Can We Talk? A Brief Look At The Supreme Court of Canada’s Holistic Approach to Electronic Conversations

I am starting this blog posting with a pop culture literary reference. As soon as I read paragraph 17 of the Chief Justice’s decision in Marakah, the passage on taking the “holistic view” of the subject matter of the search as an “electronic conversation” transported me through space and time to a reading of Douglas Adam’s Dirk Gently’s Holistic Detective Agency (also now a tv series). The premise of the book is the concept of universal connectiveness through space and time. Dirk appears exactly where and when he should appear. Superficially, there may be no rhyme or reason for his appearances but on a deeper, holistic level there is, as they say, “method in his madness.” What appears chaotic is in fact logical – at least logical when viewing the events holistically. So too the majority in Marakah, authored by our very soon to be retired Chief Justice, looks beyond the heaviness of section 8 case law and clears a holistically-enhanced path toward search and seizure in the digital age.

To be honest, there are no real surprises in the majority’s approach to the s. 8 conundrum of text messages in the hands of a third party. What makes the decision so startling is the stark contrast between the universal, contextual and principled approach embraced by the majority and the law and order, hardware focused, nuts and bolts “modalities of transmission” approach of Justice Moldaver’s dissent. As in Fearon, this contrast between the majority and dissent highlights the divisiveness of technology. Not unlike grammar school where we thought about where to put the proper accent on the syllable (syl-la-ble as opposed to syl-la-ble), Marakah requires us to think about the proper emphasis the rule of law should place on privacy and technology.  Is it, as envisioned by the majority, an emphasis on human interaction involving the everydayness of conversations, which engage the who, what, when, where and how of that interaction? Or, is it, as suggested by the dissent, a matter of hardware choices, like going to the local Best Buy and using the device that is at hand (and fits best in your hand) at the time. The bigger digital question then emerges: how connected are we to our technology and how do we protect our society while in that immersive state?

Although Marakah gives us a crystal clear pixilated picture of section 8, standing, and reasonable expectation of privacy, it does not give us a sense of identity that Justice Karakatsanis did in the dissent in Fearon. I have written in a previous posting on Fearon of the differing linguistic choices employed in the majority and dissent in that case as a precedential device  (see “A Fresh Look at Fearon: How Language Informs The Law”). In Fearon, the public safety, law enforcement objectives trope is used by Justice Cromwell to strike a balance between privacy and state intrusion. The decision looks at the granule in an attempt to provide a teachable moment in the search for the reasonable search and seizure. In that decision, the chalice-like quality of the phone as a container was retained. For Justice Cromwell and the majority, the rule of law is predominant against the backdrop setting of technology. In contrast, Justice Karakatsanis in dissent renders her decision in the digital new world of technology using the aspirational aspect of our Charter values as a guide.

Similarly, Chief Justice McLachlin in Marakah anchors the privacy dimension of s. 8 to who we are as a society as envisioned through our Charter. We bare our souls through our emojis, our Snapchat stickers, and our cartoon inspired Bitmoji doppelgängers. It is no longer Descartes’s simplistic “I think therefore I am” but “I text therefore I am” or better yet, “I press send, that’s who I am.” The Chief Justice in Marakah crystallizes what we all believe, that the future is built on micro-chips, yet the human thumbprint can still be seen in its wires. Marakah sends that message loud and clear and, if our phone is not set to silent, we receive that message just as clearly.

 

Next blog up – “Keeping Up with the Joneses”: The SCC’s Decision in R v Jones