R. v. Marakah (N.), 2016 ONCA 542
| Judge | MacPherson, MacFarland and LaForme, JJ.A. |
| Court | Court of Appeal (Ontario) |
| Case Date | July 08, 2016 |
| Jurisdiction | Ontario |
| Citations | 2016 ONCA 542;(2016), 352 O.A.C. 68 (CA) |
R. v. Marakah (N.) (2016), 352 O.A.C. 68 (CA)
MLB headnote and full text
Temp. Cite: [2016] O.A.C. TBEd. JL.005
Her Majesty the Queen (respondent) v. Nour Marakah (appellant)
(C60175; 2016 ONCA 542)
Indexed As: R. v. Marakah (N.)
Ontario Court of Appeal
MacPherson, MacFarland and LaForme, JJ.A.
July 8, 2016.
Summary:
The accused was charged with multiple firearms offences. The accused's conviction was dependent on the admission of text messages containing discussions between him and a co-accused concerning gun trafficking. In a pre-trial ruling, the trial judge held that although the seizure of the accused's text messages from his own phone constituted an unreasonable search and seizure (Charter, s. 8) and were to be excluded under s. 24(2), the accused lacked standing to challenge the seizure of the same texts on the co-accused's phone. The judge ruled that once the accused's text messages reached the co-accused's phone, they were no longer in his control and there was no longer an expectation of privacy. The text messages were admitted into evidence. The accused appealed his conviction on the ground that the judge erred in finding that he lacked standing to challenge the seizure of his text messages on the co-accused's phone as violating his s. 8 Charter rights.
The Ontario Court of Appeal, LaForme, J.A., dissenting, dismissed the appeal. The accused had no objectively reasonable expectation of privacy that his text messages would remain private in the hands of the recipient.
Civil Rights - Topic 1508
Property - Expectation of privacy - See paragraphs 16 to 87.
Civil Rights - Topic 8380
Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - See paragraphs 16 to 87.
Civil Rights - Topic 8583
Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - See paragraphs 16 to 87.
Counsel:
Mark J. Sandler and Wayne Cunningham, for the appellant;
Randy Schwartz, for the respondent, Her Majesty in Right of Ontario;
Nick Devlin, for Her Majesty in Right of Canada;
Susan Chapman and Naomi Greckol-Herlich, for the intervener, Criminal Lawyers' Association.
This appeal was heard on April 4-5, 2016, before MacPherson, MacFarland and LaForme, JJ.A., of the Ontario Court of Appeal.
On July 8, 2016, the judgment of the Court was released and the following opinions were filed:
MacPherson, J.A. (MacFarland, J.A., concurring) - see paragraphs 1 to 87;
LaForme, J.A., dissenting - see paragraphs 88 to 206.
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R. v. Marakah, 2017 SCC 59
...and Freedom. New York: Atheneum, 1970. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and LaForme JJ.A.), 2016 ONCA 542, 131 O.R. (3d) 561 , 359 C.R.R. (2d) 70 , 338 C.C.C. (3d) 269 , 30 C.R. (7th) 263 , 352 O.A.C. 68 , [2016] O.J. No. 3738 (QL), 2016 ......
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Table of Cases
...546 R v Mann, [2004] 3 SCR 59, 2004 SCC 52 ..........................................................107, 533 R v Marakah, 2016 ONCA 542, rev’d 2017 SCC 59 ...........................223–28, 233, 533 R v Marshall, [1999] 3 SCR 456 ..................................................................
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Electronic Surveillance: Section 8 and the Evisceration of Part VI
...39 Despite British Columbia’s acceptance of the contrary, this was the approach espoused by the Court of Appeal. 40 37 R v Marakah , 2016 ONCA 542 [ Marakah ONCA ]. 38 R v Pelucco , 2015 BCCA 370 [ Pelucco ]; Marakah ONCA , above note 37 at para 184. 39 See R v Pammett , 2014 ONSC 1213 ......
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What Is a Reasonable Expectation of Privacy?
