Decision Narrows Definition of Facebook Privacy

  • November 20, 2018
  • Mark Hayes and Adam Jacobs

As communication technologies progress, courts have had to grapple with whether individuals have a reasonable expectation of privacy in the conversation occurring through an electronic medium. This conclusion is relevant to criminal law as it impacts whether a search of an electronic conversation without a warrant violates an accused’s rights guarantees against unreasonable search and seizure pursuant to the Canadian Charter of Rights and Freedoms. And, as often happens, conclusions made in the criminal law context may impact the manner in which reasonable expectation of privacy is interpreted in civil litigation, regulatory decision and other non-criminal proceedings.

In 2017, the Supreme Court of Canada concluded in R. v. Marakah 2017 SCC 59 that, in certain circumstances, an individual may have a reasonable expectation of privacy in text messages sent and received. However, a recent decision of the Ontario Superior Court of Justice in R. v. Patterson 2018 4467 has distinguished and significantly narrowed the ambit of Marakah in concluding that a sender of Facebook Messenger messages does not have an objective expectation of privacy in those messages stored on Facebook's servers in the United States.

Briefly, Patterson involved an accused charged with luring a child contrary to s. 172.1 of the Criminal Code. It was alleged that Richard Patterson used Facebook Messenger to lure a 15-year-old boy for the purposes of committing a sexual offence.