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The Canadian Bar Association

Kristina Yeretsian

Privacy

The law is failing at meeting our privacy expectations in a digital world

By Kristina Yeretsian March 16, 2018 16 March 2018

The law is failing at meeting our privacy expectations in a digital world

 

The interaction between digital proliferation and the law is growing increasingly complex, as courts are confronted with fundamental questions about our reasonable expectations of privacy in an online world.

The Supreme Court of Canada’s recent ruling in R. v. Marakah is a case in point. Marakah centers on text messages, and whether it is reasonable for a sender to have an expectation of privacy over messages once they have been received in the recipient’s phone. The appellant, Nour Marakah, sent text messages regarding illegal transactions in firearms. The police seized both Mr. Marakah’s BlackBerry and his accomplice’s iPhone, and found incriminating text messages. The police charged him and sought to use the text messages as evidence against him. In one of her final criminal law decisions, then Chief Justice Beverley McLachlin wrote for the majority, concluding that under s. 8 of the Charter of Rights and Freedoms, people have a reasonable expectation of privacy as to the contents of the text messages they send. McLachlin’s reasoning was consistent with the analysis of the United States’ Chief Justice John Roberts in a 2014 ruling, Riley v. California, where his court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

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