Law Times

Law Times • may 14, 2018 Page 9 www.lawtimesnews.com More technology cases may arise Rulings help define privacy expectations BY MARG. BRUINEMAN For Law Times A pair of recent Supreme Court of Canada deci- sions sets the founda- tion for the reasonable expectation of privacy in the digital age. The rulings provide guidance in both criminal and civil law applications, say law- yers. In R. v. Marakah, along with the companion case R. v. Jones, the country's highest court found that the accused men had a reasonable expec- tation of privacy and police couldn't access their texts with- out the proper authority. In Marakah, the court ex- tended that expectation to the accused man's texts that were found on someone else's phone. "I think the consensus view in the legal community certain- ly is that the decision is going to have far-ranging implications for the full range of electronic communications that currently exist and are being developed . . ." says Toronto criminal law- yer Mark Sandler, a partner at Cooper Sandler Shime & Berg- man LLP, who represented Nour Marakah. "The real issue is going to be, 'How tightly drawn is the net go- ing to be around reasonable ex- pectation of privacy?'" At issue in Marakah was whether the search and seizure of a text message conversa- tion about illegal firearms was valid. The ruling stated the ac- cused, known as "M," had sent text messages to an accomplice, known as "W," about purchasing firearms. The ruling said police got warrants and seized both their phones and found text mes- sages that were used as evidence against "M." However, the ac- cused argued that the text mes- sages were inadmissible because their use as evidence violated M's rights under s. 8 of the Char- ter, which limits unreasonable search and seizure. Ultimately, the court ruled in this case that the accused had a reasonable expectation of pri- vacy and the firearms charges he faced were stayed. The court ultimately left open what kind of messages might be captured by this deci- sion. Sandler expects the court to eventually weigh in on email messages, which he likens to letters, while he sees electronic messages more closely related to conversations. Shaun Brown, an Ottawa partner with nNovation LLP, where he practises privacy and cybersecurity law, sees the court's majority decision as a de- parture from previous case law. The same court found in R. v. Edwards in 1993 that the ac- cused could not claim a reason- able expectation of privacy be- cause he denied the drugs found in someone else's apartment were his. Brown attributes the change of direction in the top court to the justices trying to see the issue from the perspective of the younger generation, their reliance upon these devices and the use of text messaging as a private form of communication. Control was also an issue be- cause the accused had deleted the messages from his phone and asked the recipient of the messages to delete them as well, which Brown says is a subjective expectation of privacy. But there was a strong dis- senting opinion that once the message is sent control is lost. Justice Michael Moldaver raised the concern that the pro- tections offered in Marakah could be extended to a situa- tion involving a sexual predator sending a threatening message that is turned over to police. "There's two perspectives on it. My inclination is that you're going to see courts in the future trying to distinguish facts from this case," says Brown. He suspects that other fact evidence might lead to a differ- ent conclusion. He wonders if the accused hadn't asked the recipient to delete the messages or if several people were included in the text conversation if the individual's expectation of privacy would have been diminished. "There are a lot of ways that the totality of the circumstances could potentially lead to a differ- ent conclusion," says Brown. He says he expects that as courts face more technology- related cases that the justices will look at the expectations and perspectives of the younger gen- erations and their increased reli- ance upon newer technology. He points to Jane Doe 464533 v. N.D., in which a man was ordered to pay damages for posting a sexually explicit video of his former girlfriend to a porn site without her consent. The decision was quashed and sent back to court so he could pres- ent a defence, but Brown says that foreshadowed the decision in Marakah. Molly Reynolds, who is part of the team representing Doe, says revenge porn cases such as Doe are part of an emerging area in civil litigation where a common defence is that the re- ceiver of the intimate image has the right to do with it as he likes. She adds that a person should still have the reasonable expec- tation of privacy even if the in- formation is in the hands of the recipient. "[Marakah] really says 'No, that's not right,'" says Reynolds, whose practice with Torys LLP in Toronto focuses on privacy litiga- tion, anti-spam and e-discovery. "Getting guidance from the Supreme Court on this expecta- tion of privacy not being entirely removed once you've sent some- thing electronically will really reinforce that and hopefully will help develop the law in the civil context there," she says. And while the recent cases re- late to a variety of text messages and other person-to-person communications, there is some question about how broadly the decision will be applied, says David Elder, who practises com- munications, competition and privacy law with Stikeman El- liott LLP in Ottawa. "Unfortunately, this is one of those cases where we don't really know. We don't know the full extent or the implications of the decision," says Elder. The decision leaves room to allow that perhaps not all elec- tronic messages will always at- tract a reasonable expectation of privacy. How that conversation be- tween people takes place, if the accused had a direct interest matter, if the subject had a rea- sonable expectation of privacy and whether that expectation was objectively reasonable all play a role in the final decision, says Elder. The court considered a range of factors to assess the reason- ableness of that expectation. Elder expects the decisions of other courts will depend on the individual circumstances of each case. "It may be a very different result if the search was in some- body's home as opposed to a public place," he observes. "I don't think we'll ever have a universal rule that there either is or isn't a reasonable expectation of privacy in all electronic communications. "I think it's always going to depend on the type of commu- nication, its nature, who had ac- cess to it [and] where the seizure took place." LT FOCUS Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. CRAIG BROWN | WENDY MOORE MANDEL | STEPHEN BIRMAN Untitled-2 1 2018-05-08 4:54 PM Mark Sandler says a recent SCC ruling will have 'far-ranging implications for the full range of electronic communications that currently exist and are being developed.' I don't think we'll ever have a universal rule that there either is or isn't a reasonable expectation of privacy in all electronic communications. David Elder

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