In the area of electronic search and seizure, the criminal law struggles to keep pace with technological change. Police investigators are frequently called upon to apply, and lawyers and the courts to interpret, sections of the Criminal Code that do not reflect modern technology. In Telus Communications Co. the Supreme Court was called upon to interpret the law in exactly such a context. The concurring majority reasons depart from the conventional interpretation of the relevant wiretap and general warrant provisions in order to bolster the privacy of electronic communications by requiring the police to obtain a wiretap authorization to prospectively seize text messages stored by Telus: 2013 SCC 16.
Telus, like most mobile telecommunication enterprises, provides text message services, also known as SMS. Unlike most of these other service providers, Telus stores messages of their subscribers on a computer database for a period of time. They kept these emails for their own purposes and not at the request of any police authorities. Aware of this practice, many police investigators had taken to obtaining general warrants or production orders in order lawfully access these stored text messages. The Owen Sound Police Service took this practice one step further. They sought and obtained a general warrant from the court to obtain these text messages prospectively; during a period of 13 days Telus was required to provide to the Owen Sound Police the text messages from their computer database sent or received within the past 24 hours in relation to a specified account.
Lawyers for Telus brought an application to the Ontario Superior Court to quash the general warrant. After this application was denied Telus then brought an appeal to the Supreme Court of Canada. The arguments of the parties at the Superior Court and Supreme Court hearing were basically as follows:
Telus argued that the 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. [Para. 10].
The issues before the court boiled down to two points:
- First, did the obtaining of the text messages on a prospective basis amount to an “intercept” as defined in s. 183 of the Code therefore requiring a wiretap authorization under Part VI of the Code.
- Second, if the seizure of the stored text messages was not an interception, was the issuance of a general warrant nevertheless barred by the “no other provision” requirement in s. 487.01(1)(c) because the technique sought to be used was the substantive equivalent of a wiretap?
In relation to the first question, Abella J. writing on behalf of Justices Fish and LeBel held that the way that “intercept” had been defined in the past was unduly technical:
The issue then is how to define “intercept” in Part VI. 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. [....] A technical approach to “intercept” would essentially render Part VI irrelevant to the protection of the right to privacy in new, electronic and text-based communications technologies, which generate and store copies of private communications as part of the transmission process.
…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. [Emphasis added]; [paras. 33-34].
Abella J. consciously bolsters the privacy rights of individuals by departing from the conventional definition of “intercept”:
The use of the word “intercept” implies that the private communication is acquired in the course of the communication process. In my view, the process encompasses all activities of the service provider which are required for, or incidental to, the provision of the communications service. Acquiring the substance of a private communication from a computer maintained by a telecommunications service provider would, as a result, be included in that process. [Para. 37].
This re-definition of the term is driven by a perceived unfairness derived from technological differences that impact the level of privacy accorded by different legislative provisions:
…Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown concedes that a Part VI authorization would be required. 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. [Emphasis added]; [para. 40].
In light of Abella J.’s interpretation of “intercept”, it is clear that a wiretap authorization was available to obtain the stored text messages. As such, the “no other provision” in 487.01(1)(c) was not met and the police could not obtain a general warrant.
Concurring in the result, Moldaver J., writing for Karakatsanis J. and himself, felt that it was unnecessary to focus on the definition of the term “intercept” as the conduct of the police in seeking to prospectively seize the stored text messages was the functional equivalent of a Part VI intercept and thus failed to satisfy the “no other provision” requirement of s. 487.01(1)(c). Mr. Justice Moldaver arrived at the same conclusion as Justice Abella while seeking to avoid the mischief that might arise from re-defining what constitutes an intercept:
I choose a different path because I am reluctant to use this case as a vehicle to undertake an analysis of what constitutes an intercept for purposes of Part VI. In approaching the matter as I have, I am not unmindful of the need to address the risks to privacy posed by the digital age. The task of adapting laws that were a product of the 1970s to a world of smartphones and social networks is a challenging and profoundly important one. But the resolution of whether what occurred here was or was not, strictly speaking, an intercept is unnecessary, in my view, because there is a narrower basis for decision that guards against unforeseen and potentially far-reaching consequences in this complex area of the law. [Para. 53].
