Reasonable Expectation of Privacy in Text Messages (R v Marakah)

Text messages have become some of the most common evidence in Canadian criminal prosecutions. Crown will frequently rely on text exchanges to prove identity, intent, planning, or association. The defence question is whether the texts were obtained in compliance with Section 8 of the Canadian Charter of Rights and Freedoms or whether the search that produced them violated the accused’s reasonable expectation of privacy. The leading Supreme Court of Canada case on this is R v Marakah, 2017 SCC 59, with important refinement in R v Mills, 2019 SCC 22. This guide walks through what those decisions actually established and how the analysis works in BC criminal files.

What R v Marakah Decided About Text Message Privacy

In R v Marakah, the Supreme Court of Canada considered whether the sender of a text message has a reasonable expectation of privacy in the message after it has been delivered to and stored on the recipient’s device. The accused, Marakah, had sent texts to a co-accused about a firearm transaction. Police obtained the texts during the search of the recipient’s iPhone (under a warrant for that device). Crown attempted to use the texts against Marakah at his trial. Marakah argued that he had a reasonable expectation of privacy in the texts and that admitting them violated his Section 8 rights.

The Supreme Court of Canada agreed with Marakah by a 5-2 majority. Chief Justice McLachlin, writing for the majority, held that a person can have a reasonable expectation of privacy in text message conversations even after the messages have reached the recipient’s device. The question is not where the messages physically sit at the moment they are seized. The question is whether the sender had a subjective expectation of privacy and whether that expectation was objectively reasonable in the circumstances.

The court applied the four-part Edwards/Spencer framework used for all Section 8 analyses. The four questions are: what was the subject matter of the search, did the accused have a direct interest in it, did the accused have a subjective expectation of privacy, and was that expectation objectively reasonable. Applied to texts, the answer in Marakah’s case was yes on all four. The texts were excluded as Charter-breaching evidence under Section 24(2).

When You Have a Reasonable Expectation of Privacy in Texts

Marakah did not establish that every text message conversation is private. It established that text conversations can attract privacy protection depending on the circumstances. The analysis is context-specific.

Factors that support a reasonable expectation of privacy in texts include:

• The conversation was between a small number of identifiable people, not a broadcast or open channel
• The sender took ordinary steps to control the conversation (closed messaging app, password-protected device, no expectation of forwarding)
• The content was personal, private, or sensitive
• The sender had no reason to expect the recipient would disclose or share the messages
• The platform itself created an expectation of confidentiality (a private direct message rather than a public post)

Factors that reduce the expectation of privacy include public-facing platforms (a comment on a public Facebook post is not a text conversation), large group chats where the sender knew the audience was wide, and content that was clearly intended for broad distribution.

The key insight from Marakah is that the recipient’s possession of the texts does not automatically dissolve the sender’s privacy interest. A letter mailed to a friend does not lose Charter protection just because the friend receives it.

When Police Need a Warrant for Text Messages

If the accused has a reasonable expectation of privacy in the texts, then under Section 8 of the Charter the police generally need prior judicial authorization (a warrant) to search for and seize them. The warrant requirement applies whether police are accessing the device of the sender, the device of the recipient, or service-provider records.

The warrant requirements depend on which target is being searched.

Searching a physical device (phone, tablet, computer). A general warrant under Section 487 of the Criminal Code or a specific search warrant authorizing examination of the device contents. Search incident to arrest of the device is now significantly limited following R v Fearon, 2014 SCC 77, which required specific conditions before police can search a phone seized on arrest.

Production order to a service provider. Section 487.014 of the Criminal Code authorizes a production order for records. Telus, Rogers, and Bell will not release stored text content without a court order, and they typically resist orders that lack specificity.

Intercepting live communications. A wiretap authorization under Part VI of the Criminal Code (Section 184 and following). This is the most demanding authorization to obtain.

Where police bypass the warrant requirement (warrantless search of a phone outside the Fearon exceptions, informal request to a service provider, consent that was not freely given), the texts are vulnerable to exclusion under Section 24(2) at trial.

R v Mills and the Limits of Text Message Privacy

Two years after Marakah, the Supreme Court of Canada decided R v Mills, 2019 SCC 22 (a different Mills than the sexual offence records case). The Mills decision shows the outer edge of text message privacy.

In Mills, the accused communicated with what he believed to be a 14-year-old girl through online chat platforms. The girl was in fact an undercover officer participating in an investigation into online child luring. The conversations were preserved by the officer and used at trial. The accused argued that he had a reasonable expectation of privacy in the conversations under Section 8, citing Marakah.

The Supreme Court of Canada rejected that argument. The majority held that the accused had no reasonable expectation of privacy in conversations with a stranger he had never met, where the conversations themselves constituted the criminal offence (online child luring), and where the recipient was a state agent who had simply preserved what she received. The majority distinguished Marakah on the basis that Marakah involved a private conversation between identified individuals.

The practical effect of Mills is that text and online conversations with strangers, with state agents acting in undercover capacities, or conducted in contexts where the very communication is the offence, do not attract the same privacy protection as conversations between identifiable parties in a private context.

How Defence Challenges Text Evidence at Trial

When Crown intends to rely on text messages at a BC criminal trial, defence challenges typically run on three tracks at once.

The Section 8 application. Did the accused have a reasonable expectation of privacy in the texts. If yes, was the search reasonable (warrant, proper authorization, Charter-compliant procedure). If no, the evidence may be excluded under Section 24(2).

The authenticity and identification issue. Crown must prove the texts are what they purport to be and that the accused was the author. Phones can be shared, accounts can be hacked, screen captures can be edited. Defence cross-examination on authenticity is often productive.

The interpretation issue. Text exchanges are often ambiguous. Slang, sarcasm, group chat dynamics, and missing context can be used to argue that the messages do not mean what Crown says they mean.

Julian Van Der Walle handles Section 8 applications in BC criminal files where text and digital evidence is central. The work is technical and the timing matters. These applications need to be filed in the lead-up to trial, not on the morning of.

Contact Julian Van Der Walle Law

If you are facing a criminal charge in BC where Crown is relying on text messages, social media, or other digital evidence, the Charter analysis is the defence. Julian represents clients across Vernon, Kelowna, Penticton, Salmon Arm, and the Kootenays. The first consultation is free.