Text messages are private communications and, even if they are stored on a service provider’s computer, their prospective production requires authorization under Part VI of the Code

R. v. TELUS Communications Co. 2013 SCC 16 – The Supreme Court of Canada has ruled that Text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI.

On March 27, 2010, the Owen Sound Police Service obtained a general warrant under s. 487.01 and related assistance order under s. 487.02 of the Code. The warrant named two Telus wireless subscribers and required Telus to provide the police with copies of any text messages sent or received by these subscribers which were stored on Telus’ computer database. In addition, the warrant required the production of subscriber information identifying any individuals who sent text messages to, or received text messages from the two individuals who were the target of the warrant.  The warrant covered a subsequent two-week period between March 30, 2010 and April 16, 2010. During this time, the warrant required Telus to abide by a specific production schedule. On March 30, 2010, Telus was required to produce the information for March 18, 2010 to March 30, 2010. On each of the following 13 days, Telus was required to produce, on a daily basis, the text messages sent or received within the last 24 hours, as well as any related subscriber information.

The focus of the appeal turned on the interpretation of “intercept” within Part VI. “Intercept” is used throughout Part VI with reference to the intercept of private communications. This means that in interpreting “intercept a private communication”, the court must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards. The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI.

When Telus subscribers send a text message, the transmission of that message takes place in the following sequence. It is first transmitted to the nearest cell tower, then to Telus’ transmission infrastructure, then to the cell tower nearest to the recipient, and finally to the recipient’s phone. If the recipient’s phone is turned off or is out of range of a cell tower, the text message will temporarily pause in Telus’ transmission infrastructure for up to five days. After five days, Telus stops trying to deliver the message and deletes it without notifying the sender.

Unlike most telecommunications service providers, Telus routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a period of 30 days. Text messages that are sent by a Telus subscriber are copied to the computer database during the transmission process at the point in time when the text message enters Telus’ transmission infrastructure. Text messages received by a Telus subscriber are copied to the computer database when the Telus subscriber’s phone receives the message. In many instances, this system results in text messages being copied to the computer database before the recipient’s phone has received the text message and/or before the intended recipient has read the text message.

Telus argued that the general warrant was invalid because the police had failed to satisfy the requirement under s. 487.01(1)(c) of the Code that a general warrant could not be issued if another provision in the Code is available to authorize the technique used by police. Since the warrant purports to authorize the interception of private communications, and since Part VI is the scheme that authorizes the interception of private communications, a general warrant was not available. The Crown’s position, on the other hand, was that the retrieval of messages from Telus’ computer database does not fall within the scope of Part VI since the copies on Telus’ computer database are not real-time communications and the police are therefore permitted to use the general warrant power to authorize the prospective production of text messages stored on a service provider’s computer.

The part of the warrant that required production of historical messages predating the issuance of the warrant was rescinded since both the Crown and Telus conceded that a production order was available to obtain those messages.  The SCC was not asked to determine whether a general warrant is available to authorize the production of historical text messages, or to consider the operation and validity of the production order provision with respect to private communications. Rather, the focus of the appeal was on whether the general warrant power in s. 487.01 of the Code can authorize the prospective production of future text messages from a service provider’s computer. That means that the SCC did not address whether the seizure of the text messages would constitute an interception if it were authorized after the messages were stored.

Section 487.01 was enacted in 1993 as part of a series of amendments to the Code in Bill C-109, S.C. 1993, c. 40. The Bill introduced a number of new judicial authorization provisions. Section 487.01 was meant to make search warrants available for techniques or procedures not specified in the Code. It authorizes a judge to issue a general warrant permitting a peace officer to “use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure”:

    • 487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
      • (a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
      • (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
      • (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

The key to this case lied in whether s. 487.01(1)(c) applied, namely, whether another provision would provide for the authorization sought in this case.  Viewed contextually, therefore, s. 487.01(1)(c) stipulated that the general warrant power is residual and resort to it is precluded where judicial approval for the proposed technique, procedure or device or the “doing of the thing” is available under the Code or another federal statute.   In other words, the SCC ruled that s. 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively. This is to prevent the circumvention of more specific or rigorous pre-authorization requirements for warrants.