Justice Moldaver has arguably changed the landscape in relation to the issuance of general warrants by creating a “substantive equivalency” test in relation to section 487.01(1)(c). The conclusion that the general warrant used by the Owen Sound Police Service was substantively the same as a wiretap interception and therefore the requirements of the “no other provision” section were not met is a novel analysis.
In his dissent joined by the Chief Justice, Cromwell J. expressed grave concern regarding the effects that Justice Moldaver’s approach will have upon the future use of general warrants by injecting uncertainty into an area of the law where predictability and clarity are important:
…In my view, predictability and clarity in the law are particularly important in the area of judicial pre-authorization of searches. Judicial pre-authorization is a cornerstone of the Charter’s protection against unreasonable searches and seizures. The primary objective of pre-authorization is not to identify unreasonable searches after the fact, but to ensure that unreasonable searches are not conducted. The requirements for pre-authorization should be as clear as possible to ensure that Charter rights are fully protected. [Para. 172].
In relation to the issue of whether the use of the general warrant to prospectively seize the stored text messages constituted an intercept, Cromwell J stated:
The investigative technique authorized by the general warrant in this case was not an interception of private communications that could be authorized by s. 186. The general warrant provides the police with copies from Telus of stored messages which it had previously intercepted; police only obtain disclosure of the messages when Telus compiles them from its databases and sends them by e-mail. Far from being a “technical” difference, the distinction between disclosure of an intercepted communication and interception of a communication is fundamental to both the purpose and the scheme of the wiretap provisions. [Emphasis added]; [para. 131].
The potential for future mischief created by the Abella J’s broader interpretation of intercept was noted by Justice Cromwell:
…[I]f, as my colleague Abella J. maintains, “[a]cquiring the substance of a private communication from a computer maintained by a telecommunications service provider” constitutes an interception, then wiretap authorizations may well be required for a host of searches that are clearly not contemplated by Part VI of the Code. Police may well have to obtain a Part VI authorization any time they wanted access to the content of private communications, no matter when the message had been sent or whether it had been received or stored on the recipient’s device. For example, on a broad reading of “acquire” police seizing e-mails on a Blackberry device would be engaged in an interception because they are acquiring the content of private communications. Similarly, a person authorized to search a computer system as contemplated under s. 487(2.1) would need a wiretap authorization to seize copies of personal communications stored on those computers (including, for example, e-mail messages and stored copies of Internet chats). This approach would run counter to a line of cases in which Canadian courts have found that search warrants are sufficient to allow police to access documents and data stored on a computer: See e.g. R. v. Cole, 2012 SCC 53, at para. 73; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 33; R. v. Bahr, 2006 ABPC 360, 434 A.R. 1; R. v. Cross, 2007 Can LII 64141 (Ont. S.C.J.), at paras. 25-27; R. v. Little, 2009 CanLII 41212 (Ont. S.C.J.), at para. 154; R. v. Tse, 2008 BCSC 906, [2008] B.C.J. No. 1766 (QL), at para. 198; R. v. Weir, 2001 ABCA 181, 281 A.R. 333, at para. 19. If the phrase “acquire a communication or . . . the substance, meaning or purport thereof” is given a broad meaning, stored private communications that have long been accessible to police under ordinary search warrants or production orders would fall under Part VI. [Emphasis added]; [para. 155].
It is understandable that a majority of the members of the Supreme Court of Canada chose to enhance the privacy rights of individuals in our era of rapid technological change and the concomitant concerns about the erosion of our privacy. It must have seemed inequitable that the police could prospectively obtain these text messages from Telus without utilizing the more stringent wiretap authorization process due to a technological quirk in Telus’ operation. Yet, in spite of this decision, some stored text messages can still be obtained without a wiretap authorization.
The Supreme Court was not asked to determine whether a general warrant is available to authorize the production of stored historical text messages from the service provider, or to consider the operation and validity of the production order provisions with respect to private communications. Media coverage of the Telus decision has glossed over this important limitation to the case, likely leaving many members of the public of the view that the police require a wiretap authorization in all circumstances in order to seize stored text message communications. The Telus case will undoubtedly be the touchstone for future discussions regarding the seizure of stored electronic cases. We will not likely have to wait long to see whether Justice Cromwell’s concerns regarding the majority approaches will be borne out.
BCH