BenchPress - Vol 42-3 - LawNow Magazine

BenchPress – Vol 42-3

  1. Privacy of Text Messages

In a split decision, the Supreme Court of Canada has ruled that text messages are protected against unreasonable search or seizure under the Charter.  If a person has a subjective reasonable belief that a text message they send to another person will remain private, then the state cannot obtain that information without a warrant. In this case, Nour Marakah sent text messages regarding illegal firearm transactions to his accomplice, Andrew Winchester. The police obtained a warrant to search their homes, but not for the incriminating text messages on their phones which they seized. Marakah had asked Winchester to delete the messages numerous times, which indicated that he had expected privacy. Interestingly, the Court also held that a reasonable expectation of privacy will not apply to every kind of electronic communication in every circumstance. Because of the unreasonable search and seizure of the phones and text messages, Marakah was acquitted.

On the same day this decision was released, another decision with similar facts and results, R. v. Jones 2017 SCC 60, was released as well.

R v. Marakah, 2017 SCC 59


  1. Administrative Segregation Beyond 5 Days is Unconstitutional

Justice Marrocco, an Ontario Superior Court Judge, has ruled that administrative segregation for more than five days is unconstitutional because the prison system lacks proper safeguards. In his decision, Justice Marrocco struck down several provisions in the Corrections and Conditional Release Act.  Administrative segregation involves keeping a prisoner in isolation, where inmates spend 22 hours a day in a cell without meaningful human contact. The decision to continue with solitary confinement after five days is left up to the discretion of the warden. However, Justice Marrocco took issue with this approach. He stated that the lack of an independent review to extend segregation beyond five days means that there is no accountability for the decision to segregate. The lack of procedural safeguards goes against the principles of fundamental justice.

The government argued that poor implementation of the law caused the rights violations, not the law itself. In rejecting this argument, Justice Marrocco stated that it was up to Parliament to address the situation.

The effect of the decision was delayed by one year to allow Parliament to address the unconstitutional practices. However, Justice Marrocco found administrative segregation to be a constitutional practice, even if it was applied to mentally ill inmates or those aged 18 to 21.


  1. Rest in Peace, Meika

The Supreme Court of Canada recently dismissed the appeals by Spencer Lee Jordan and Marie-Eve Magoon. Magoon and Jordan were convicted of first degree murder of Jordan’s six-year old daughter, Meika. In 2011, Meika died in the hospital after being severely beaten by Jordan and Magoon. The Crown conducted a “Mr. Big” undercover operation where Jordan and Magoon admitted to the horrific treatment of the little girl to police officers who were posing as criminals. The police officers convinced the couple that they were part of a criminal organization that conducted credit card skimming, fraud, and drug trafficking. The operation lasted eight months and involved wiretapping to obtain the admissions.

The trial judge at the Alberta Court of Queen’s Bench had originally convicted the two of second degree murder or manslaughter. The Alberta Court of Appeal elevated the conviction to first degree murder after finding that they had unlawfully confined Meika prior to her death. Both Courts relied on the evidence from the Mr. Big operation.  In dismissing the appeal, the Supreme Court of Canada allowed the decision of the Alberta Court of Appeal to stand.

If Jordan and Magoon had been convicted of second-degree murder, they would have been sentenced to life in prison without parole for a minimum of 17 years. A first-degree murder conviction carries an automatic life sentence with no chance of parole for 25 years.

R v. Jordan and R. v. Magoon


Aaida Peerani
Aaida Peerani is Staff Lawyer and Editor for LawNow Magazine at the Centre for Public Legal Education Alberta.

A Publication of CPLEA

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