SUPREME
COURT OF CANADA
Citation: R. v. Jones, 2017 SCC 60
|
Appeal Heard: March
23, 2017
Judgment
Rendered: December 8, 2017
Docket:
37194
|
Between:
Tristin
Jones
Appellant
and
Her
Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of
Ontario
Respondents
-
and -
Attorney
General of British Columbia, Director of Criminal and Penal Prosecutions,
Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association,
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and
British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté
and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 82)
|
Côté J. (McLachlin C.J. and Moldaver, Karakatsanis and
Gascon JJ. concurring)
|
Concurring
Reasons:
(paras. 83 to 87)
|
Rowe J.
|
Dissenting
reasons:
(paras. 88 to 119)
|
Abella J.
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
r. v. jones
Tristin Jones Appellant
v.
Her Majesty The Queen in Right of Canada
and
Her Majesty The Queen in Right
of Ontario Respondents
and
Attorney General of British Columbia,
Director of Criminal and Penal
Prosecutions,
Criminal Lawyers’ Association of
Ontario,
Canadian Civil Liberties Association,
Samuelson‑Glushko Canadian
Internet Policy
and Public Interest Clinic and
British Columbia Civil
Liberties Association Interveners
Indexed as: R. v.
Jones
2017 SCC 60
File No.: 37194.
2017: March 23; 2017: December 8.
Present:
McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and
Rowe JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights —
Enforcement — Standing — Search and
seizure — Evidence — Admissibility — Text messages — Accused seeking to exclude
at trial text message records obtained by production order from telecommunications
service provider — Whether accused has reasonable expectation
of privacy in text messages stored by service provider and therefore standing under s. 8 of Canadian Charter of Rights
and Freedoms to
challenge production order — Whether accused permitted to rely on Crown theory
for purposes of establishing subjective expectation of privacy.
Criminal law — Evidence — Production orders — Invasion of privacy — Interception of communications
— Police obtaining
order under s. 487.012 of Criminal Code for production of text messages stored
on service provider’s infrastructure — Whether production
order provides lawful authority for seizing stored text messages or whether wiretap authorization under Part VI of Criminal Code
required for seizure to comply with s. 8 of Canadian Charter of Rights and
Freedoms — Criminal Code, R.S.C. 1985, c. C‑46,
ss. 183 “intercept”, 487.012.
J
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 that were obtained under a production
order pursuant to s. 487.012 of the Criminal Code (now s. 487.014 ).
Prior to trial, J sought to exclude the text messages on the basis that
obtaining them by means of a production order contravened his s. 8 Charter
right. The trial judge found that J lacked standing to challenge the production
order under s. 8 and he was therefore convicted. J’s appeal against
conviction was dismissed.
Held (Abella J. dissenting): The appeal should be dismissed and the
production order upheld.
Per McLachlin C.J. and Moldaver, Karakatsanis, Gascon and Côté JJ.:
J had a reasonable expectation
of privacy in the text messages stored by Telus and therefore, standing under s. 8 of the Charter to challenge the production order. Whether
a claimant has a reasonable expectation of privacy must be answered with regard
to the totality of the circumstances of a particular case. Claimants must
establish that they had a direct interest in the subject matter of the search,
that they had a subjective expectation of privacy in that subject matter and
that their subjective expectation of privacy was objectively reasonable.
In
this case, the subject matter of the search is the electronic conversation between J and his co‑accused.
J should have been permitted to rely on the Crown’s theory that he authored those
text messages for the purposes of establishing his direct interest in their
subject matter and his subjective expectation of privacy in the messages. An accused
mounting a s. 8 Charter claim may ask the court to assume as true
any fact that the Crown has alleged or will allege in the prosecution against
him in lieu of tendering evidence probative of those same facts in the voir
dire. This coheres with the relatively modest evidentiary foundation
required to establish the subjective expectation element in the totality of the
circumstances analysis, as well as the principle against self‑incrimination.
It
follows that J subjectively expected privacy in records of his electronic
conversation found in the service provider’s infrastructure. Text messages are
private communications. This
is not in dispute in this case. Moreover, as the application judge found, J and
his co‑accused used third‑party names so as to avoid detection or
association with the text messages. This suggests that they intended their
communications to remain private.
Finally,
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. That is intuitive. One would not reasonably expect
the service provider to share the text messages with an unintended recipient,
or post them publicly for the world to see. In this case, it was therefore
reasonable for J to expect that the text messages that he sent would not be
shared by Telus with any parties other than the intended recipient, notwithstanding
that he relinquished direct control over those messages. Neither the absence of
a contractual policy, nor the fact that the production order targeted a phone
registered to a third party deprive J of that protection.
On
the totality of the circumstances, therefore, J had a reasonable expectation of
privacy in the text messages and standing to challenge the validity of the production
order. However, J’s s. 8 Charter right was not breached because
records of text messages stored on a service provider’s infrastructure were
lawfully seized by means of a production order under s. 487.012 of the Criminal
Code . Based on its plain meaning and read in context, the term “intercept”
in s. 183 of Part VI of the Criminal Code encompasses
the production or seizure of historical text messages stored by a service
provider. Historical text messages denote messages that have been sent and
received, not those still in the transmission process. In this case, there is
no question that Telus initially intercepted the communications between J and
his co‑accused, presumably pursuant to an exception for service delivery
purposes under s. 184(2) . However, in light of the statutory scheme’s
distinction between interception, use and retention, and disclosure, it is
clear that Telus’ subsequent storing and provision of the communications to the
law enforcement did not constitute additional interceptions. Rather, Telus
retained the intercepted communications under s. 184(3) and then disclosed
them to the police as contemplated by s. 193(2) .
In
this case, a Part VI wiretap authorization was unnecessary because the
police did not seek an order authorizing the prospective production of future
text messages. Nor is there any evidence that the production order resulted in
the production of text messages that were still in the transmission process. Therefore,
the search and seizure of J’s text messages were properly authorized by the
production order provision in s. 487.012 of the Criminal Code ,
and did not breach J’s s. 8 Charter right.
Per Rowe J.: There is agreement with the majority that, as a
matter of statutory interpretation, a production order pursuant to s. 487.012
of the Criminal Code (now s. 487.014 ), authorizes the police to
request the disclosure of text messages from a service provider once those
messages have been sent and received. Conversely, a Part VI Criminal
Code authorization is required to intercept those messages as they are
being transmitted. Given that the records of text messages are stored by the
service provider in this case the moment they are sent, however, it makes
little difference whether the police “intercept” them or simply obtain them
through a production order immediately after they are sent. It appears that the
police can in effect sidestep the requirements of Part VI by obtaining a
production order immediately after the messages are sent. No settled view is
expressed as to whether this anomaly reflects a failure of s. 487.014 to
meet the requirements imposed by s. 8 of the Charter because this issue
was not raised in argument.
Per Abella J. (dissenting): There is agreement with the majority
that J had a reasonable expectation of privacy in his sent text messages and,
as a result, had standing under s. 8 of the Charter to challenge
the production order. But since the messages were obtained pursuant to a
production order rather than a Part VI Criminal Code authorization,
the search and seizure of those messages was not authorized by law and was
therefore unreasonable.
The police obtained several production orders pursuant to s. 487.012
of the Criminal Code directed at the service providers Bell, Rogers and
Telus. Only Telus stored the content of incoming and outgoing text messages for
a period of time after the messages were sent and received. No text messages
were obtained from accounts held with the other service providers. Telus’
unique storage practices, rather than the underlying principles in Part VI,
led to the production of copies of historical text messages from the targeted Telus
account, and the loss of J’s privacy protections available under Part VI. By
prioritizing a temporal distinction to determine the level of privacy
protection for text messages, Telus customers are left with less protection
than those using other service providers who do not store copies of text
messages simply because Telus stores copies of text that pass through its infrastructure.
This means that the privacy rights of those who text depend on which service
provider they use rather than on the fact that they are texting as a means of
privately communicating.
The
term “intercept” in s. 183 of the Criminal Code should be
interpreted in the context of the broader Part VI scheme and the purpose
it is meant to serve, namely, to prevent the state from acquiring private
communications without lawful authorization and to protect the privacy
interests inherent in the content of private communications. The Part VI
protections should be available for historical as well as for prospective
interception. The timing of the state’s request for information should not
distort the communicative dimension of a text message exchange. Interpreting
“intercept[ion]” of a private communication should focus on the content, not on
the timing of what the investigative technique seeks to access, or on the
vagaries of the service provider’s technological practices.
When
the police obtain copies of text messages from a service provider, they are
acquiring a complete record of all electronic conversations that took place
during a given period. The informational content acquired by the state is a
complete record of all private communications in the given period. A singular
focus on the historical dimension of the record should not detract from
the content and character of this record. It is a record of a conversation that
took place between individuals, albeit in an electronic format, that has been
assigned a specific timestamp. This record may capture electronic conversations
between several people innocently participating in an electronic conversation
with the targeted recipient, as well electronic conversations involving
multiple participants engaged in a group text.
Since
no Part VI authorization was obtained, the acquisition of copies of J’s historical
text messages through the production order was invalid and breached J’s rights
under s. 8 of the Charter .
The
messages should be excluded under s. 24(2) of the Charter . The
evolution of shifting technology has resulted in a correspondingly evolving
jurisprudence which tries to keep pace with the impact of technology on
constitutional rights. Where no case directly on point has been decided, the
police have two choices: to use the jurisprudential gap as a rationale for
being more intrusive, or to exercise greater caution before interfering
with legislatively endorsed privacy rights. The better judicial approach is one
that encourages conduct on the part of the police that errs on the side of
being protective of the rights of the public, rather than one that endorses Charter
breaches in deference to the mechanics of new technologies.
The
impact of the Charter ‑infringing conduct on J’s Charter ‑protected
privacy interests under s. 8 of the Charter was significant.
Whether they take the form of a historical record or occur in real‑time,
electronic conversations have the potential to reveal information going to the
individual’s biographical core, including information which tends to reveal
intimate details of the lifestyle or personal choices of an individual. While the
police did not technically act in bad faith, their failure to seek Part VI
authorization put public confidence in the administration of justice at serious
risk. The impact of their conduct on J’s considerable, Charter ‑protected
privacy interests under s. 8 of the Charter was significant, which
outweighs the public’s interest in seeing a determination of J’s case on the
merits.
Cases Cited
By Côté J.
