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Text messages are protected against illegal search-and-seizure

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Most text messages you send to another person are safe from unreasonable search or seizure by the police. The Supreme Court of Canada ruled that people have a ‘reasonable expectation of privacy’ when they send messages to someone else’s smartphone. This is not automatic. Courts will decide if the expectation of privacy applies based on the facts of a case. Consult a lawyer to determine if texts you sent are safe from police search and seizure.

Nour Marakah was convicted of trafficking handguns in 2014. Police obtained text messages Marakah sent to his accomplice Winchester for Winchester’s iPhone. The trial judge held that Marakah had no expectation of privacy for text messages once he had sent them. By sending them, Marakah gave up control over his texts to the recipient Winchester.

The Supreme Court of Canada disagreed. Marakah asked Winchester several times to delete the texts from his iPhone, but Winchester had not done so. In a 5-2 ruling, the Court held that Marakah still had a reasonable expectation that these texts were private. When the police obtained the texts from Winchester’s iPhone, rights under section 8 of the Charter of Rights and Freedoms ‘to be secure against unreasonable search or seizure.’ Marakah’s conviction was quashed as the evidence against him had been obtained illegally.

The decision does not mean that the police can never search smartphones for text messages. They can still search your texts if they can get a court’s permission to carry out such a search.

The law regarding use of new communication technology is still evolving as courts and the law catch up with its capabilities. If police officers want to examine your mobile device, contact an knowledgeable criminal lawyer immediately before agreeing to any such search.

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