Mr. Jones attempted to defend himself from firearms and drug trafficking charges by challenging the admissibility of text messages obtained through a Production Order served on his wireless service provider, Telus.
The Supreme Court applied its reasoning in the companion case of R. v. Marakah to confirm that Jones had a reasonable expectation of privacy in messages stored by Telus. “It is objectively reasonable for the sender of a text message to expect that a service provider will maintain privacy over the records of his or her text messages stored in its infrastructure,” the majority explained. “One would not reasonably expect the service provider to share his text messages with an unintended recipient, or post them publicly for the world to see.”
Although Jones had a reasonable expectation of privacy, and therefore standing to challenge the Production Order, the majority ultimately upheld the Production Order, finding that it was not an “intercept” subject to the rigorous criteria of Part VI of the Criminal Code. A distinction was drawn between a “seizure of historical text messages stored by a service provider” and a “wiretap … authorizing the prospective production of future text messages.”
There is some tension between Jones and Marakah, in the sense that a suspect’s expectation of privacy “it is the electronic conversation itself, not its components”; yet the degree of legal protection depends primarily on when the conversation was intercepted.
Decided by the Supreme Court of Canada on December 8, 2017.
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