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BCCLA at Supreme Court of Canada to Argue for Strong Privacy Protections when Police Collect Text Messages

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For immediate release

OTTAWA – On Thursday, March 23, 2017, the BCCLA will make oral arguments at the Supreme Court of Canada in two cases critical to defining Canadians’ privacy interests in text messages:  R. v. Jones and R. v. Marakah. The BCCLA is intervening in both cases to argue that Canadians have a strong privacy interest in the private conversations they have by text message and that text messages are protected by s. 8 of the Charter regardless of the physical place from which they are accessed or the technology used to send them.

R v. Jones considers the standard police have to meet when seeking a warrant to acquire text messages from a telecommunications provider when those messages have already been sent and received. R. v. Marakah considers whether the sender of a text message continues to have a privacy interest in the message after it has been sent. The BCCLA is making oral submissions in both cases to urge the Court to adopt strong privacy protections for Canadians’ text message communications.

In R. v. Jones, the BCCLA will argue that police should have to meet the stringent standard under Part VI of the Criminal Code when collecting text messages from a telecommunications provider. Part VI of the Criminal Code governs the interception of “private communications”, including phone conversations. The BCCLA says that police should have to satisfy the standard under Part VI even when the messages have already been sent and received. Caily DiPuma, Acting Litigation Director for the BCCLA: “Canada is arguing that Canadians’ are entitled to less protection under the law when the police are acquiring ‘historic’ text messages that have already been sent and received.  The BCCLA says Canadians’ private communications deserve strong protection under s. 8 of the Charter regardless of when they were sent or how the police accessed them.”

In R. v. Marakah, police found text messages sent by Mr. Marakah on the phone of the recipient of Mr. Marakah’s texts. The question for the Court is whether Mr. Marakah continued to have a reasonable expectation of privacy in his sent text messages. The BCCLA will argue that s. 8 of the Charter continues to protect text communications even after they are sent. Caily DiPuma, Acting Litigation Director for the BCCLA: “Our freedom to express ourselves is promoted when we are confident that our private communications are protected by the Charter. Canadians’ privacy interests should depend on the nature of the communication, not the device from which they are accessed.”

The BCCLA is represented by Nader R. Hasan and Gerald Chan of Stockwoods LLP.

Our argument for R. v Jones is available here.

Our argument for R. v Marakah is available here.

What: Supreme Court of Canada will hear oral arguments in the cases R. v. Jones and R. v. Marakah.

When: Oral arguments before the court begin on Thursday, March 22, 2017 at 6:30 am PT / 9:30 am ET.

Where: Supreme Court of Canada (Ottawa, Ontario)

Who: Caily DiPuma, BCCLA Acting Litigation Director, available for comment in Vancouver, B.C.