Applied:
R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; considered: R. v. TELUS
Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Shayesteh (1996), 31 O.R. (3d) 161; R. v. Duarte, [1990] 1 S.C.R. 30; referred to: R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Cole,
2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Tessling, 2004 SCC 67, [2004]
3 S.C.R. 432; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v.
Collins, [1987] 1 S.C.R. 265; R. v. Wong, [1990] 3 S.C.R. 36; R.
v. Marakah, 2017 SCC 59; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Gauthier, [1977] 1
S.C.R. 441; R. v. Jir, 2010 BCCA 947, 264 C.C.C. (3d) 64; R. v. Hurry, 2002 ABQB 420, 165 C.C.C. (3d)
182; R. v. Henry, 2005
SCC 76, [2005] 3 S.C.R. 609; R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R.
311; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v. Jones,
[1994] 2 S.C.R. 229; R. v. White, [1999] 2 S.C.R. 417; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
295; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v.
Dyment, [1988] 2 S.C.R. 417; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R.
227; R. v. Pugliese (1992), 71 C.C.C. (3d) 295; R. v. Trapp, 2011
SKCA 143, 377 Sask. R. 246; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R.
v. Belcourt, 2015 BCCA 126, 322 C.C.C. (3d) 93; R.
v. McQueen (1975), 25 C.C.C. (2d) 262; R. v.
Giles, 2007 BCSC 1147; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C.
(3d) 280; R. v. Finlay (1985),
23 C.C.C. (3d) 48; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R.
v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Vu, 2013
SCC 60, [2013] 3 S.C.R. 657.
By Abella J. (dissenting)
R.
v. Marakah, 2017 SCC 59; R.
v. TELUS Communications Co., 2013 SCC 16, [2013] 2
S.C.R. 3; R. v. Hoelscher, 2016 ABQB 44; R. v. Croft, 2013 ABQB 640, 304 C.C.C.
(3d) 279; R. v. Carty, 2014 ONSC 212; R. v. Grant, 2009 SCC 32, [2009]
2 S.C.R. 353; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R.
v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, ss. 7 , 8 , 13 , 24(2) .
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 99 , 164.2(1) (b)(ii),
164.3(4) (b), 182(2) (e), Part VI, 183 “authorization”, “intercept”,
“private communication”, 183 to 196, 184, 184 to 192, 193, 462.34(6)(a)(ii), 462.41(3)(b),
462.42(1)(b), 487, 487.01(1)(c), 487.012 [ad. 2004, c. 3, s. 7], 487.014 [ad.
2014, c. 31, s. 20; formerly s. 487.012 ], 490.4(3), 490.5 (l)(c).
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 3 , 5(3) , 7 .
Authors
Cited
Driedger,
Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths,
1983.
Fontana,
James A. and David Keeshan. The Law of Search and Seizure in Canada,
9th ed. Toronto: LexisNexis, 2015.
Hutchison,
Scott C., et al. Search and Seizure Law in Canada, vol. 1.
Toronto: Carswell, 1991 (loose‑leaf updated 2017, release 7).
Magotiaux,
Susan. “Out of Sync: Section 8 and Technological Advancement
in Supreme Court Jurisprudence” (2015), 71 S.C.L.R. (2d) 501.
Penney,
Steven. “The Digitization of Section 8 of the Charter : Reform or
Revolution?” (2014), 67 S.C.L.R. (2d) 505.
Stewart,
Hamish. “Normative Foundations for Reasonable Expectations of Privacy” (2011),
54 S.C.L.R. (2d) 335.
APPEAL
from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and
LaForme JJ.A.), 2016 ONCA 543, 131 O.R. (3d) 604, 361 C.R.R. (2d) 350, 338
C.C.C. (3d) 591, 350 O.A.C. 274, [2016] O.J. No. 3737 (QL), 2016
CarswellOnt 10858 (WL Can.), affirming the accused’s convictions for firearms
and drug trafficking offences and the pre-trial application ruling. Appeal dismissed,
Abella J. dissenting.
Patrick McCann, Peter Mantas and Ewan Lyttle, for the appellant.
Nicholas E. Devlin and Jennifer Conroy, for the respondent Her Majesty The Queen in Right of Canada.
Randy Schwartz and Andrew Hotke, for the respondent Her Majesty The Queen in Right of Ontario.
Written submissions only by Daniel M. Scanlan, for the intervener the Attorney
General of British Columbia.
Ann Ellefsen‑Tremblay and Daniel Royer, for the intervener the Director of Criminal and Penal
Prosecutions.
Susan M. Chapman, Naomi Greckol‑Herlich
and Bianca Bell, for the intervener the Criminal
Lawyers’ Association of Ontario.
Christine Lonsdale and Charlotte‑Anne Malischewski, for the intervener the Canadian
Civil Liberties Association.
Jill R. Presser and David A. Fewer,
for the intervener the Samuelson‑Glushko Canadian Internet Policy and
Public Interest Clinic.
Gerald Chan, for the intervener the British
Columbia Civil Liberties Association.
The judgment of McLachlin C.J and Moldaver,
Karakatsanis, Gascon and Côté J. was delivered by
Côté
J. —
I.
Overview
[1]
The appellant, Mr. 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 (now
s. 487.014) of the Criminal Code, R.S.C. 1985, c. C-46 (the
“Production Order ”). As in the courts below, the appellant challenges the
Production Order under s. 8 of the Canadian Charter of Rights
and Freedoms . He argues 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 .
[2]
His appeal arises out of an Ottawa Police
Service investigation into firearms trafficking in the Ottawa, Ontario area.
Based on evidence gathered in that investigation, the police obtained the
Production Order directing Telus to disclose stored records of any incoming or
outgoing text messages on a particular Telus subscriber account associated with
the appellant’s co-accused, Mr. Waldron. The targeted account was
registered in the name of “Kurt Gilles.” There is no evidence as to
whether Kurt Gilles exists or whether Mr. Waldron merely used that name as
an alias for the purposes of his cell phone subscription.
[3]
Telus complied with the Production Order and
provided the requested records to the police. The records revealed a text
message exchange (the “Text Messages”) concerning the potential transfer of a
firearm. The exchange occurred between the Gilles phone and a phone used by the
appellant, but registered in the name of his spouse.
[4]
Relying in part on the Text Messages, the
investigators obtained a Criminal Code Part VI authorization
(“First Authorization”) for a number of phones associated with the suspects.
Communications intercepted under it were then used to obtain an additional
Part VI authorization (“Second Authorization”). On the basis of those
subsequent interceptions, search warrants were granted and executed. The fruits
of those searches led to the appellant’s prosecution for marijuana 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.
[5]
Prior to the commencement of the trial, the
appellant sought to exclude the Text Messages on the basis that obtaining them
by means of a Production Order contravened his s. 8 Charter right.
Additionally, he challenged the First and Second Authorizations, resulting
search warrants and the admissibility of the evidence obtained on the basis of
those authorizations insofar as they derived from the Production Order. The
latter authorizations and search warrants are not directly at issue on this
appeal. Only the Production Order — as lawful
authorization — and the Text Messages — as evidence derived
therefrom — are in question.
[6]
In his s. 8 Charter application, the
appellant led no evidence demonstrating that he authored and sent the Text
Messages. Instead, he argued that he was entitled to rely on the Crown’s theory
that he was the author of the Text Messages. Applying this Court’s decision in R.
v. Edwards, [1996] 1 S.C.R. 128, the trial judge found that the
appellant lacked standing to challenge the Production Order under s. 8 of
the Charter . The trial judge also dismissed an application to re-open
her original s. 8 ruling following the release of this Court’s decision in
R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, during
Mr. Jones’ trial. In doing so, she reasoned that TELUS did not
address the validity of a production order for obtaining records of historical
text messages. The appellant was subsequently convicted of several firearms
trafficking and drug trafficking offences.
[7]
On appeal, the majority of the Court of Appeal
upheld the trial judge’s decision regarding the s. 8 standing issue (2016
ONCA 543, 131 O.R. (3d) 604). That was dispositive of the appeal. The majority
nevertheless went on to assess the lawfulness of the search at the second stage
of the s. 8 inquiry and upheld the use of a production order to obtain records
of historical text messages. In separate reasons, LaForme J.A. did not
opine on the standing issue, but concurred with the majority’s holding
regarding the lawfulness of the search. The Court of Appeal was therefore
united in its disposition of dismissing the appeal.
[8]
The appeal to this Court raises three questions.
First, at his s. 8 Charter application, was the appellant entitled
to rely on the Crown’s theory that he authored the Text Messages in order to
establish his subjective expectation of privacy in them? Second, if so, was the
appellant’s subjective expectation of privacy objectively reasonable such that
he has standing to make his s. 8 claim? And third, did the Production
Order provide lawful authority for seizing records of historical text messages
located in the hands of a service provider?
[9]
I would answer all three questions in the
affirmative. I conclude that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or
will allege in the prosecution against him in lieu of tendering evidence
probative of those same facts in the voir dire. In this case,
Mr. Jones should have been permitted to rely on the Crown allegation that
he authored the Text Messages, and his subjective
expectation of privacy in the subject matter of the search is accordingly established.
Further, it is objectively reasonable for the sender of a text message to
expect that a service provider will maintain privacy over the records of his or
her text messages stored in its infrastructure. I conclude, however, that the
appellant’s s. 8 rights were not breached because records of historical
text messages were lawfully seized by means of a production order under
s. 487.012 of the Code (now s. 487.014).
[10]
For these reasons and the reasons that follow, I
would dismiss the appeal and uphold the validity of the Production Order.
II.
Analysis
[11]
Section 8 of the Charter provides
that “[e]veryone has the right to be secure against unreasonable search or
seizure.” Its basic interpretive structure is well known and consists of two
stages. First, the claimant must show that a state act constituted a search or
seizure because it invaded his or her reasonable expectation of privacy in the
subject matter of the search (R. v. Cole, 2012 SCC 53, [2012] 3
S.C.R. 34, at para. 34; R. v. Tessling, 2004 SCC 67, [2004]
3 S.C.R. 432, at para. 18). Second, the claimant must show that the search
or seizure was itself unreasonable.[1] As a general rule, a Charter claimant must prove both the
existence of a reasonable expectation of privacy in the relevant subject matter
and the unreasonableness of the search or seizure of that subject matter in
order to make out a breach of s. 8 (see R. v. Collins,
[1987] 1 S.C.R. 265).
[12]
This appeal engages both stages of the s. 8
inquiry.
