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into the part of the warrant that required production of historical messages predating the issuance of the warrant was rescinded since both the Crown and Telus conceded that a production order was available to obtain those messages, so therefore the SCC did not have to decide on that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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Filed under Recent Case Law, Search and Seizure

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