Top court ruling sows division
Decision protects predators: dissenting judge
In one of her final decisions in the criminal law, Supreme Court of Canada Chief Justice Beverley McLachlin has sown the seeds of chaos, says one of her colleagues.
Judge Michael Moldaver was writing in dissent of the majority’s 5-2 decision, written by the departing McLachlin and released Friday, in a case called R v Marakah.
McLachlin heard her last case on the bench Thursday and formally retires next week.
The Marakah case revolves around text messages, and whether it’s reasonable for a sender to have a reasonable expectation of privacy over messages once they land in a recipient’s phone.
McLachlin in effect said that it is; Moldaver said that’s absurd.
In a savage dissent, Moldaver says McLachlin’s decision will add to “the complexity and length of criminal trial proceedings” in a system already stressed to breaking, overburden police and prosecutors and “leads inexorably” to the conclusion that sexual predators who send explicit or threatening messages to a child may be able to prevent those messages being seized by police without a warrant — even if the child herself or a parent hands over the phone with the messages.
Interestingly, Judge Malcolm Rowe, who sided with the majority, nonetheless said he shares Moldaver’s concerns about “the consequences” of the decision.
“As Justice Moldaver suggests,” Rowe wrote, “this would lead to the perverse result where the voluntary disclosure of text messages received by a complainant could be challenged by a sender who is alleged to have abused the complainant.”
Nour Marakah was a Toronto firearms trafficker who sent texts to his accomplice Andrew Winchester, basically telling him what handguns to buy. Though the majority of the firearms acquired by Winchester at Marakah’s direction “and put on the street” remain unrecovered, two were found by police at crime scenes.
Winchester pleaded guilty to multiple firearms offences in 2014 and received an eight-year sentence.
While legally searching the men’s homes, police also seized both their phones and, two hours later, searched them and found the incriminating texts.
A judge later ruled the phone searches were invalid, but found that though the texts on Marakah’s cell couldn’t be used against him for that reason, because he had no similar expectation of privacy – or control – over Winchester’s phone, Marakah didn’t have “standing” to challenge that search and the messages retrieved there could be admitted.
Marakah was convicted of various firearm trafficking offences and sentenced to nine years in prison, minus time served in pre-trial custody, in 2015. He appealed, but the majority at the Ontario Court of Appeal upheld the decision. With Friday’s decision, he is now acquitted.
At the heart of the case, and the court’s sharply divided views, is Section 8 of the Charter of Rights and Freedoms, which provides that “everyone has the right to be secure against unreasonable search or seizure” and applies “where a person has a reasonable privacy interest in” what the state searches and the information it contains.
The protection traditionally strikes a balance between the privacy rights of individuals and the public interest in law enforcement.
McLachlin found that the target of the search was Marakah’s “electronic conversation” with Winchester, that Marakah had a “direct interest” in it and an expectation of privacy.
Ultimately, she said that though Marakah shared information with Winchester, he didn’t give up control over the information or his Section 8 right to protection.
Moldaver sharply disagreed, noting that “it does not follow that an individual with any connection to the object of a search has legal standing to challenge it.”
The expectation of privacy, he said, depends on a person’s connection to the target of the search, in this instance the phone, and his control over it.
“Control distinguishes a personal desire for privacy,” Moldaver said, “from a reasonable expectation of privacy.”
In a perfect world, he said, one might desire privacy rights over any and all personal information, but the Charter protects only what is reasonable.
And, Moldaver said, Marakah had no control over what was on Winchester’s phone, as none of us does once a private communication is received, and to say otherwise “threatens a sweeping expansion” of Section 8 rights that disrupts “the delicate balance” the section strives to achieve, especially with offences “that target the most vulnerable members of our society, including children, the elderly and people with mental disabilities.”
Furthermore, he was dismissive of McLachlin’s suggestion that the search occurred in some metaphorical “chat room,” noting that “this position was not advanced by any of the parties and the Chief Justice cites no authority for it.” In his view, “it is a fiction” that circumvents Marakah’s big problem with his bid for standing — his lack of control.
By not answering the question of where the search occurred — McLachlin said it was either the “chat room” or in Winchester’s physical phone — the decision creates confusion for lower courts.
Though McLachlin disputed his suggestion that “everyone has a reasonable expectation of privacy” even in text conversations on someone else’s phone, Moldaver said, “under her allencompassing approach … even a sexual predator who lures a child into committing sexual acts and then threatens to kill the child if he or she tells anyone will retain” an expectation of privacy in the conversations.
He predicted that “police may require a warrant even where a victim or his or her parents voluntarily provide police with threatening or offensive text messages.”
The uncertainty created by the decision will see police seeking warrants “in most cases,” he said, straining the criminal justice system.
McLachlin didn’t offer any solutions, Moldaver said, saying that when such concerns arise, “it will be for the courts to address them.”
But “experience teaches that these concerns are real,” Moldaver said, “and we ignore them at our peril.”