14. The Defendant appealed to the Supreme Court of Canada where the issue was whether the lower courts erred in not granting standing to bring a s.8 challenge and in holding that Marakah had no reasonable expectation of privacy in the messages sent to Winchester (8).

a. Majority Decision of the Supreme Court
15. The majority of the Supreme Court agreed with the lower courts in deciding that Marakah had a direct interest and a subjective expectation of privacy in the text messages he sent to Winchester (21-23). However, they added that the subject matter of the search was the ‘electronic conversation’ between Marakah and Winchester (17).
16. Furthermore, they reasoned that control was only one determining factor in assessing the objectively reasonable expectation of privacy, and that the lower court should not only have applied it to the device, but also to the electronic conversation (44). They held that Marakah’s subjective expectation of privacy in the text messages in Winchester’s phone was objectively reasonable, and that Marakah has standing under s.8 of the Charter (54-55). They also held that the evidence in Winchester’s phone should be excluded under …show more content…
Control does not need to be exclusive (132) or direct (136). It can be shared control, but Marakah did not have this control since he was not able to remotely access the text messages on Winchester’s phone or delete them (135). It can also be constructive control, but Marakah did not have this either since this control exists by placing an obligation of professional or commercial entities to maintain confidentiality (141). Additionally, a person has a reasonable expectation of privacy in a conversation while it is ongoing, but not once it has been received (126). The sender would only have standing to challenge the search of such conversations under s.8 if they were intercepted by the police while they was ongoing (127). Therefore, some measure of control is required to establish standing