A.
Does the Appellant Have Standing to Challenge the Production
Order?
[13]
I turn first to the question of standing. Does the appellant have
a reasonable expectation of privacy in the subject matter of the search? This
question has always been answered with regard to the totality of the
circumstances of a particular case (see Edwards, at
para. 31; R. v. Wong, [1990] 3 S.C.R. 36, at p. 62). In
R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, Cromwell J. explained that,
in the context of an informational privacy claim, four lines of inquiry may
assist in guiding the required analysis (para. 18):
(1)
an examination of the subject matter of the
alleged search;
(2)
a determination as to whether the claimant had a
direct interest in the subject matter;
(3)
an inquiry into whether the claimant had a
subjective expectation of privacy in the subject matter; and
(4)
an assessment as to whether this subjective
expectation of privacy was objectively reasonable, having regard to the
totality of the circumstances.
(See
also Cole, at para. 40.)
(1)
What is the Subject Matter of the Search?
[14]
First, properly characterizing the subject
matter of the search is vital. As explained in R. v. Marakah, 2017
SCC 59, where the state searches records of text messages, it
is “the electronic conversation between two or more people” that it seeks to
access (para. 19, per McLachlin C.J.). Following Marakah,
then, the subject matter of the search here is properly characterized as the
“electronic conversation” between Mr. Jones and the user of the Gilles
phone.
(2)
Does the Claimant Have a Direct Interest and
Subjective Expectation of Privacy in the Subject Matter of the Search?
[15]
In this case, the courts below held that the
appellant’s s. 8 claim fails at the doorstep because he never established
that the Text Messages were indeed his own. On appeal, we may readily
infer that if the appellant authored the Text Messages, then he had a
direct interest in their subject matter insofar as they were capable of
describing aspects of his biographical core. As a factual matter, it is also
uncontested that if the appellant authored the Text Messages, then he
had a subjective expectation of privacy in records of them stored by the service
providers involved in their transmission. Therefore, the real question
dictating the result at the second and third steps of the above framework is
whether the appellant should have been permitted to rely on the Crown’s theory
that he was the author of the Text Messages for the purposes of establishing
s. 8 standing. As explained below, I would answer that question in the
affirmative.
(a)
Should the Appellant Have Been Permitted to Rely
on the Crown Theory for the Purposes of Establishing His Subjective Expectation
of Privacy in the Text Messages?
[16]
At trial, the Crown tendered the Text Messages
as evidence that Mr. Jones offered to transfer a firearm, contrary to
s. 99 of the Criminal Code . At his Charter application
challenging their admission, Mr. Jones argued that he need not admit
authorship of the impugned evidence in order to mount his s. 8 claim.
Instead, he said that for the purposes of establishing his subjective
expectation of privacy, he was entitled to rely on the Crown’s allegation that
he is indeed the author of the Text Messages, without admitting as much.
[17]
In reply, the respondent Crowns state,
correctly, that the burden in a Charter voir dire is on the claimant,
and that discharging that burden typically requires the claimant to present
evidence. They say the appellant’s s. 8 claim must fail because the
accused is not entitled to rely on the federal Crown’s theory in the voir
dire, and “[t]here was no admission of [his] identity as the sender of the
texts anywhere in the pre-trial motion record”.
[18]
With respect, I would decline to endorse this
position. It effectively creates a catch-22 for an accused in Mr. Jones’
shoes: admit that you are the author in the Charter voir dire, or
forego the ability to challenge admission of the evidence tendered to prove
that you are the author in the trial proper.
[19]
Instead, I conclude that Mr. Jones should
have been permitted to rely on the Crown’s theory that he authored the Text
Messages for the purpose of establishing his subjective expectation of privacy
in the subject matter of the search. As I explain below, this result coheres
with the relatively modest evidentiary foundation required to establish the
subjective expectation element in the totality of the circumstances analysis,
as well as the principle against self-incrimination.
[20]
To begin, the subjective expectation requirement
has never been “a high hurdle” (R. v. Patrick, 2009 SCC 17,
[2009] 1 S.C.R. 579, at para. 37). And for good reason. Overemphasizing
the presence or absence of a subjective expectation of privacy cannot be
reconciled with the normative nature of the s. 8 inquiry. As
Justice Binnie explained in Tessling, at para. 42:
The subjective expectation
of privacy is important but its absence should not be used too quickly to
undermine the protection afforded by s. 8 to the values of a free and
democratic society. . . . It is one thing to say
that a person who puts out the garbage has no reasonable expectation of privacy
in it. It is quite another to say that someone who fears their telephone is
bugged no longer has a subjective expectation of privacy and thereby
forfeits the protection of s. 8 . Expectation of privacy is a normative
rather than a descriptive standard. [Underlining added.]
[21]
The idea here is simple: a Charter
claimant’s subjective belief that Big Brother is watching should not, through
the workings of s. 8 , be permitted to become a self-fulfilling prophecy.
The importance of the subjective expectation element is therefore attenuated in
the s. 8 analysis, and the evidentiary foundation required to establish
that element is accordingly modest. A subjective expectation of privacy can be
presumed or inferred in the circumstances in the absence of the claimant’s
testimony or admission at the voir dire (see Patrick, at
para. 37; Tessling, at para. 38; Cole, at
para. 43). The modest evidentiary foundation necessary to establish one’s
subjective expectation of privacy therefore reflects the notion that
s. 8 ’s normative import transcends an individual claimant’s subjective
expectations.
[22]
This modest evidentiary foundation also aligns
with the practical reality of criminal proceedings. For
the defence, it may be a dangerous gambit to call an accused to the stand. That
is equally true in a voir dire, insofar as an accused’s testimony may
later be used for incrimination or impeachment purposes or result in tactical
disadvantages. Therefore, to the extent that the subjective expectation element
can be presumed or inferred in the circumstances, the law has not required an
accused to assume the risks of testifying in order to prove that he
subjectively expected privacy in the subject matter of the search.
[23]
The potential risks of testifying or making an
admission through counsel in a s. 8 voir dire are apparent in
Mr. Jones’ case. An admission that he authored the Text Messages was
tantamount to admitting the charged offence of illegally offering to transfer a
firearm. Indeed, at trial, Mr. Jones was convicted because the Crown
proved beyond a reasonable doubt that “a series of text messages . . .
between Waldron and Jones demonstrate[d] a concerted effort to work together to
offer to transfer firearms” (trial judgment, A.R., vol. I, at
pp. 42-102, at paras. 94 and 95-100). An admission that he was the
author was therefore, in practical terms, an admission of both identity and the
actus reus of the offence.
[24]
I am mindful of the rule that evidence in the voir
dire is not automatically admissible in the trial proper (see R. v.
Gauthier, [1977] 1 S.C.R. 441, at p. 452; R. v. Jir, 2010
BCCA 947, 264 C.C.C. (3d) 64, at para. 10). Still, an admission at the voir
dire can restrict the permissible scope of defence evidence and submissions
at trial. If Mr. Jones admitted authorship of the Text Messages at the voir
dire, his counsel would have been ethically barred from arguing that
someone else had authored the Text Messages in the trial proper. In theory, he
could have still held the Crown to its burden to prove authorship of the Text
Messages (see, e.g., R. v. Hurry, 2002 ABQB 420, 165 C.C.C. (3d) 182, at paras. 1 and 3). But
in practice, this presents an accused in Mr. Jones’ shoes with difficult
tactical decisions. Should he admit authorship in the s. 8 voir dire in
order to have a chance at holding the state to its Charter obligations?
Or should he forego a s. 8 claim in order to more rigorously contest the
Crown’s theory at trial? Perhaps more significantly, should he assume the risk
that the admission could be used by the Crown for inculpatory or impeachment
purposes?[2]
[25]
The federal Crown submits these choices follow
from the fact that the Charter is not a “tactical Bill of Rights” which
permits the accused to have his cake and eat it too (transcript, at
p. 137). With respect, I see the matter differently for three reasons.
[26]
First, the Crown’s argument on this point cuts
both ways. As the intervener Criminal Lawyers’ Association of Ontario argues,
the Crown should not be permitted to say there is sufficient evidence proving
Mr. Jones’ authorship of the messages beyond a reasonable doubt at trial,
but argue that he has not discharged his burden on the balance of probabilities
in the voir dire. The Crown is right to argue that it is the accused’s
s. 8 motion. But that motion arises within the Crown’s
prosecution. And it is the Crown, as a quasi-minister of justice, that is
charged with ensuring the overall fairness of that prosecution. Therefore, as
between the accused and the Crown, it is more fitting that the Crown be
restrained from adopting inconsistent positions.
[27]
Second — and on a more practical note — I
respectfully reject the Crown’s argument that allowing the accused to rely on
the Crown’s theory in his Charter application would be procedurally
inefficient because the accused would not be tactically bound to his position
at the voir dire. In this case, the trial judge had the benefit of at
least the following on the s. 8 Charter claim:
(i)
The Information to Obtain the Production Order
listing Mr. Jones as the user of the cell phone from which the Text
Messages were sent; and
(ii)
A submission from the Crown that “the evidence
is very clear that it is [Mr. Jones’ and Mr. Waldron’s]
communication, but they haven’t said that”.
[28]
At first instance, the s. 8 claim turned on
the novel legal question that is now before this Court. It was not a
factually-driven dispute. In that situation, permitting the accused to rely on
the Crown’s theory is more efficient than requiring the accused to call
circumstantial evidence in an attempt to ground his desired inference.
[29]
Third, requiring an accused to admit Crown
allegations in order to have a shot at holding the state to its constitutional
obligations under s. 8 sits uneasily alongside the principle against
self-incrimination. The principle against
self-incrimination is a principle of fundamental justice under s. 7 of the
Charter and provides a “general organizing principle of criminal law
from which particular rules can be derived” (R. v.
Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at
para. 123, quoting R. v.
Jones, [1994] 2 S.C.R. 229, at p. 249). It reflects the basic tenet that “the Crown must establish a ‘case
to meet’ before there can be any expectation that the accused should respond” (R.
v. White, [1999] 2 S.C.R. 417, at para. 41). Like section 8, it is
grounded in the value “placed by Canadian society upon individual privacy,
personal autonomy and dignity” (Hart, at para. 123, citing White,
at para. 43). However, requiring an accused to effectively admit Crown
allegations as a pre-requisite to making full answer and defence through
bringing a s. 8 Charter challenge creates a tension with the
principle against self-incrimination. Indeed, this tension may well have
resulted in Mr. Jones’ decision not to lead evidence going to his
subjective expectation of privacy.
