The Privacy Paradox: Marakah, Mills, & the Diminished Protections of Section 8 by MICHELLE BIDDULPH

The Supreme Court of Canada’s decision in R v Marakah is a landmark decision under section 8 of the Charter, as it extended constitutional protection to some electronic communications that are no longer in the control of the sender. In other words, the presence or absence of control is no longer determinative.

This article challenges the understanding of Marakah as a progressive decision, suggesting that Marakah has created a privacy paradox. By significantly expanding the scope of section 8 of the Charter, the Court in Marakah has created a right that is both extremely broad and practically illusory. In order to deal with the practical challenges resulting from the decision in Marakah, this article suggests that courts will deal with Marakah by diluting current principles under section 8 in order to avoid absurdities and undesirable results.

The Supreme Court’s majority decision in the 2019 decision of R v Mills illustrates the privacy paradox. Unable to rely on the accused’s lack of control over communications as a determinative factor, the majority in Mills abandoned decades of jurisprudence under section 8 of the Charter to reach its desired result. The new concept of privacy as “relationship-based” places courts in the business of conducting a post facto assessment of which relationships are entitled to privacy.

As shown by Marakah and Mills, those who seek progressive and idealistic development of Charter principles through Supreme Court jurisprudence should be careful what they wish for. The most well-intended decision can have very unintended results.