A Look at the Supreme Court of Canada’s Landmark Decision in R. v. Marakah (2017)
With the rapid growth of digital communication, one of the most important questions in Canadian criminal law has become:
Do text messages and electronic communications receive the same privacy protection as private conversations or personal documents?
The Supreme Court of Canada addressed this question in its groundbreaking 2017 decision, R. v. Marakah (2017 SCC 59), which reshaped how digital privacy is understood under Canadian law.
Legal Background
Section 8 of the Canadian Charter of Rights and Freedoms provides that:
“Everyone has the right to be secure against unreasonable search or seizure.”
In practical terms, this means that police cannot search or seize property without a valid legal justification. If evidence is obtained through an unlawful search, that evidence must generally be excluded from court under the Charter.
The Case at a Glance
In R. v. Marakah, police suspected two individuals, Mr. Marakah and his friend, Mr. Winchester, of firearms trafficking.
Police obtained a search warrant for their residences, but not for their cell phones. During the search, both men’s phones were seized and examined. Investigators found incriminating text messages where Marakah appeared to admit to the crime.
The issue was that the search warrant authorized only the house search, not the phone search.
The trial court ruled that the texts from Marakah’s own phone were inadmissible, as searching the device without a warrant violated his privacy.
However, the court allowed texts found on Winchester’s phone to be used, reasoning that Marakah had no privacy claim over messages stored on someone else’s device.
The Appeal and Supreme Court Decision
The case reached the Supreme Court of Canada, which in 2017 ruled, by majority, that:
“Digital privacy protection does not depend on ownership of the device, but on the content of the message and the sender’s reasonable expectation of privacy.”
The Court held that even when a message is stored on someone else’s phone, the sender can still have a reasonable expectation of privacy, especially when the communication is clearly private and not intended for public disclosure.
In this case, Marakah had repeatedly asked Winchester to delete their conversations, showing that he never intended those messages to be shared. The Court concluded that the messages remained part of Marakah’s private domain and that admitting them as evidence would violate his Charter rights.
The texts were therefore excluded from the trial.
Legal Analysis
The Marakah ruling marked a turning point in Canadian privacy law.
Before this decision, many believed that privacy protection applied only to personal devices or spaces directly owned by an individual. The Supreme Court rejected that narrow view, emphasizing three key points:
- Privacy depends on the nature of the content, not ownership of the device.
- Digital communications can be private, much like traditional letters or personal correspondence.
- Police must obtain a specific warrant to access digital content, even when stored on a third party’s device.
In other words, your right to privacy doesn’t end when your message leaves your phone.
Conclusion
The Marakah case underscores that privacy in the digital era isn’t limited to physical boundaries.
If you send a message with the reasonable expectation that it will remain confidential, the law protects that expectation.
Put simply:
Your text messages are part of your private life, and police cannot access or use them without a valid warrant, even if those messages are stored on someone else’s phone.
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