Information and evidence obtained from social media or
electronic communications is playing an increasingly important role
in the workplace, but employers must be conscious of employee
privacy rights. As a result, the Ontario Court of Appeal's
recent decision regarding whether there is a reasonable expectation
of privacy in sent text messages is of particular interest to
In R. v. Marakah, the Court of Appeal
considered the use of sent text messages as evidence in the
criminal context. In a 2-1 decision, the Court of Appeal upheld the
lower court decision and found that the accused had no
"reasonable expectation of privacy" in sent text
Police executed search warrants and seized the cell phones of
Mr. Marakah and a co-accused. The cell phones contained text
messages implicating the two accused in gun trafficking. Mr.
Marakah argued that the search of the cell phones violated his
Charter rights. The judge agreed with respect to his cell
phone, but did not agree regarding the text messages Mr. Marakah
sent to the co-accused. Those messages were discovered on the cell
phone belonging to the co-accused.
The Court concluded that senders of text messages do not expect
that their messages will remain private in the hands of a
recipient. The Court said:
There is, in my view, a lack of empirical evidence to support a
conclusion that senders of text messages have a presumptively
reasonable expectation, from an objective standpoint, that their
text messages will remain private in the hands of the
Mr. Marakah has filed an appeal to the Supreme Court of Canada.
The matter is tentatively scheduled for the spring of 2017.
Is Marakah consistent with recent law?
Marakah is in many ways contrary to the recent trend
with respect to privacy rights. In its 2015 decision, R. v.
Pelucco, the British Columbia Court of Appeal held that an
accused does have an expectation of privacy in sent text messages
because the sender of a text message will ordinarily have a
reasonable expectation that a text message will remain private in
the hands of its recipient. The Ontario Court of Appeal in
Marakah rejected this proposition. The reasonableness of
this proposition will almost certainly weigh heavily in the Supreme
Court of Canada's deliberations on this matter.
Marakah also runs contrary to the Supreme Court of
Canada's 2012 decision in another criminal case, R. v.
Cole, where the Court found that employees have a reasonable
expectation of privacy respecting the content of computers provided
for work practices.
What does this mean for employers?
Marakah is a welcome development for employers. Sent
text messages may become valuable evidence in a range of workplace
situations, including cases involving breach of restrictive
covenants, the theft of private information or trade secrets, and
in workplace harassment investigations.
Employers should stay tuned as Marakah proceeds to the
Supreme Court of Canada. With the recent rise of
"sexting" and much-publicized incidents of the public
dissemination of very personal images, the Supreme Court's
upcoming decision is likely to have wide-ranging consequences.
Criminal law decisions, such as Marakah and Cole,
often have implications for workplaces. For example, Cole
had a trickle-down effect whereby courts and tribunals emphasized
an employee's reasonable expectation of privacy in the
In the meantime, a well-drafted and consistently enforced policy
can help to dispel an employee's expectation of privacy in the
workplace, including with respect to text messages. We recommend
Implement workplace technology
policies with regard to the use of social media and the use of
employer technology, and/or "bring your own device"
Review and update your current
Get legal advice before taking steps
regarding text message evidence.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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