...and a third woman, Lawrence, was in the back seat. The oicer noticed several garbage bags in the back seat, which were 69 R v Marakah, 2016 ONCA 542. 70 Marakah, above note 60 at para 13. 71 Ibid at paras 33–37. 72 Edwards, above note 26. 73 Ibid at para 47. 74 Ibid at para 49. 75 Ibid at p......
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R. v. Marakah, 2017 SCC 59
...and Freedom. New York: Atheneum, 1970. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and LaForme JJ.A.), 2016 ONCA 542, 131 O.R. (3d) 561 , 359 C.R.R. (2d) 70 , 338 C.C.C. (3d) 269 , 30 C.R. (7th) 263 , 352 O.A.C. 68 , [2016] O.J. No. 3738 (QL), 2016 ......
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R. v. Jones (T.), 2016 ONCA 543
...were 'No' and 'Yes'. On this appeal, the appellant challenges those answers. [4] This appeal was heard together with R. v. Marakah , 2016 ONCA 542 and R. v. Smith , 2016 ONCA 544. The court has released three separate sets of reasons in these appeals. B. FACTS (1) The parties and events [5]......
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R. v. Rafferty, 2018 ONCJ 881
...of the warrantless examination, the law in Ontario did not recognize a privacy interest in sent text messages: see R. v. Marakah, 2016 ONCA 542, 338 C.C.C. (3d) 269, at 296. It cannot be said, at the time of examination, that Detective Clark was ignorant of Charter principles du......
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2023 ONCA 335,
...not challenge the admissibility of the PGP messages under s. 8 of the Charter. At the time, this court's decision in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, held that the sender of a text message had no standing to challenge the admissibility of messages sent to another 67 How......
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Court Of Appeal Summaries (July 4 July 8)
...8, Unreasonable Search or Seizure, Criminal Code, Part VI, Invasion of Privacy *Note, this appeal was heard together with R. v. Marakah, 2016 ONCA 542 and R. v. Smith, 2016 ONCA 544. The court has released three separate sets of reasons in these appeals. R. v. Marakah, 2016 ONCA 542 [MacPhe......
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Supreme Court Of Canada Rules Text Messages Can Attract A Reasonable Expectation Of Privacy
...were in a co-accused's phone; in Jones, they were on a service provider's server). At the Ontario Court of Appeal, in both R v Marakah, 2016 ONCA 542 and R v Jones, 2016 ONCA 543, the accused were denied standing to argue whether there had been a breach of their section 8 Charter rights. A ......
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Table of Cases
...546 R v Mann, [2004] 3 SCR 59, 2004 SCC 52 ..........................................................107, 533 R v Marakah, 2016 ONCA 542, rev’d 2017 SCC 59 ...........................223–28, 233, 533 R v Marshall, [1999] 3 SCR 456 ..................................................................
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Electronic Surveillance: Section 8 and the Evisceration of Part VI
...39 Despite British Columbia’s acceptance of the contrary, this was the approach espoused by the Court of Appeal. 40 37 R v Marakah , 2016 ONCA 542 [ Marakah ONCA ]. 38 R v Pelucco , 2015 BCCA 370 [ Pelucco ]; Marakah ONCA , above note 37 at para 184. 39 See R v Pammett , 2014 ONSC 1213 ......
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What Is a Reasonable Expectation of Privacy?
...and a third woman, Lawrence, was in the back seat. The oicer noticed several garbage bags in the back seat, which were 69 R v Marakah, 2016 ONCA 542. 70 Marakah, above note 60 at para 13. 71 Ibid at paras 33–37. 72 Edwards, above note 26. 73 Ibid at para 47. 74 Ibid at para 49. 75 Ibid at p......
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Table of cases
...185 R v Mann, 2004 SCC 52 ......33–34, 111, 151, 152, 225, 239, 240–41, 243–44, 245, 261, 263, 273–74, 281, 282, 305, 306 R v Marakah, 2016 ONCA 542 ............................................................................. 91 R v Marakah, 2017 SCC 59 ...................5, 12, 13, 37, 38......