A few weeks ago, the Supreme Court released its decision in Marakah. The Chief Justice, writing for the majority, concluded that the accused retained a reasonable expectation of privacy in his own text messages on someone else’s phone. She noted that control is not an absolute indicator of a reasonable expectation of privacy, but is only one factor to be considered in the totality of the circumstances.
Justice Moldaver, in dissent, disagreed that an accused could claim a reasonable expectation of privacy in these circumstances. He criticized the majority approach on the grounds that it, in his view, necessarily led to one of two unworkable conclusions: “Either all participants to text message conversations enjoy a reasonable expectation of privacy, or criminal justice stakeholders, including trial and appellate judges, are left to decipher on a case-by-case basis — without any guidance — whether a claimant has standing to challenge the search of an electronic conversation.” He also warned that under the majority approach, sexual predators would retain privacy interests in text messages sent to their own victims.
The latter concern about child predators is unlikely to materialize given that waiver would presumably apply in cases where one of the participants to a conversation voluntarily provided the information to police (which was not the case in Marakah). For instance, both spouses enjoy a privacy interest in the family home, but police can obviously still enter if one spouse invites them inside to arrest the other. But even leaving this specific issue aside, the dissent also seems to generally take for granted that it would be a disaster if everyone enjoyed reasonable expectations of privacy in shared text messages or other shared spaces. It’s worth unpacking that idea.
If the defence establishes a reasonable expectation of privacy, seized evidence isn’t automatically excluded. Instead, the Crown can still establish the legality of a “search” by showing that the police actions were both themselves reasonable and authorized by a reasonable law. Even if the Crown fails to do this, the ultimate admission or exclusion of the evidence still depends on weighing various policy factors under s. 24(2) of the Charter. In other words, there are multiple failsafes in place to ensure the guilty don’t escape punishment for frivolous reasons.
Someone unfamiliar with Canadian criminal law might even ask: Wait, shouldn’t the police always have to act reasonably and in accordance with reasonable laws? It’s not a bad question. If more people are found to have reasonable expectations of privacy and corresponding s. 8 standing, the result will simply be that the Crown will have to show that police actions were reasonable and authorized by reasonable laws in more cases. This doesn’t sound like a disaster.
This issue is not going away and is only going to be more important in coming years. Our lives are becoming more spatially and technologically interconnected, leading to more non-exclusive or partial privacy interests. People who send texts to others, or post messages in a group chats, or post on semi-private social media, understand that other people can see the messages. But they probably don’t expect the police to be reading. Another area where this issue arises frequently is in relation to common areas in condominium buildings. Residents of these buildings understand that other people have access to the common areas, but probably don’t expect the police to be sneaking around to spy on them.
Justice Moldaver is right that there are two ways forward. One is to develop increasingly complicated legal tests to determine when individuals do or do not have privacy interests in shared spaces like condominiums common areas or text messages on other people’s devices. Courts are already grappling with these multi-factor tests and it is not an easy task (see, for example, the White case of the Ontario Court of Appeal, dealing with privacy in shared condominium spaces). But there is also another way forward, hinted at by the Marakah dissent. The other way is simply to lower the bar across the board and recognize that essentially everyone will have threshold privacy interests in selectively shared spaces or data. The sky won’t fall if we do that. The only thing that will happen is that police will have to act reasonably and in accordance with reasonable laws in more cases. In other words, arguments about standing will be replaced by those we should be having instead: arguments about the propriety of state conduct.