[30]
In my view, however, this tension need not arise.
Although the principle against self-incrimination is not a free-standing legal
protection, it is to be considered in fashioning legal rules in the development
of the common law and Charter law: see, e.g., Hart, at
para. 123; White, at para. 45. As Iacobucci J. explained
in White, at para. 45:
The principle against
self-incrimination demands different things at different times, with the task
in every case being to determine exactly what the principle demands, if
anything, within the particular context at issue.
[31]
What, if anything, does the principle demand in
the instant context? It is clear that, to the extent possible, the elements of
s. 8 — which in itself provides a fundamental principle of
justice — should be informed by, and reconciled with, the principle
against self-incrimination.
[32]
In my view, that is best accomplished by concluding
that counsel for a s. 8 applicant may ask the court to assume as true for
s. 8 purposes any fact that the Crown has alleged or will allege in the
prosecution against him. In other words, where the alleged Crown facts, if
taken to be true, would establish certain elements of the applicant’s s. 8
claim, he or she need not tender additional evidence probative of those facts
in order to make out those same elements. Although the entirety of the facts
and the Crown theory may not be apparent at the time of the voir dire,
the court may infer it from the nature of the charges. Alternatively, the court
may encourage prosecutors to be forthright in regards to their theory.
[33]
The preceding lays out an
exception to the rule that a Charter applicant “bears the burden of
persuading the court that [his] Charter rights or freedoms have been
infringed or denied” (Collins, at p. 277). Mr. Jones is
entitled to rely on this exception because, as explained above, Ontario Crown
counsel tendered the Text Messages to prove that he was the author of their
inculpatory contents, and admitted in the voir dire that the evidence
was “very clear” in that respect. Pursuant to the Crown’s theory, then, he
should have been presumed to be the author of the Text Messages for the
purposes of his s. 8 application.
[34]
In the instant circumstances, it follows that
Mr. Jones subjectively expected privacy in records of his electronic
conversation found in the service provider’s infrastructure. As the Court of
Appeal correctly noted, text messages are private communications. This is not
in dispute. Further, as the application judge found, Mr. Jones and his
co-accused used third-party names so as to “avoid detection or association
with” the Text Messages (application judgment, A.R., vol. I, at
pp. 1-41, at para. 31 (vii)). This suggests they intended their
communications to remain private. Accordingly, we may infer that Mr. Jones
had a subjective expectation of privacy in the subject matter of the search.
(3)
Is the Appellant’s Subjective Expectation of
Privacy Objectively Reasonable?
[35]
Having determined that Mr. Jones had a
subjective expectation of privacy in the subject matter of the search, the
question then becomes whether that expectation is an objectively reasonable
one. To be clear, the issue here is whether the sender of a text message has a
reasonable expectation of privacy in records of that message stored in the
service provider’s infrastructure. The further question of whether or not it is
reasonable for that expectation to persist when the information is in the hands
of the intended recipient is the focus of the Marakah appeal.
[36]
The application judge held that Mr. Jones
did not have a reasonable expectation of privacy in the Text Messages, and the
majority of the Court of Appeal upheld her decision. The arguments in support
of their respective holdings can be distilled into two lines of thought. The
first is a general proposition that the sender of a text message does not have
a reasonable expectation of privacy in records of that message in the hands of
the service provider because he voluntarily relinquished control over the
message when he sent it. The second points to the rest of the totality of the
circumstances in this case, namely that:
(i)
the appellant was not a party to a
confidentiality agreement with Telus; and
(ii) the Production Order and attendant seizure targeted a Telus account
in the name of a third party.
[37]
In my view, these arguments are no answer to
Mr. Jones’ claim for s. 8 standing. As I see it, it was reasonable
for him to expect that the Text Messages he sent would not be shared by a
service provider with any parties other than the intended recipient. And, as
explained below, neither the absence of a contractual policy, nor the fact that
the Production Order targeted a third party deprive him of that protection.
(a)
Does the Sender of a Text Message Have a
Reasonable Expectation of Privacy in its Informational Contents in the Hands of
a Service Provider?
[38]
Like all Charter rights, s. 8
demands a purposive interpretation (R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, at p. 344). It is therefore helpful to begin by
recalling its essential purpose. Section 8 protects an individual’s reasonable
expectation of privacy — his or her reasonable “right to be [left]
alone by other people” (Hunter, at p. 159). As understood by this
Court, personal privacy is vital to an individual’s dignity, autonomy, and
personal growth (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at
paras. 89-90; R. v. Dyment, [1988] 2 S.C.R. 417, at
pp. 427-28; R. v. Plant, [1993] 3 S.C.R. 281, at para. 17; Spencer,
at para. 48). The protection of personal privacy is accordingly a basic
prerequisite to the flourishing of a free and healthy democracy.
[39]
In the context of informational privacy,
specifically, this Court has long recognized that “all information about a
person is in a fundamental way his own, for him to communicate or retain for
himself as he sees fit” (Dyment, at p. 429, quoted in Spencer,
at para. 40). The concern here is informational self-determination. Just
as individuals may choose to be left alone in their own homes by closing the
door on the state and reasonably expect privacy, they may choose to divulge
certain information for a limited purpose, or to a limited class of persons and
nonetheless retain a reasonable expectation of privacy, depending on the
circumstances. When it comes to s. 8 , protecting such choices is essential.
[40]
In the totality of the circumstances analysis, a
s. 8 claimant’s direct control over the subject matter of the
privacy claim and his or her ability to directly regulate access thereto
have figured prominently in the analysis (Edwards, at para. 31; Patrick,
at para. 27; Tessling, at para. 32; Cole, at
paras. 45-58). For example, relinquishing control over physical subject
matter by putting it out for garbage collection, or by discarding it into a
garbage can, may reasonably reflect a meaningful choice to abandon one’s
privacy interest in that subject matter (see, e.g., Patrick; R. v. Stillman, [1997] 1 S.C.R. 607). On the other hand, keeping financial documents in a locked safe
may reflect a choice to keep the information private (R. v. Law, 2002
SCC 10, [2002] 1 S.C.R. 227). The control and access factors have also been
particularly salient in territorial privacy cases. As suggested above, land
owners and tenants have a practical ability to exclude visitors from their
territory and maintain a choice to be left alone by controlling access to their
domicile (Patrick; Edwards; R. v. Pugliese (1992), 71
C.C.C. (3d) 295 (Ont. C.A.)). In these traditional circumstances, it is
meaningful to speak of direct control, access and choice in the same breath,
since relinquishing control and giving others access to the subject matter of a
privacy claim may indicate that it is unreasonable to expect privacy in that
subject matter.
[41]
However, as this Court recognized in Spencer
and TELUS, control and access are not all or nothing
concepts.
[42]
In Spencer, police requested subscriber
information associated with a particular Internet Protocol (“IP”) address from
an Internet service provider. An IP address leaves a trail of “digital
breadcrumbs” with the service provider (see S. Magotiaux, “Out of Sync:
Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015),
71 S.C.L.R. (2d) 501, at p. 502). Those breadcrumbs are capable of
revealing a history of one’s private activity on the Internet (see R. v.
Trapp, 2011 SKCA 143, 377 Sask. R. 246, at para. 36). But once
left in the hands of the service provider, they are out of the Internet user’s
direct control. The Court in Spencer nevertheless recognized that Mr.
Spencer had a reasonable expectation of privacy in the subject matter of the
search, even if an Internet “user cannot fully control or even necessarily be
aware of who may observe a pattern of online activity” (para. 46). In
doing so, the Court relied in part on the legislative framework in the Personal
Information Protection and Electronic Documents Act, S.C. 2000,
c. 5 (PIPEDA ):
Given that the purpose of PIPEDA
is to establish rules governing, among other things, disclosure “of
personal information in a manner that recognizes the right of privacy of
individuals with respect to their personal information” . . . it would be
reasonable for an Internet user to expect that a simple request by police would
not trigger an obligation to disclose personal information or defeat PIPEDA ’s
general prohibition on the disclosure of personal information without consent.
[Emphasis added.]
(Spencer, at para. 62)
[43]
Similarly, in TELUS, a plurality of the
Court recognized that:
. . . telecommunications
service providers act merely as a third-party “conduit” for the transmission of
private communications and ought to be able to provide services without having
a legal effect on the nature (or, in this case, the protection) of these
communications . . . . [para. 41]
[44]
TELUS implicitly
acknowledges that, as a normative matter, it is reasonable 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. That is intuitive. One would not reasonably expect the
service provider to share his text messages with an unintended recipient, or
post them publicly for the world to see.
[45]
This case is akin to Spencer and TELUS
in the sense that Mr. Jones’ decision to message Mr. Waldron necessarily
leaves a trail of digital breadcrumbs with Telus. However, as in Spencer
and TELUS, this does not eliminate Mr. Jones’ reasonable
expectation that a service provider would keep the Text Messages private. Like
the service provider in Spencer, the service provider here is subject to
the provisions of PIPEDA , which strictly limit its ability to disclose
information (see, e.g., ss. 3 , 5(3) and 7 of PIPEDA ). As Spencer
demonstrates, those limitations operate regardless of whether or not the target
of the search is a subscriber of that particular service provider. Here, as in Spencer
and TELUS, the only way to retain control over the subject matter of the
search vis-à-vis the service provider was to make no use of its services at
all. That choice is not a meaningful one. Focusing on the fact that
Mr. Jones relinquished direct control vis-à-vis the service
provider is accordingly difficult to reconcile with a purposive approach to
s. 8 . Canadians are not required to become digital recluses in order to
maintain some semblance of privacy in their lives. I therefore conclude that
the sender of a text message retains
a reasonable expectation of privacy in records of text messages stored in a
service provider’s infrastructure notwithstanding that he relinquished direct
control over those messages. This result comports with contemporary social
norms and a purposive approach to s. 8 . It also comports with the purpose
of PIPEDA , and the approaches adopted by this Court in Spencer
and TELUS.
[46]
The next question is whether that expectation is
rendered unreasonable in the appellant’s case because he had no confidentiality
agreement with Telus and the Production Order and attendant seizure targeted a
Telus account in the name of a third party. As the Ontario Crown concedes, that the Text Messages were sent from a phone registered to
Mr. Jones’ spouse does not detract from his reasonable expectation of
privacy.
