We all have private spaces and personal information that we care about, whether it’s your banking information, conversations with your doctor, text messages to your sister, discussions in the corporate boardroom, or the contents of the drawer in your bedside table. We choose to let some people into these personal spaces, and exclude others.
When we lose control over our personal information and private spaces, it impacts our human dignity and our freedom as Canadians.
However, law enforcement frequently seeks access to these private spaces to collect evidence and investigate crimes, and so a balance must be struck between public safety objectives and our rights. Traditionally, warrants granted by independent judges have been the primary tool for ensuring that police search powers are used appropriately and reasonably. However, this balance is constantly being challenged by changes in the law and technology.
Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?
When Nour Marakah was accused of various crimes, text messages he had sent were used as evidence against him. Text messages on his phone were deemed inadmissible because using them would violate Nour’s right to be free from search and seizure; so the investigating team got an iPhone belonging to another person who had received texts from Nour, and attempted to use them as evidence.
Oral communications in Canada are protected and require a warrant to obtain, and with more and more people using texting to communicate, we argued that written communication should also be allowed the same privacy. Advancements in technology make it possible to negate privacy, but they don’t make it legal.
The Court found that there had been a breach of Marakah’s Charter rights in this case. Without those texts, he would have been acquitted and to allow the conviction to stand would be a miscarriage of justice.
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