Police officers obtained evidence of Mr. Marakah’s involvement in firearms trafficking, through a warrantless search of an iPhone belonging to Marakah’s accomplice, Winchester.
The trial judge and Court of Appeal held that Marakah had no reasonable expectation of privacy in text messages stored on Winchester’s phone, and therefore lacked standing to challenge the search. The Supreme Court overturned this conclusion, holding that the subject matter of the search was the electronic conversation itself, in which Marakah had a reasonable expectation of privacy.
The majority clarified that physical control of an item “is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest.” In the case of an electronic conversation, “an individual does not lose control over information … simply because another individual possesses it or can access it. Nor does the risk that a recipient could disclose an electronic conversation negate a reasonable expectation of privacy in an electronic conversation. Therefore, even where an individual does not have exclusive control over his or her personal information, only shared control, he or she may yet reasonably expect that information to remain safe from state scrutiny.”
Marakah illustrates that reasonable expectation of privacy is a broad and flexible legal concept that must be applied in a manner consistent with evolving technology.
Decided by the Supreme Court of Canada on December 8, 2017.
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