R. v. Marakah: The Complexities of Standing in the Context of Sent Text Messages

Abstract

When dealing with the privacy interests of the accused in the context of third party searches, whether or not an accused’s interests are sufficiently implicated by police conduct should always turn on a consideration of all the facts. Such assessments are contextual, and should take into account a range of factors including: 1) the nature of the police conduct at issue; 2) the actual subject matter (object) and purpose of the search; 3) the extent to which the privacy interest of the accused is implicated; 4) whether the accused was a target of the investigation; and 5) whether the discovery of the evidence was inevitable.

If the nature of the police conduct at issue gives rise to a legitimate Charter concern that has some bearing on the accused’s privacy interests, standing should not be an obstacle to investigating the nature of that conduct. However, if there is no evidence of police misconduct, and the accused’s privacy interest is only incidentally implicated, an inquiry will not likely be warranted. By engaging in a more contextual analysis, the courts will be better positioned to truly consider the merits of a Charter application having regard to the interests of the accused and standing will not be a barrier to ensuring the underlying aims and purposes of the Charter are achieved.

Keywords: R. v. Marakah, Ontario Court of Appeal, text messages, privacy interests, third party search, cell phone, Charter of Rights and Freedoms, search and seizure, police powers