Monthly Archives: November 2013

Does a Production Order Still Authorize a Search for “Past” Text Messages?

Following the SCC decision in R. v. TELUS Communications Co. 2013 SCC 16, police now need a Part VI authorization for prospective production of future private communications from a computer maintained by a service provider as part of its communications process.  In that same decision, the appeal into the part of the warrant that required production of historical messages predating the issuance of the warrant was rescinded since both the Crown and Telus conceded that a production order was available to obtain those messages, so therefore the SCC did not have to decide on that issue.

Fast forward to R. v. Croft 2013 ABQB 640 where that very issue that the SCC did not have to rule on came to the forefront.  Each of the four accused filed and served a Notice of Constitutional Question seeking declarations that three provisions of the Criminal Code: s. 487.012 which relates to the granting of “production orders”; s. 492.2(1) which relates to the authorization of “number recorders”; and s. 492.2(2) which relates to the production of telephone number records, are of no force or effect as being contrary to s. 8 of the Charter and incapable of being saved under s. 1 of the Charter.

This blog post will only relate to the matter of the s. 487.012 CC argument. The materials establish that in the police investigation leading to the charges against these accused, 12 production orders were issued pursuant to s. 487.012.  The orders were addressed to three telephone service providers: Telus Communications Company, Rogers Communications Inc., and Virgin Mobile Canada. Eight orders were directed to Telus alone. One was directed to Rogers alone. One was directed to Telus and Rogers. Two were directed to Telus, Rogers and Virgin.  Each order required the service provider or providers to which it was directed to produce to a named RCMP officer all incoming and outgoing call details (telephone records) and incoming and outgoing text messages for cellular phones identified by a telephone number for a specified period of time which ended on or prior to the date of the order.  It was an agreed fact that pursuant to at least some of the production orders, the telephone service provider delivered to the RCMP text messages which had been sent from or to a cellular telephone identified in the order during the period covered by the order.

The accused first challenged s. 487.012 on the basis that the standard of belief that a crime has been committed is too low. The court ruled that the wording of s. 487.012(3)(a) on this point is, at best, clumsy. It says that the justice or judge must be satisfied, “that there are reasonable grounds to believe that (a) an offence … has been or is suspected to have been committed”. Arguably the reasonable belief standard established early in the section, according to this court, is lowered by the use shortly thereafter of the words “or is suspected to have been”.  In argument, however, the Crown conceded that the confusion created by this clumsy wording should be resolved by interpreting s. 487.012(3)(a) as requiring that a reasonable belief standard be met notwithstanding the use of the word “suspected” towards the end of the provision. This, in the court’s view, satisfactorily resolved this aspect of the accused’s challenge to s. 487.012.

The accused raise a second basis of challenge to s. 487.012. They submitted that collection by the RCMP, pursuant to a s. 487.012 production order, of the text messages which Telus had recorded in the manner described constituted an interception of private communications. It was the equivalent of an interception of private communications pursuant to a wiretap authorization.  They submitted that such an acquisition by the police of the text messages was a violation of the right to be secure against unreasonable search or seizure protected by Charter s. 8, unless the various tests and conditions which apply when a wiretap authorization is sought, including especially, the investigative necessity requirement (CC s. 186(1)(b)), have been satisfied. The less rigorous standard of s. 487.012 is constitutionally insufficient for the interception of private communications. They submitted that the application of the more rigorous standard is a constitutional imperative.  The accused submitted that as the more rigorous standard is not required by s. 487.012, that section, if used to require production of text messages by a telephone service provider, is a limitation of the right guaranteed by Charter s. 8. The limitation cannot be justified pursuant to Charter s. 1. In this context, therefore, s. 487.012 is unconstitutional.

The Crown, on the other hand, submitted that authorizing the acquisition of past text messages in the manner they were acquired here was not equivalent to authorizing the interception of future text messages or telephone calls. What the s. 487.012 production orders authorized in this case was not an interception of private communications. The constitutional imperative applicable is that before authorization is granted, it must be shown that there is a reasonable belief that a crime has been committed and that evidence will be obtained through the text messages sought to be acquired. There is no constitutional imperative of investigative necessity in this, or any other context. The investigative necessity requirement of CC s. 186(1)(b) is a statutory imperative, not a constitutional imperative.

According to this court then, the first question therefore must be, “Was the acquisition of the text messages by the RCMP an interception of private communication?”

“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning of purport thereof;

“private communication” means 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.