(b)
The Absence of a Confidentiality Agreement Does
Not Defeat Mr. Jones’ Standing Claim
[47]
The application judge’s finding that “[t]here is
nothing to suggest that Telus was contractually bound to keep any of the
records confidential” militated against the appellant’s s. 8 standing
(para. 31). I agree that this factor operates against the appellant. But
in my view, it does so only to a limited extent. When considered in light of
the totality of the circumstances, it does not defeat the appellant’s claim for
standing.
[48]
This Court’s decisions indicate that because
s. 8 “sets out normative limitations on state power . . . its scope cannot
. . . be (entirely) dictated by exogenous norms like statute or contract” (S.
Penney, “The Digitization of Section 8 of the Charter : Reform or
Revolution?” (2014), 67 S.C.L.R. (2d) 505, at p. 519).
[49]
In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, Deschamps J.
reasoned for the plurality that “the fact that the person claiming an
expectation of privacy in information ought to have known that the terms
governing the relationship with the holder of that information allowed
disclosure may not be determinative” (para. 34). She also warned that when
dealing with contracts of adhesion, in particular, it was necessary to
“procee[d] with caution” when determining the impact they may have on one’s
reasonable expectation of privacy (para. 33). In Spencer,
Cromwell J., held for a unanimous Court that Mr. Spencer had a
reasonable expectation of privacy in the subscriber information notwithstanding
that his sister was the subscriber, and hence party to the contract with the
service provider (see paras. 7, 12 and 57). Further, he held that to the
extent the contract contemplated dissemination of the subscriber information,
it provided “little assistance in evaluating the reasonableness of
Mr. Spencer’s expectation of privacy” (para. 55).
[50]
Therefore, in both Gomboc and Spencer,
the presence of agreements permitting dissemination of the subject
matter of the search could not singularly defeat the claimants’ reasonable
expectations of privacy.
[51]
It follows a fortiori that the absence
of any such agreement here does not defeat Mr. Jones’ reasonable
expectation of privacy.
(c)
That the Production Order Targeted a Third
Party’s Account Does Not Render Mr. Jones’ Expectation of Privacy
Unreasonable
[52]
The respondent Crown for Ontario argues that the
fact that the Production Order targeted a third party’s cell phone account
rather than Mr. Jones’ works against his claim for standing. In my view,
it does not. As explained above, a sender of a text message has a reasonable
expectation of privacy in that message when it is in the hands of a
telecommunications intermediary. In this case, it makes no difference whether
the message was accessed through an authorization to peer into the recipient’s
account or the sender’s account. In either case, the Text Messages are in the
hands and control of the service provider.
[53]
The Ontario Court of Appeal’s decision in R. v. Shayesteh (1996), 31 O.R. (3d) 161 (C.A.) speaks to this point. In that case,
Charron J.A. (as she then was) rejected the Crown’s argument that a person
who was not targeted by a Part VI authorization had no standing to challenge
the authorization. Instead, she held that the applicant’s standing was grounded
in the fact that his “own telephone calls were intercepted as a result of the
targeting” of a third party (p. 173). This was sufficient to “give him
standing to dispute the legality” of the impugned interceptions (p. 174).
[54]
In the circumstances of this case, the analogy
to Shayesteh is apt. While the Production Order targeted a third party,
it was the appellant’s own text message communications that were seized from
Telus. As in Shayesteh, then, the fact that the authorization targeted a
third party, but not Mr. Jones, does not militate against his reasonable
expectation of privacy. Holding otherwise would ignore that, pursuant to PIPEDA ,
service providers at large may be expected to maintain privacy over
individuals’ information, regardless of whether law enforcement targets one
disinterested provider over the other.
[55]
As a result, I conclude that on the totality of
the circumstances, Mr. Jones has a reasonable expectation of privacy in
the impugned Text Messages. He accordingly has standing to challenge the validity
of the Production Order.
B.
Reasonableness of the Search: Can Historical
Text Messages Lawfully Be Seized by Means of a Production Order Under Section
487.014?
[56]
The question remaining is whether, at the second
stage of the s. 8 framework, the search and seizure of records of
historical text messages pursuant to a Production Order under what is now
s. 487.014 of the Code was reasonable. The application judge and the
Court of Appeal held that it was. The appellant’s argument to the contrary is
two-pronged. First, he argues that the courts below erred because the seizure
of text messages from the service provider’s infrastructure is an “intercept”
within the meaning of Part VI of the Code. Second, he says that
even if the police technique in this case was not, strictly-speaking, an
“intercept”, it was functionally equivalent to one. On either view, it would
follow that a Part VI “wiretap” authorization was required to permit the
seizure of the Text Messages stored in Telus’ infrastructure.
[57]
A search “will be reasonable if it is authorized
by law, if the law itself is reasonable and if the manner in which the search
was carried out is reasonable” (Collins, at p. 278). Here, the
search was authorized under s. 487.012 of the Code (now
s. 487.014) — but the issue is whether this was a proper source
of authority for the search in question. Since the parties agree that text
messages are private communications protected by Part VI, the question of
statutory interpretation this Court must resolve is whether the word
“intercept” in s. 183 of the Code encompasses the production or
seizure of historical text messages held by a service provider. To be clear,
the term “historical text messages” denotes text messages that have been sent
and received (or are no longer capable of reception), not text messages that
are in the transmission process. It is only historical text
messages — and not those in the transmission process — that
are at issue in this appeal.
[58]
As the trial judge and the Court of Appeal
recognized, TELUS did not answer the question at hand. Writing for the
plurality, Abella J. limited herself to the issue of whether a
Part VI authorization was required for the “prospective production
of future text messages” (TELUS, at para. 15 (emphasis in
original)). Similarly, Moldaver J.’s opinion that the police technique in TELUS
was substantively equivalent to an intercept was based on the fact it “prospectively
authorize[d] police access to future private communications on a continual
basis over a sustained period of time” (para. 61 (emphasis in
original)). In dissent, Cromwell J. went further and addressed the question at
issue here; i.e., whether police could obtain stored text messages by means of
a production order (para. 116).
[59]
In my view, when the relevant words in ss. 184
and 184(1) are read in “their entire context and in their grammatical and
ordinary sense harmoniously” with Part VI’s scheme and undergirding
purpose, they do not support the appellant’s interpretation (Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 quoting
E.A. Driedger, Construction of Statutes (2nd ed. 1983), at
p. 87). Nor, in my view, is the police technique in this case an
interception within the meaning of s. 184(1) that would require a
Part VI authorization. I therefore conclude that police may lawfully
obtain the contents of historical text messages by means of a production order
under s. 487.014 of the Code.
(1)
Purpose of Part VI
[60]
I turn first to the purpose of Part VI of
the Criminal Code . Part VI of the Code protects individuals’
private communications from interception and surveillance by the state. In R.
v. Duarte, [1990] 1 S.C.R. 30, La Forest J. cast its purpose as
follows:
The rationale for
regulating the power of the state to record communications that their
originator expects will not be intercepted by anyone other than the person intended
by the originator to receive it . . . has nothing to do
with protecting individuals from the threat that their interlocutors will
divulge communications that are meant to be private. . . . .
Rather, the regulation of electronic surveillance protects us from a risk of a
different order, i.e., not the risk that someone will repeat our words but
the much more insidious danger inherent in allowing the state, in its
unfettered discretion, to record and transmit our words.
The reason for this
protection is the realization that if the state were free, at its sole
discretion, to make permanent electronic recordings of our private
communications, there would be no meaningful residuum to our right to live our
lives free from surveillance. The very efficacy of electronic surveillance
is such that it has the potential, if left unregulated, to annihilate any
expectation that our communications will remain private. [Emphasis added;
pp. 43-44]
Two important
observations follow from this passage. The first is that there is distinction
between disclosure of information and the interception of private
communications through electronic surveillance. The second is that, as
La Forest J. explained, Part VI is particularly concerned with
regulating the use of intrusive investigate technologies and their impact on
citizens’ privacy, not the protection of private communications at large. As
explained below, both of these aspects of Part VI’s purpose should be
borne in mind in resolving the issue at hand.
(2)
The Structure of Part VI and the Distinction
Between Interception and Disclosure
[61]
As the Court of Appeal recognized, Part VI’s
structure reflects the distinction between interception and disclosure.
Sections 184 to 192 offer protection against the interception of private
communications. Section 193 prohibits the disclosure of information
obtained through intercepted communications. This dual structure reflects
Parliament’s purpose because it created distinct offences for interception and
disclosure.
[62]
The first of these offences, set out in
s. 184 of the Code, prohibits the “interception of private
communications by the use” of certain devices unless one of the legislated
exemptions in s. 184(2) applies. Under s. 182(2)(e),
telecommunication service providers like Telus are exempted from the
interception offence if they intercept communications for service delivery
reasons. Section 184(3) then specifically addresses the use or
retention of previously intercepted communications. It provides that:
Use or Retention
(3) A private communication intercepted by a person referred to
in paragraph (2)(e) can be used or retained only if
(a) it is essential to identify, isolate or prevent harm to the
computer system; or
(b) it is to be disclosed in circumstances referred to in
subsection 193(2).
[63]
What is significant is that this section of the
scheme clearly distinguishes “between interception on the one hand and use
or retention of the intercepted communications on the other” (TELUS,
at para. 143, per Cromwell J. (emphasis in original)). “This suggests
that Parliament viewed those acts as different and distinct” (ibid., at
para. 144).
[64]
Section 193 is concerned with disclosure:
Disclosure of information
193 (1) Where a private communication has been intercepted by means of an
electro-magnetic, acoustic, mechanical or other device without the consent,
express or implied, of the originator thereof or of the person intended by the
originator thereof to receive it, every one who, without the express consent of
the originator thereof or of the person intended by the originator thereof to
receive it, wilfully
(a) uses or discloses the private communication or any part thereof or
the substance, meaning or purport thereof or of any part thereof, or
(b) discloses the existence thereof,
is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
[65]
Section 193 makes it an offence to disclose a
private communication that has been intercepted, subject to the
exceptions in s. 193(2). Under these exceptions, disclosure is not an
offence where, inter alia, the disclosure of a previously intercepted
communication is made “in the course of or for the purpose of any criminal
investigation if the private communication was lawfully intercepted”
(s. 193(2)(b)), or when disclosure is made to a police officer and is
“intended to be in the interests of the administration of justice in Canada”
(s. 193(2)(e)).
