R. v. Jones 2017 SCC 60 – Jones was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co-accused, pursuant to a production order obtained under s. 487.012 (at that time, but now s. 487.014) of the Criminal Code. Jones challenged the Production Order under s. 8 of the Canadian Charter of Rights and Freedoms. He argued that law enforcement must obtain a “wiretap” authorization under Part VI of the Code to seize records of historical text messages from a service provider in order for the seizure to comply with s. 8 of the Charter.
Telus complied with a Production Order and provided the requested records to the police. The records revealed a text message exchange concerning the potential transfer of a firearm. The exchange occurred between the co-accused’s phone and a phone used by Jones, but registered in the name of his spouse. Relying in part on the text messages, the investigators obtained a Criminal Code Part VI authorization for a number of phones associated with the suspects. Communications intercepted under it were then used to obtain an additional Part VI authorization. On the basis of those subsequent interceptions, search warrants were granted and executed. The fruits of those searches led to Jones’s prosecution for marihuana trafficking and proceeds of crime charges. The firearm trafficking charges against him, on the other hand, were brought largely on the basis of the text messages obtained under the Production Order.
Not surprisingly, the SCC ruled that it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient (in short, there is a reasonable expectation of privacy in texts stored by a service provider). However, historical text messages denote messages that have been sent and received, not those still in the transmission process. In such cases, a Part VI wiretap authorization is unnecessary because the police are not seeking an order authorizing the prospective production of future text messages. Nor is the police seeking evidence in text messages that are still in the transmission process. Therefore, the search and seizure of historical text messages can be properly authorized by the production order provisions of the Criminal Code, and does not breach s. 8 of the Charter.