Nour Marakah v. Her Majesty the Queen

(Ontario) (Criminal) (As of Right)


Canadian charter (Criminal).


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Charter - Criminal law - Search and seizure - Standing to challenge - Whether appellant had reasonable expectation of privacy in text messages sent by him and seized from recipient’s phone - Whether appellant had standing to challenge legality of search and seizure - R. v. Telus Communications Co., [2013] 2 SCR 3, 2013 SCC 16.

Mr. Marakah, appellant, was convicted of two counts of trafficking firearms, one count of conspiracy to traffic firearms, possession of a loaded restricted firearm and possession of a firearm without a valid license. Before trial, he challenged the search and seizure of his accomplice’s cell phone to which he had sent multiple text messages. The application judge concluded that Mr. Marakah had no standing to challenge the search of that phone because he had no reasonable expectation of privacy in respect of those text messages. While the application judge accepted that the sender of a text message has a reasonable expectation of privacy in the message’s content after it has been sent, that reasonable expectation of privacy ends once the text message reaches its intended destination and is no longer under the sender’s control. The Court of Appeal dismissed the appeal. LaForme, J.A., dissenting, would have allowed the appeal, excluded the text messages and entered acquittals on all charges.