[66]
In this case, there is no question that Telus
initially intercepted the communications between Mr. Jones and
Mr. Waldron, presumably pursuant to an exception under s. 184(2) of
the Code. However, in light of the statutory scheme’s explicit
distinction between interception, use and retention, and disclosure,
it is clear that Telus’ subsequent storing and provision of the communications
to the law enforcement did not constitute additional interceptions.
Rather, to use the language in Part VI, Telus retained the
intercepted communications under s. 184(3) and then disclosed them
to the police as contemplated by s. 193(2). The appellant’s tendered
interpretation is difficult to reconcile with these distinctions made within
Part VI.
(3)
The Plain Meaning of “Intercept” and its
Surrounding Context
[67]
The appellant’s tendered interpretation withers
further when the word “intercept” is given its plain meaning and read in light
of its surrounding context. The crucial context here lies in s. 184(1) and
the definition of intercept in s. 183 .
[68]
Section 184(1) provides that:
(1) Every
one who, by means of any electro-magnetic, acoustic, mechanical or other
device, wilfully intercepts a private communication is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five years.
Intercept
is defined in s. 183 as follows:
intercept includes listen to, record or
acquire a communication or acquire the substance, meaning or purport thereof;
[69]
Based on its plain meaning, interception
suggests a prospective concept of authorization relating to communications not
yet in existence. The word “intercept” denotes an interference between the
sender and recipient in the course of the communication process (see R.
v. Belcourt, 2015 BCCA 126, 322 C.C.C. (3d) 93, at
paras. 45-46; R. v. McQueen (1975), 25 C.C.C. (2d) 262 (Alta.
S.C. (App. Div.)), at p. 265; R. v.
Giles, 2007 BCSC 1147, at para. 37 (CanLII)).
As explained in TELUS, the “word ‘intercept’ implies that the private
communication is acquired in the course of the communication process”
(para. 37). It follows that in order for a Part VI authorization to
permit a real-time intercept of the communication, it must be granted in
advance of that communication. That is, it must be prospective. As the
Court of Appeal for Ontario recently observed, “[t]he words sought for capture
do not exist when the [Part VI] authorization is granted. They may never
exist or disclose anything of relevance to any offence under investigation” (R.
v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at
para. 93).
[70]
While the definition of “intercept” in
s. 183 of the Code may read broadly because it features the word
“acquire”, a comparison with the French version of the provision reinforces the
conclusion that Part VI authorizations relate only to future
communications. As the intervener the Director of Criminal and Penal
Prosecutions points out, the French version diverges from the English by employing the words “prendre
. . . connaissance” in lieu of “acquire.” This is contrasted with numerous
other sections of the Code where Parliament translated the English
“acquire” to the French “obtenir” or “acquérir”: see, e.g.,
ss. 164.2(1) (b)(ii), 164.3(4) (b), 462.34(6)(a)(ii), 462.41(3)(b),
462.42(1)(b), 490.4(3), 490.5(l)(c). The distinct translation here suggests a
different meaning than in those other contexts.
[71]
Further, the word “acquire” in s. 183 must
be read alongside the words surrounding it. As Justice Cromwell observed in TELUS:
. . .
“acquire” must be understood in the context of the text surrounding it; it is
found in a list that includes “listen to” and “record”, both activities that
occur simultaneously with the communication being intercepted. It is also used
to explain the word “intercept” and I think it is clear that there are many
ways to acquire the content of a communication that could not be thought of as
an interception. [para. 155]
[72]
Finally, the definition of intercept in
s. 183 must be understood in the context of s. 184, which is at the
heart of Part VI and makes it an offence to intercept communications “by means of any electro-magnetic, acoustic, mechanical or other
device”. For example, past practice has been that where police obtain a
Part VI authorization to intercept future text messages, “Telus installs a device which automatically re-routes a copy of each
text message to a police wire room or listening post” (TELUS, at
para. 122). This clarifies that interception relates
to actions by which a third party interjects itself into the communication
process in real-time through technological means.
[73]
This understanding of “intercept” coheres with
Part VI’s overall purpose. Recall that the policy motivating Part VI
was a concern with the use of intrusive surveillance technologies and their
impact on citizens’ privacy (Duarte, at pp. 43-44). State
surveillance may be continuous over a prolonged period of time and gives the
police real-time access to information they would otherwise have to wait for,
putting them in a better position to “conduct physical surveillance and gather
physical evidence that might not be available later” (I.F. (Attorney General of
British Columbia), at para. 31).
[74]
Added to these concerns is the fear that when
equipped with sophisticated surveillance technologies, the state may be tempted
to embark on forward-looking, “fishing expedition[s] in the hope of uncovering
evidence of crime” (R. v. Finlay (1985), 23 C.C.C. (3d) 48 (Ont. C.A.),
at p. 70; see also Belcourt, at para. 47). It is that
potential temptation which requires us to be “alert to the fact that modern
methods of electronic surveillance have the potential, if uncontrolled, to
annihilate privacy” (Wong, at p. 47). The constitutionality of the
interception scheme accordingly stems from the heightened safeguards Part VI
imposes in light of the dangers created by prospective authorizations (Belcourt,
at para. 47; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.
992, at para. 29). As a result of these safeguards, “[a]n application for
a conventional authorization to intercept private communications
is” — in the words of one commentator — “the most exacting
pre-trial investigative proceeding known to our criminal law” (S.C. Hutchison et al., Search and Seizure Law in Canada (loose-leaf),
at p. 4-37 (footnote omitted)). Based on the
statutory scheme, the disclosure of previously stored records does not trigger
these concerns, and is accordingly not subject to these safeguards.
(4)
The Police Technique Engaged in This Case Is Not
an Interception
[75]
Unlike the police technique in TELUS, the
technique in this case does not bear the hallmarks of an interception. In TELUS,
the police sought a prospective order securing the recording and
preservation of future messages, along their automatic and continuous
disclosure to police each day for a two-week period (para. 42). This made
the investigative technique “substantively equivalent to an intercept”
(para. 52). The police in TELUS effectively deputized the service
provider by requiring it to provide them with daily and comprehensive briefings
of the targeted parties’ communications.
[76]
In contrast, the Production Order in this case,
dated February 12, 2010, sought text messaging information and
records relating to a prior period beginning January 5, 2010 and
ending February 12, 2010. Although the Order requests text messages
sent or received on the date of the authorization itself, there is no evidence
to the effect that some of the texts produced by Telus were in the transmission
process on February 12, 2010 at the time the Order was made. In the
absence of such evidence, and in light of the fact that Telus was given 30 days
to comply with the Order , it would be speculative to infer that the Order
operated prospectively so as to catch future text messages. Nor
is there any evidence that the messages were stored and retained as part of
Telus’ communicative process. Nor still is there evidence that Telus stored the
messages at the request of the police or for law enforcement purposes. Finally,
subsequent to the Production Order, when the police sought to intercept future
communications between Mr. Jones and Mr. Waldron, they properly
requested and obtained two Part VI authorizations dated
November 12, 2010 and January 12, 2011, respectively.
[77]
In short, the state action in this case
respected Part VI’s distinction between the interception of communications
in ss. 184 to 192 and the disclosure of previously intercepted and stored
communications as contemplated by s. 193. Based on the evidence, it also
respected the requirement in TELUS that a Part VI authorization be
obtained for text messages that are still in the transmission process. Law
enforcement cannot receive authorization to effectively intercept future
communications through the “backdoor” of the general search and seizure regime
in s. 487 of the Code. But law enforcement could — and
did, in this case — lawfully obtain records of historical text
messages by means of a Production Order under s. 487.012 of the Code
(as they can still do now under s. 487.014).
[78]
I am mindful of the fact that text messages are
inherently private and in many ways akin to conversations. However, the need
for a Part VI authorization does not vary with the level of privacy engaged by
a state search. For example, as Justice Fish observed in R. v. Morelli,
2010 SCC 8, [2010] 1 S.C.R. 253 it is “difficult to imagine a search more
intrusive, extensive, or invasive of one’s privacy than the search and seizure
of a personal computer” (para. 2). And indeed, like phones or service
providers, computers may contain stored records of digital conversations. Yet
this Court has always held that seizures of computers may be authorized under
the general regime in s. 487 of the Code (R. v. Vu, 2013
SCC 60, [2013] 3 S.C.R. 657; Cole; Morelli). As
the Court of Appeal recognized, whether or not a Part VI authorization is
required “comes down to the specific investigative technique used by the police
and whether that technique constitutes an interception of private
communications” (para. 32).
[79]
It follows that in considering whether or not to
grant a production order under s. 487.014(1), the judicial officer seized
of the application should reject it where the technique constitutes an
interception under s. 184(1). This is evident from the interplay between
the wiretap provisions in Part VI and the production order requirements of
s. 487.014. With respect to the wiretap provisions, s. 184(2) creates
an exemption from the general prohibition in s. 184(1). This provision
exempts, in relevant part, interceptions obtained “with an authorization”
(s. 184(2)(b)). “Authorization” is a defined term: it “means an authorization . . . given
under section 186 or subsection 184.2(3), 184.3(6) or 188(2)”
(s. 183 ). A production order issued under s. 487.014 is not an
“authorization” for the purposes of Part VI — thus, a production
order would not make an interception lawful. With respect to the requirements
for a production order, s. 487.014(1) provides that on an “ex parte
application made by a peace officer or public officer, a justice or judge may
order a person to produce a document”. The Code therefore confers a
discretion on the justice or judge to be exercised in accordance with the
conditions set out in s. 487.014(2). In exercising this discretion, the
judicial officer should consider whether or not the technique sought to be
authorized under the auspices of s. 487.014 is an intercept within the
meaning of s. 184(1). Where it is, a production order should be denied
because the interception would nevertheless be unlawful absent a Part VI
authorization.
[80]
Production orders must therefore be carefully
circumscribed to ensure that authorized police techniques comply with
s. 184(1) . A production order must not authorize, or potentially
authorize, the production of any text messages that are either not yet in
existence or are still capable of delivery at the time the order is issued. This
should be clear from the face of the order. Where the technique at issue is an
intercept within the meaning of s. 184(1) , then the application is
properly rejected and a Part VI authorization must be obtained. A
production order should not be used to sidestep the more stringent Part VI
authorization requirements.
[81]
In this case, however, a Part VI
authorization was unnecessary because the police did not seek an order
authorizing the prospective production of future text messages.
Nor is there any evidence before this Court that the Production Order resulted
in the production of text messages that were still in the transmission process.