“Telecommunication” is defined in the Interpretation Act, R.S.C. 1985, c. I-21, s. 35 as follows:

“the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system.”

In Telus, the dispute focused on the meaning of “intercept”. There was no dispute that text messages are telecommunications within the Interpretation Act definition or that text messages are “private communications” within the definition of CC s. 183.  After a very thorough examination and review of the SCC decision in Telus, this court found that the s. 487.012 production orders granted in this case authorized the interception of private communications.  Therefore, the result of the determination that the production orders in this case authorized the interception of private communications (text messages) is to expose a conflict and inconsistency between CC s. 487.012 and sections in CC Part VI when they are both read literally. If s. 487.012 can be used to authorize the interception of private communications, it authorizes an act which is illegal under s. 184 and for which illegality, s. 184(2) creates no exception. Further, if authority to intercept private communications can be obtained by satisfying a judge of the matters identified in s. 487.012 (3), there is a direct and clear conflict with ss. 185 and 186 which impose a different and more rigorous set of requirements for the authorization of the interception of private communications.

Indeed, it is clear, in this court’s view, that Parliament did not intend that s. 487.012, which was enacted after Part VI, could be used to authorize the interception of private communications. It did not place s. 487.012 in Part VI which clearly was intended to be an “invasion of privacy code” within the Criminal Code.

Having concluded that the acquisition of text messages recorded by telephone service providers in their transmission infrastructure in the course of the telephone service provider transmitting the text message from the sender to the receiver, even where the recording was made in the past, was an interception of private communications, and having concluded that, properly interpreted, s. 487.012 does not permit the authorization of interceptions of private communications, the ABQB found that the production orders in the case which purported to authorize such interceptions were invalid, and the interceptions of private communications effected pursuant to them, were, in effect, unauthorized.

The end result:  decisions dictate that you will now need a Part IV authorization for any text message content; past, present, or future.  In application, according to Telus (like the other service providers) it no longer stores text message “content” in its infrastructure, so you will no longer be capable of obtaining the actual “communication” (text content) in any regard.  Broadly interpreted, a Production Order is still valid and constitutional for obtaining “numbers texting to and from” the suspect number, cell tower information, etc. since they will no longer contain information which tends to reveal intimate details of the lifestyle and personal choices of the subscriber.  If your investigation dictates, and you need actual text message content, a Part IV authorization will be required.  This same court, in its other reasoning, ruled that the acquisition of information pursuant to a s. 492.2 number recorder warrant is not an interception of private communications.  Either does not include the audio of a telephone call or the text of a text message. It does include the number of the called telephone, the number of the calling telephone, the direction of the call, the duration of the call, the date and time of the call, in the case of a cell phone the identification of the cell phone tower involved in the call, various forms of serial numbers depending on the type of telephone equipment involved, and information as to call features used in the call such as call forwarding, conference calling or voice messaging. There is also other information relating to the telephone company networking equipment which is of no investigative interest.  So, it appears both a 487.012 and 492.2 CC authorizations will suffice for those investigative requirements.



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What Constitutes “Reasonable Suspicion” for an ASD Demand?

R. v. Drysdale 2013 SKQB 392 – On November 1, 2011, at approximately 1:00 a.m., a Constable on patrol observed a half ton pick up truck leaving the parking lot of the Heartland Motor Inn in the Town of Rosetown, Saskatchewan. Rowdy’s Bar is a part of the Inn. The Constable decided to stop the truck to check the driver for driver’s license, registration and sobriety. The Constable turned on her police car emergency lights and the truck stopped. She approached the vehicle and noted there were five people in the truck, including the driver. The Constable approached the driver’s side door. All the windows were down on the truck. She advised the driver (the accused here) she was checking for his driver’s license, registration, and sobriety.

The Constable testified that she asked them where they had been coming from and they advised her they were coming from Rowdy’s.  The constable asked him when was his last drink, to which he said he had a drink that night (since supper) and then she asked him to come back to the police vehicle to confirm his sobriety (she advised him that she wanted him to come back to her vehicle to do an ASD). The officer testified that her reasonable suspicion was based on the smell of liquor, time of night, location and time (i.e. — just leaving Rowdy’s Bar), and the admission of one drink. She further testified that there were no other signs of alcohol consumption or impairment.