Section 184(1) CC makes it an indictable offence to “wilfully intercep[t] a private communication” by use of a device. Part VI provides a comprehensive scheme for the authorization of these interceptions. It was enacted in 1974 through the Protection of Privacy Act, S.C. 1973-74, c. 50, which amended the Code to add Part IV.1 (now Part VI) entitled “Invasion of Privacy”.  The definition of “intercept” in s. 183 includes “listen to, record or acquire a communication or acquire the substance, meaning or purport thereof”. Consistent with the broad scope of Part VI, this definition is not exhaustive and focuses on the state acquisition of informational content — the substance, meaning, or purport — of the private communication. It is not just the communication itself that is protected, but any derivative of that communication that would convey its substance or meaning. “[P]rivate communication” is defined in s. 183 as follows:

    • … any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it;

Sections 185 and 186 of the Code set out the general requirements governing the application for an authorization under Part VI. Compared with other search and seizure and warrant provisions in the Code, the provisions in Part VI contain more stringent requirements to safeguard privacy interests. Before granting an authorization under Part VI, a judge must be satisfied that the authorization is in the best interests of the administration of justice. A judge must also be satisfied, in accordance with s. 186(1)(b), “that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures”. In R. v. Araujo 2000 SCC 65, the SCC clarified that this criterion required the police to show that there was “no other reasonable alternative method of investigation in the circumstances of the particular criminal inquiry”.

Part VI authorizations must also state the identity of persons whose private communications will be intercepted, the place at which they are intercepted, and the manner of the interception. They are required to contain such conditions as the judge considers advisable and will only be valid for a limited period of time not to exceed 60 days. Finally, a written application by the Attorney General, Minister of Public Safety or a designated agent is required.In addition to these prerequisites for authorization, Part VI contains a number of notice requirements. Section 196 requires that notice be given to targets of interceptions authorized under s. 186 within a certain timeframe. Under s. 189, an accused must be given notice of any interception intended to be produced in evidence.  In addition, s. 195 requires the Minister of Public Safety and Emergency Preparedness or the Attorney General for each province to produce an annual report with respect to the use of Part VI authorizations.

Both the Crown and Telus acknowledged that text messages qualify as telecommunications under the definition in the Interpretation Act. They also acknowledged that these messages, like voice communications, are made under circumstances that attract a reasonable expectation of privacy and therefore constitute “private communication” within the meaning of s. 183. Similarly, there was no question that the computer used by Telus would qualify as “any device” under the definitions in s. 183.  The issue then was how to define “intercept” in Part VI. The SCC said that the interpretation should be informed not only by the purposes of Part VI, but also by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technological developments.

The SCC ruled that unlike traditional voice communication, a text message may or may not be delivered to its intended recipient at the time it is created. Receipt of the text message depends on whether the phone is turned on, whether it is in range of a cell tower, and whether the user has accessed the message. If Telus is unable to deliver the message, it remains in the transmission infrastructure for five days, at which point Telus stops trying to complete delivery. Furthermore, unlike voice communications, text communications, by their nature, generate a record of the communication which may easily be copied and stored. A narrow or technical definition of “intercept” that requires the act of interception to occur simultaneously with the making of the communication itself is therefore unhelpful in addressing new, text-based electronic communications.

When Telus copies messages to its computer database, several steps in the transmission process have yet to occur. The production schedule required by the general warrant in this case means that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown conceded that a Part VI authorization would be required. The SCC said that the level of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or a copy that is in storage by a service provider as part of the communications process. Parliament drafted Part VI broadly to ensure that private communications were protected across a number of technological platforms.

The Court went on the say that an interpretation of “intercept a private communication” that includes the investigative technique used by police in this case finds support in the statutory definition of “intercept” in s. 183. The definition includes the simple acquisition of a communication. It does not require the acquisition of the communication itself; rather, the acquisition of the “substance, meaning or purport” of the communication is sufficient. Moreover, this interpretation is harmonious with the scheme and objectives of Part VI, which is drafted broadly in order to regulate and control a wide variety of technological invasions of privacy. Finally, the Court said, it strikes the appropriate balance between the serious invasion of privacy that results from the surreptitious acquisition of private communications and the evolving needs of effective law enforcement.

The police gained a substantial advantage by proceeding with a general warrant in this case. They did not need the Attorney General’s request for an authorization; they did not need to show that other investigative procedures had been tried and failed; they did not need to provide any notice to the target individuals; and they did not need to identify which other individuals’ private communications may be acquired in the course of the search.The general warrant in this case purported to authorize an investigative technique contemplated by a wiretap authorization under Part VI, namely, it allowed the police to obtain prospective production of future private communications from a computer maintained by a service provider as part of its communications process. Because Part VI applied, a general warrant under s. 487.01 was unavailable and aaccordingly, the SCC allowed the appeal and quashed the general warrant and related assistance order.

Leave a comment

Filed under Recent Case Law, Search and Seizure

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s