Accordingly, the search and seizure of Mr. Jones’ text messages were
properly authorized by the production order provision in s. 487.012 of the
Code (now s. 487.014), and did not breach Mr. Jones’ s. 8
Charter right.
III.
Conclusion
[82]
For these reasons, I would dismiss the appeal
and uphold the validity of the Production Order.
The following are the reasons
delivered by
Rowe J. —
[83]
I agree with Justice Côté that, as a matter of
statutory interpretation, a production order pursuant to s. 487.014 of the Criminal
Code, R.S.C. 1985, c. C-46 , (pursuant to s. 487.012 in this case), authorizes
the police to request the disclosure of text messages from a service provider
once those messages have been sent and received. Conversely, a Part VI
authorization is required to intercept those messages as they are being
transmitted. My comments that follow are obiter dicta; they address an
issue not dealt with in the judgment, nor raised in argument.
[84]
An example is useful. At 8:00 a.m., police
obtain an authorization pursuant to Part VI to intercept text messages as they
are sent from A to B. Text messages sent from A to B at 9:00 a.m. are
intercepted pursuant to this authorization. Alternatively, police at 10:00 a.m.
obtain a production order pursuant to s. 487.014 for text messages sent by A to
B at 9:00 a.m. In both instances, the police obtain the same information – the
text messages sent at 9:00 a.m. The police, however, must meet markedly
different requirements depending on which method they choose, with those under
Part VI being far more stringent than those under s. 487.014 . This seems to me
to be highly anomalous.
[85]
Are the requirements for a production order
under s. 487.014 sufficient to give proper effect to the protection against
unreasonable search or seizure under s. 8 of the Canadian Charter of Rights
and Freedoms ? Justice Côté writes that “[a] production order should not be
used to sidestep the more stringent Part VI authorization requirements”: at
para. 80. Given that the records of text messages are stored by Telus the
moment they are sent, however, it makes little difference whether the police
“intercept” them or simply obtain them through a production order immediately
after they are sent. It appears, in other words, that the police can in
effect sidestep the requirements of Part VI by obtaining a production order
immediately after the messages are sent.
[86]
This sidestepping is only possible because Telus
retains records of its customers’ text messages. When a Telus customer sends a
text message, that message can be obtained via a production order only because
Telus, as part of its transmission process, keeps a record of all messages sent
by their customers. As other major service providers do not at present keep
records of their customers’ messages, the police would have to obtain a Part VI
authorization if they wanted to obtain text messages from Bell or Rogers, for
example.
[87]
I express no settled view on whether these
anomalies reflect the failure of s. 487.014 to meet the requirements imposed by
s. 8 of the Charter . In the result, I concur with Justice Côté.
The following are the reasons
delivered by
Abella J. —
[88]
The police obtained copies of historical text
messages through a Production Order pursuant to s. 487.012 of the Criminal
Code, R.S.C. 1985, c. C-46 .[3] Tristin Jones sent these messages to the Telus cell phone account
associated with his co-accused. These messages formed the basis of Mr. Jones’
conviction for offering to transfer a firearm.
[89]
As in the companion case of R. v. Marakah,
2017 SCC 59, the first issue is whether the sender of a text message has a
reasonable expectation of privacy in copies of his or her sent text messages,
and, as a result, standing under s. 8 of the Canadian Charter of
Rights and Freedoms . Section 8 states:
Everyone has the right to be secure
against unreasonable search or seizure.
[90]
I agree with Justice Côté that Mr. Jones had a
reasonable expectation of privacy in his sent text messages and, as a result,
had standing under s. 8 to challenge the Production Order.
[91]
Having recognized that Mr. Jones has standing
and that s. 8 is engaged, the next question is whether the search and seizure
in this case was reasonable. That, in turn, depends on whether the search and
seizure was authorized by law, that is, was it open to the police to obtain
copies of historical text messages from a service provider pursuant to a
Production Order or was a Part VI authorization required.
[92]
Mr. Jones argued that obtaining historical text
messages through a service provider constitutes an interception of a private
communication for which a Part VI authorization is required. The Crown’s
argument was that “interception” in Part VI does not apply to the police
requesting third party production of historical text messages because the
concept of “interception” is prospective and involves the state interjecting
itself into the communication process as it happens. Since the timing and
technique of the investigative process and not the content of the information
intercepted are what is relevant, the Crown maintained that a Production Order
was sufficient to obtain copies of Mr. Jones’ messages.
[93]
I agree with Mr. Jones and would allow the
appeal. Historical text messages, like all text messages, are a “private
communication” as defined in s. 183 , found in Part VI of the Criminal Code .
In my respectful view, the level of privacy protection afforded to private
communications should be informed by the purposes underlying Part VI of the Criminal
Code and based on the character of the communication, and not on the timing
of the state’s request for authorization or on technological differences
between service providers. By prioritizing a temporal distinction to determine
the level of privacy protection for text messages, Telus customers are left
with less protection than those using other service providers who do not store
copies of text messages simply because Telus stores copies of text that pass
through its infrastructure. This means that the privacy rights of those who
text depend on which service provider they use rather than the fact that they
are texting as a means of privately communicating.
[94]
At the same time, emphasizing the historical nature
of a text message exchange distorts the fact that that exchange remains a
conversation, albeit one that takes place electronically and is assigned a
specific timestamp. The timing of the state’s request for information should
not distort the communicative dimension of a text message exchange.
Analysis
[95]
Production Orders were created to allow
investigators to compel third parties who are not under investigation to
produce data or documents that are relevant to the commission of an alleged
offence (see J. A. Fontana and D. Keeshan, The Law of Search and Seizure in
Canada (9th ed. 2015), at p. 494). A Production Order can only be obtained
if the justice or judge is satisfied, in an ex parte application, that
an offence has been or is suspected of having been committed under the Criminal
Code or an Act of Parliament, that the documents or data would provide
evidence respecting the commission of the offence, and that the person subject
to the order has possession or control of the documents or data (s.
487.012(3) ).[4]
[96]
The Part VI authorization scheme (ss. 183 to
196 ), on the other hand, is in the section of the Criminal Code entitled
“Invasion of Privacy”. Part VI covers three broad categories of intercepts.
This case is about the requirement for a standard intercept without consent.
[97]
Part VI sets out a comprehensive scheme for the
interception of private communications (R. v. TELUS
Communications Co., [2013] 2 S.C.R. 3, at para. 2). It is now well established that state action in the context of
search and seizure, including electronic surveillance, will engage s. 8 of the Charter
if it affects a person’s reasonable expectation of privacy. As Prof. Hamish
Stewart notes, “the search must be authorized by law, the law authorizing the
search must be reasonable (i.e., constitutionally valid) and the manner
in which the search is conducted must be reasonable. A search that fails to meet
any one of these three criteria is unreasonable and violates section 8 ”
(“Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R.
(2d) 335, at p. 335).
[98]
Section 183 sets out the definitions applicable
to Part VI of the Criminal Code . The relevant defined terms are:
intercept includes listen to, record or acquire a communication or acquire
the substance, meaning or 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;
[99]
The question in this appeal turns on the meaning
of the term “intercept”, and on whether the seizure of stored copies of
historical text messages from a service provider constitutes an “intercept”
within the meaning of s. 183 .
[100]
Compared with the other search and seizure and
warrant provisions in the Criminal Code , including the provision dealing
with Production Orders, the provisions in Part VI establish more stringent
requirements before authorization is granted. TELUS explained the purpose
behind these more onerous requirements:
These safeguards illuminate
Parliament’s intention that a higher degree of protection be available for
private communications. Part VI has broad application to a number of
technologies and includes more rigorous safeguards than other warrant
provisions in the Code. [para. 31]
[101]
TELUS, guided by
this purpose, rejected a narrow definition of the term “intercept”. In
determining whether Part VI authorization was required for the prospective,
continuous, daily production of text messages from a service provider, the
plurality in TELUS rejected a restrictive approach:
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. In R. v.
Wong, [1990] 3 S.C.R. 36, this Court found that “the broad and general
right to be secure from unreasonable search and seizure guaranteed by s. 8 [of
the Charter ] is meant to keep pace with technological development, and,
accordingly, to ensure that we are ever protected against unauthorized
intrusions upon our privacy by the agents of the state, whatever technical form
the means of invasion may take” (p. 44). . . .
. . .
A narrow definition is
also inconsistent with the broad language and purpose of Part VI. The
statutory definition of “intercept” in s. 183 includes three distinct parts —
“listen to”, “record” or “acquire”. In French, the definition includes
“de prendre . . . connaissance”. Rather than limit the definition of
“intercept” to its narrow, technical definition, the statutory definition
broadens the concept of interception. [Emphasis in original; paras. 33 and 35.]
[102]
Notably, TELUS recognized that there is
no requirement that the interception of a private communication be simultaneous
or contemporaneous with the making of the communication:
There is no requirement in the
Code definition of “intercept” that the interception of a private
communication be simultaneous or contemporaneous with the making of the
communication itself. If Parliament intended to include such a requirement, it
would have included it in the definition of “intercept”. Instead, it chose to
adopt a wider definition, consistent with Part VI’s purpose to offer broad
protection for private communications from unauthorized interference by the
state.
The interpretation of
“intercept a private communication” must, therefore, focus on the acquisition
of informational content and the individual’s expectation of privacy at the
time the communication was made. In my view, to the extent that there may be
any temporal element inherent in the technical meaning of intercept, it should
not trump Parliament’s intention in Part VI to protect an individual’s right to
privacy in his or her communications.
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. [paras. 35-37]
[103]
Moldaver J. too, in TELUS, concluded
that the test under s. 487.01(1)(c) “must consider the investigative technique
that the police seek to utilize with an eye to its actual substance and not
merely its formal trappings” (para. 77). While not prepared to find that the
investigative technique used by the police was in fact an “intercept”, he found
that it was “substantively equivalent” to an intercept and therefore required
Part VI authorization.
[104]
As in TELUS, where the issue was whether
Part VI authorization was required for prospective text messages, a technical
approach to defining “intercept” should be rejected even when dealing, as we
are in this case, with the stored copies of historical text messages.
Requiring that the interception of a private communication be simultaneous or
contemporaneous with the making of a communication itself overlooks the content
and character of text messaging while neutering Part VI’s ability to protect
the right to privacy in new, electronic and text-based technologies.
