Court protected our privacy

What was the Supreme Court thinking when it let a man convicted of trafficking handguns go free, and all because of a seeming technicality over his incriminating text messages?

Well, you can bet that the five judges who acquitted Nour Marakah of firearms offences earlier this month weren’t trying to make life easier for him.

They were trying to make life fairer for you and everyone else in Canada, according to our Charter of Rights and Freedoms.

Indeed, what might look like a technicality in one case touches on important principles that guard our privacy and protect us from unreasonable search and seizure.

For decades, Canadians have lived secure in the knowledge they could freely communicate by telephone without police arbitrarily or unilaterally tapping into their conversations.

Such action on the part of authorities could only happen with the prior permission of a court of law and with due consideration of rights.

But in this high-tech era of texts, tweets, emails and Facebook, it’s hard to know what rules apply — both for police and the people.

In Marakah’s case, a lower court originally convicted him based on the evidence of text messages he had sent to a friend’s mobile phone and which Toronto police accessed.

His messages were clear about his intentions. Case closed, the lower court ruled. Not so fast, the Supreme Court replied. In her reasons for the high court’s majority decision, Chief Justice Beverley McLachlin said that while Marakah had written the text messages that were used as evidence against him, he expected the electronic conversation to remain private and had repeatedly asked recipient Andrew Winchester to delete those messages.

The Supreme Court rightly concluded the police should have obtained a judicial warrant before searching Winchester’s phone and reading Marakah’s messages.

Evidence improperly obtained had to be excluded and, therefore, the conviction was improperly rendered.

Many Canadians, we suspect, will find this outcome frustrating and annoying.

Shouldn’t police and our courts do all they can to hold lawbreakers accountable for their actions? Shouldn’t our laws promote such an outcome?

But if it was their privacy being invaded, if police routinely tapped into their telephone conversations or bugged their homes without special permission and simply because the police wanted to, most Canadians, we suspect, would be outraged.

It’s not that people routinely have something to hide. It’s that they have a right to privacy, except in exceptional circumstances and when specific steps have been taken.

To be sure, the high court also cautioned that it made its decision based on the facts of Marakah’s case and in other circumstances the outcome might be different.

Indeed, in a second ruling released the same day, the Supreme Court upheld the conviction in a gun and drugs case where Ottawa police had obtained a production order to seize text messages stored on a Telus server. These messages, the court said, were lawfully obtained.

As the digital world transforms the living one, it’s good to see our high court offering wise guidance.