Two Supreme Court of Canada rulings last week focused on expectations of privacy in text messages. In one case, a production order used to gather text messages that served as evidence against an accused man stood, but in another case, R. v. Nour Marakah, the SCC ruled the text messages had been improperly seized.
In R. v. Tristin Jones, a man found guilty of drug and gun-related offences challenged the convictions after police used text messages from his Telus account as evidence against him. He argued that a police production order for the texts violated his s. 8 right under the Charter, which prohibits unreasonable search and seizure. A trial judge didn’t accept the Charter argument, and convicted Jones.The SCC also ruled the production order should be upheld.
Patrick McCann, who is counsel with Fasken Martineau DuMoulin LLP in Ottawa and who acted for Jones at the SCC, says he was disappointed with the majority’s decision that seizing text messages from a service provider after they’ve been delivered is not an intercept under Part VI of the Criminal Code, which governs wire tap provisions.