[105]
The only difference between TELUS, dealing
with prospective text messages, and this case, dealing with historical text
messages, is the timing of the state’s request for authorization. This was
reinforced by the intervener Criminal Lawyers’ Association of Ontario in its
factum where it said that, “[t]echnologically speaking, Telus and [Mr. Jones’]
case are identical: a private communication is made, it is then stored on the
company’s computer, and then the state acquires it” (I.F., at para. 16). If
the term “intercept” in s. 183 is interpreted in the context of the broader
Part VI scheme and the purpose that it is meant to serve, namely, to prevent
the state acquisition of private communications without lawful authorization
and to protect the privacy interests inherent in the content of private
communications, then the Part VI protections should not fluctuate with the
timing of the state’s interception of a private communication. As noted in TELUS,
interpreting the phrase “intercept[ion] of a private communication” must “focus
on the acquisition of informational content and the individual’s expectation of
privacy at the time the communication was made” (para. 36).
[106]
In other words, the focus must remain on the
substance of what the state seeks to obtain. When the police obtain copies of
text messages from a service provider, they are acquiring a complete record of
all electronic conversations that took place during a given period. In both TELUS
and this case, the informational content acquired by the state is the same:
a complete record of all private communications in the given period. A
singular focus on the historical dimension of the record should not
detract from the content and character of this record. It is a record of a
conversation that took place between individuals, albeit in an electronic
format, that has been assigned a specific timestamp. This record may capture
electronic conversations between several people innocently participating in an
electronic conversation with the targeted recipient, as well electronic
conversations involving multiple participants engaged in a group text. Clearly,
by obtaining copies of historical text messages, the state is acquiring more than mere “documents” or “data”, as it does under a Production
Order, it is obtaining records of “electronic conversations”:
Text messaging is, in essence, an
electronic conversation. The only practical difference between text messaging
and the traditional voice communications is the transmission process. [TELUS,
at para. 5]
[107]
Simpson J. outlined the breadth of information obtained
when the state seeks copies of historical text messages from a service provider
in R. v. Hoelscher, 2016 ABQB 44:
When the police obtain a
search warrant for an actual cell phone of a sender or a recipient of a text
message, the police only acquire what remains preserved of a communication on
the cell phone. They might not acquire everything an individual has sent or
received. In order to protect certain private communications from unwanted
intrusions, a sender or recipient might delete the message, go a step further
and electronically clear the information or go so far as to destroy the cell
phone.
However, when police
intercept text messages from a service provider, they acquire every message
sent and received for the phone number, for a specific period of time. The
owner of the cell phone has no control over the storage or disposition of the
messages by the service provider.
The acquisition of
information from the service provider can therefore be distinguished from the
acquisition of information from the sender’s cell phone or the recipient’s cell
phone, as in those cases, the respective individuals have some control over the
information present on the cell phone. This loss of control of a private
communication in the hands of the service provider, and the serious level of
intrusion justify the protections of Part VI. [paras. 113-115 (CanLII)]
[108]
Emphasizing the historical nature of a text
message subjects the privacy rights of text message participants to the
technical differences between service providers. TELUS recognized that
technological developments that allow the state to acquire copies of
prospective text messages should not determine the scope of the protection
afforded to those private communications. It seems to me difficult to make a different
argument for historical messages. In other words, technological tools that
allow the state to obtain copies of historical text messages from service
providers should not determine the scope of protection afforded to them.
[109]
The logical extension of all of this, in my
respectful view, whether one finds that the technique used here to acquire
copies of historical text messages was an intercept, or “substantively
equivalent” to an intercept, is the following, as Burrows J. explained in R.
v. Croft, 2013 ABQB 640, 304 C.C.C. (3d) 279:
. . . if one accepts that to
prospectively authorize the acquisition of text messages anticipated to be
recorded is to authorize the interception of private communications . . . to
authorize the acquisition of text messages previously recorded in Telus’
transmission infrastructure must also be to authorize the interception of
private communications. [para. 47]
[110]
Simpson J. made a similar point in Hoelscher:
. . . it is important to
remember that the acquisition by the police of text messages stored by a
service provider, whether by way of a retrospective or prospective
authorization, will never occur simultaneously or contemporaneously with the
sending of the message. A retrospective authorization will of course always make
for the acquisition of stored material. It cannot occur simultaneously with the
sending of the text message. Similarly when the police, with a prospective
authorization, exploit the storage system of Telus, then the information is
always stored before the police acquire it.
. . .
In this case, the police
seek to acquire the content of a recorded telecommunications from the
transmission service provider. It does not matter whether the police request
the authorization one week before the text is sent, one minute before it is
sent, or one week after it is sent, in all instances it is the acquisition of a
private telecommunication from a service provider, and it is the content of
those communications Part VI aims to protect. The acquisition of the content from
the service provider is the interception, not the time which the police request
the authorization. [paras. 100 and 103]
[111]
A text message cannot be sent without passing
through a service provider. Increasing reliance on text messaging is resulting
in “new and rather rich sources of evidentiary material for criminal
investigators”, generating new privacy concerns (R. v. Carty, 2014 ONSC
212 (Boswell J.), at para. 9; see also para. 11 (CanLII)). The intervener
British Columbia Civil Liberties Association aptly explained the implications
of increasing reliance on texting in its factum: “Canadians are increasingly
communicating by text messaging. . . . much of what was once available to the
police only through a “wiretap” (authorized under Part VI) is now available
through the acquisition of text messages from a computer” (I.F., at para. 3).
[112]
Telus, it seems, is the only service provider to
store copies of text messages for a period of time. As Moldaver J. noted in his
reasons in TELUS, “[t]he fact that Telus stores its subscribers’ text
messages in this manner is significant . . . because it creates an
investigative resource for the authorities” (para. 59), an investigative
resource that is not available through the other service providers who do not
store copies of text messages.
[113]
In this case, the police obtained several
Production Orders pursuant to s. 487.012 of the Criminal Code directed
at the service providers Bell, Rogers and Telus. Only Telus stored the content
of incoming and outgoing text messages for a period of time after the messages
were sent and received. No text messages were obtained from accounts held with
the other service providers. Telus’ unique storage practices, rather than the
underlying principles in Part VI, led to the production of copies of historical
text messages from the targeted Telus account, and the loss of Mr. Jones’
privacy protections available under Part VI of the Criminal Code . Again,
the applicability of Part VI should depend on the substance of what the
investigative technique seeks to access, not on the timing of when access is
sought, or on the vagaries of the service provider’s technological practices.
[114]
Since no Part VI authorization was obtained, the
acquisition of copies of Mr. Jones’ historical text
messages through the Production Order was invalid and breached his rights under
s. 8 of the Charter .
[115]
The remaining issue is whether the improperly
obtained evidence should be excluded under s. 24(2) of the Charter in
accordance with this Court’s decision in R. v. Grant, [2009] 2 S.C.R.
353. In my respectful view, on balance, the admission of the historical text
message evidence obtained pursuant to the Production Order would bring the
administration of justice into disrepute.
[116]
The public’s interest in seeing a determination
on the merits is balanced against its interest in “having a justice system that
is above reproach” (Marakah, at para. 72, per McLachlin C.J., quoting Grant,
at para. 84). As Brown J. noted in R. v. Paterson, [2017] 1
S.C.R. 202: “[i]t is . . . important not to allow . . . society’s interest in
adjudicating a case on its merits to trump all other considerations . . . . ”
(para. 56).
[117]
The impact of the Charter -infringing
conduct on Mr. Jones’ Charter -protected privacy interests under s. 8 of
the Charter was significant. Whether they take the form of a historical record or occur in real-time,
electronic conversations have the potential to reveal information going to the
individual’s biographical core, including information which tends to reveal
intimate details of the lifestyle or personal choices of an individual. In the companion
case of Marakah, Chief Justice McLachlin emphasized that Mr. Marakah
“had a considerable, Charter -protected privacy interest in his . . .
electronic conversation” (para. 67). Similarly, Mr. Jones had a considerable, Charter -protected
privacy interest in his electronic conversation with the recipient of his text
messages. As Cromwell J. noted in R. v. Côté, [2011] 3 S.C.R. 215:
. . . it must not be forgotten that the
purpose of the Charter ’s protection against unreasonable searches is to
prevent them before they occur, not to sort them out from reasonable intrusions
on an ex post facto analysis: R. v. Feeney, [1997] 2 S.C.R. 13, at para. 45. Thus, prior authorization is directly related to, and forms
part of, an individual’s reasonable expectation of privacy. [para. 84]
[118]
I acknowledge that the police did not,
technically, act in bad faith, but I cannot accept that the failure to seek
Part VI authorization did not put public confidence in the administration of
justice at serious risk. The evolution of shifting technology has resulted in a
correspondingly evolving jurisprudence which tries to keep pace with the impact
of technology on constitutional rights. Where no case directly on point has
been decided, the police have two choices: to use the jurisprudential gap as a
rationale for being more intrusive, or to exercise greater caution
before interfering with legislatively endorsed privacy rights. It seems to me
that the better judicial approach is one that encourages conduct on the part of
the police that errs on the side of being protective of the rights of the
public, rather than one that endorses Charter breaches in deference to
the mechanics of new technologies.
[119]
I would therefore exclude the text message
evidence obtained through the Production Order and set aside the conviction.
Appeal
dismissed, Abella J.
dissenting.
Solicitors for the
appellant: Fasken Martineau DuMoulin, Ottawa; Lyttle McGarry Del Greco,
Ottawa.
Solicitor for the
respondent Her Majesty The Queen in Right of Canada: Public Prosecution
Service of Canada, Toronto.
Solicitor for the
respondent Her Majesty The Queen in Right of Ontario: Attorney General of
Ontario, Toronto.
Solicitor for the
intervener the Attorney General of British Columbia: Attorney General of
British Columbia, Victoria.
Solicitor
for the intervener the Director of Criminal
and Penal Prosecutions: Director
of Criminal and Penal Prosecutions, Montréal.
Solicitors for the
intervener the Criminal Lawyers’ Association of Ontario: Ursel Phillips
Fellows Hopkinson, Toronto.
Solicitors for the
intervener the Canadian Civil Liberties Association: McCarthy Tétrault,
Toronto.
Solicitors for the
intervener the Samuelson‑Glushko Canadian Internet Policy and Public
Interest Clinic: Presser Barristers, Toronto; Samuelson‑Glushko
Canadian Internet Policy and Public Interest Clinic, Ottawa.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Stockwoods,
Toronto.