The ASD test was concluded in the police car. The driver registered a “fail” which resulted in his arrest accompanied by a formal demand for a breath sample to be analyzed by a qualified technician (s. 254(3) of the Criminal Code). He was taken to the nearby Detachment where he provided two breath samples that registered readings of 100 milligrams of alcohol in 100 milliliters of blood.  The trial judge in this case stated:

There are two aspects to the question of what is the meaning of reasonable suspicion. The first aspect is whether or not a police officer subjectively believes that a person has alcohol in their body. One must simply say is the officer’s evidence of that belief accepted? Well, in most cases it will be.

The larger question that’s emerging in these new cases in this area is whether or not that suspicion was reasonably based. Was it a reasonable suspicion? Well, what does reasonable mean? Well, reasonable has an aspect of objectivity to it. Reasonable means would a reasonable person standing in the shoes of the police officer, knowing the circumstances, conclude that the person has alcohol in their body? It is a low test, but, nevertheless, it is a test. And the reason that it is a test is because the Code says that there must be reasonable suspicion to stop somebody and to investigate a possible criminal offence. If the test is not met, then the person is sent on their way.

The trial judge ruled that in this case, the officer lacked reasonable suspicion.  The SKCA relied on R. v. Mitchell 2013 MBCA 44, 298 C.C.C. (3d) 525 which examined whether an admission of alcohol consumption by a driver is sufficient, in and of itself, to establish a reasonable suspicion to trigger an ASD demand or whether more is required, especially when the driver’s answer might be considered to be a qualified one.  In addition, the SKCA said that there has been considerable debate on this issue coming out of Alberta, all stemming from R. v. Gilroy (1987), 79 AR 318 (Alta CA), [1987] A.J. No. 822, and how the courts have interpreted that decision over the years.  Firstly, the Thomas, Dunn line: this line of cases interprets Gilroy to say that any admission of drinking by an accused will support the objective leg of section 254(2). Paragraph 20 of R. v. Thomas, Justice McDonald states: (as read)

It seems clear to me that once the appellant had acknowledged to the peace officer in response to his question that the appellant’s last drink had been “an hour or two before driving” then the objective bases for the peace officer’s subjective honestly held reasonable suspicion of alcohol being in the appellant’s body, had been made.

The admission of consumption is sufficient to raise a reasonable suspicion of alcohol in the body. If an accused person admits to consumption, it is not necessary for a police officer to challenge or clarify the type, quantity or timing of the consumption. Once an accused admits consumption it is reasonable, based on the objective standard, for a police officer to have a suspicion of alcohol in the body. It is not necessary for the police officer to evaluate or, indeed, believe additional information offered by the suspect driver in order to satisfy the subjective and objective standards for reasonable suspicion of alcohol in the body at this stage of the investigation.

This line of authority prefers no qualitative analysis of the admission of drinking.  The second line of authority is based upon R. v. Hnetka, 2007 ABPC 197 and a series of decisions out of Calgary.  To summarize, Judge Allen held that an admission that the suspect had something to drink “a while ago”, absent other indicia, did not amount to the necessary objective ground.

In this SKCA case at hand, the court examined R. v. Ishmael 2012 ABCA 282, 536 A.R. 229, which ruled that an admission of consumption of alcohol is sufficient to meet the objective part of the test under s 254(2), that the reasonable suspicion threshold under s. 254(2) CC is low, and that police officers should not be required to enter into expert-type analyses regarding how much alcohol would be in a person’s body based on the amounts and timing of the consumption. Further the court stated, there are simply too many factors which can affect these conclusions including a person’s height, weight, food consumption, size of drink, and alcohol concentration. In addition, entering into this type of questioning would only prolong and complicate the episode of detention and potential search imposed upon motorists.

Additionally, the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 (QL) provides guidance as follows:

At paragraph 27:

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

At paragraph 28:

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. …

At paragraph 34:

However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations….

In this case at bar, the SKCA found that the Constable testified that she stopped the truck to check for driver’s license, registration, and sobriety, late at night and noted the vehicle was leaving the vicinity of a local bar and indeed was told by the people in the truck that they had just left the nearby tavern. Finally, the driver admitted to drinking. The time of night, recent departure from the bar, and the respondent’s admission of alcohol consumption was, in the court’s opinion, enough. In its opinion, the SKCA ruled that the trial judge seemed to have elevated the threshold and even suggested a more thorough police investigation.  The SKCA found that the learned trial judge erred in law when he did so, and in this case the totality of the circumstances known to the Constable did establish a reasonable basis for her suspicion.

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