to some- one via text message, not know- ing that the police had actually stopped the recipient of the mes- sages. The police continued the conversation. The court determined that the accused's right to privacy had been breached, as a "sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient." LT Continued from page 1 Judge says text seizure infringes on Charter right with the purpose of the new stat- ute and freedom of expression guarantees in the Charter. "Mr. Zeppieri believes that everyone should have the right to express their political views, especially during an election campaign, without fear of retri- bution for expressing those views," explains MacKinnon, a lawyer at Linden & Associates in Toronto. Papa launched the action last year. The alleged defamation is based primarily on a newspaper advertisement taken out by Zep- pieri in a local publication and a Facebook page he posted — both before the last election. The newspaper advertise- ment has a picture of Papa, with copy that states, "On October 27 th , show him he is unwanted." The word unwanted is printed over Papa's face. Readers are asked to Google a phrase that would bring them to the Facebook page, which has the same title as the advertise- ment in the newspaper. As well, it has a picture of Snoop Dogg. The statement of claim issued by Papa alleges Zeppieri, who is the head of a local residents' association, misrepresented the politician's position about the proposed development, which ultimately never went ahead. The "unwanted" adver- tisement and the content on Facebook is defamatory and intended to disparage Papa's reputation, the court document states. "The Facebook page expressly or by implication suggests that Papa is 'wanted' for criminal conduct and associates Papa with the rap singer 'Snoop Dogg' who is known as a person who uses drugs and has been associ- ated with criminal activity," says the statement of claim. One of the documents filed with the court by Papa in support of his action is a reproduction of a photo issued by the FBI in the 1930s with the word "wanted" in bold type over a photo of the no- torious gangster Al Capone. An affidavit filed in court by Papa also claims that "as a conse- quence of Zeppieri's campaign to ruin my reputation in the election after 18 years as a councillor," he was defeated in 2014. None of the allegations made by either side in the legal action has been proven in court. (The statement of defence filed by Zeppieri says that the picture of Snoop Doog was put on the Facebook page simply to try to increase traffic to the site.) Paul Starkman, who heads Starkman Barristers in Rich- mond Hill and represents Papa, declined to comment as the court is about to hear the motion. The provincial government enacted the anti-SLAPP or stra- tegic lawsuits against public par- ticipation law last year. 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