The Supreme Court of Canada released its decision this morning in the case of R. v. TELUS Communications Co., 2013 SCC 16.
The question the court had to answer was whether the police should be required to get an interception order under the Criminal Code to obtain the contents of text messages being sent and received by a customer of TELUS Communications. The answer was yes.
TELUS Communications, for reasons that are unclear to me, keeps all customer text messages for thirty days. The police sought from TELUS copies of all text messages sent and received by one of their customers, on a daily, rolling basis. So each day, the telco would have to hand over the text messages from the preceding 24 hours.
Instead of getting an interception order under the Criminal Code, the police used a residual, catch-all provision for a “general warrant”, which is usually only available if there is no other applicable form of order to obtain the information. The majority of the Supreme Court of Canada determined that, notwithstanding that the text messages were provided after the fact and from a cache, it amounted to an interception of private communications and an interception order – with its higher burden on the cops – should be applicable. There are some strong dissents, including from the Chief Justice, which are worth looking at.
Here is the headnote:
Criminal law — Interception of communications — General warrant — Telecommunications company employing unique process for transmitting text messages resulting in messages stored on their computer database for brief period of time — General warrant requiring telecommunications company to produce all text messages sent and received by two subscribers on prospective, daily basis — Whether general warrant power in s. 487.01 of Criminal Code can authorize prospective production of future text messages from service provider’s computer — Whether investigative technique authorized by general warrant in this case is an interception requiring authorization under Part VI of Criminal Code — Whether general warrant may properly issue where substance of investigative technique, if not its precise form, is addressed by existing legislative provision — Criminal Code, R.S.C. 1985, c. C‑46, ss. 487.01.
Unlike most telecommunications service providers, TELUS Communications Company routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a brief period of time. The police in this case obtained a general warrant and related assistance order under ss. 487.01 and 487.02 of the Criminal Code requiring Telus to provide the police with copies of any stored text messages sent or received by two Telus subscribers. The relevant part of the warrant required Telus to produce any messages sent or received during a two‑week period on a daily basis. Telus applied to quash the general warrant arguing that the prospective, daily acquisition of text messages from their computer database constitutes an interception of private communications and therefore requires authorization under the wiretap authorization provisions in Part VI of the Code. The application was dismissed. The focus of the appeal is on whether the general warrant power can authorize the prospective production of future text messages from a service provider’s computer.
Held (McLachlin C.J. and Cromwell J. dissenting): The appeal should be allowed and the general warrant and related assistance order should be quashed.
Per LeBel, Fish and Abella JJ.: Part VI of the Criminal Code provides a comprehensive scheme for “wiretap authorizations” for the interception of private communications. The purpose of Part VI is to restrict the ability of the police to obtain and disclose private communications.
Telus employs a unique process for transmitting text messages that results in the messages being stored on their computer database for a brief period of time. In considering whether the prospective, daily production of future text messages stored in Telus’ computer falls within Part VI, we must take the overall objective of Part VI into account.
Text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI.
Section 487.01 of the Code, the general warrant provision, was enacted in 1993 as part of a series of amendments to the Code in Bill C‑109, S.C. 1993, c. 40. It authorizes a judge to issue a general warrant permitting a peace officer to “use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure”. Notably, s. 487.01(1)(c) stipulates that the general warrant power is residual and resort to it is precluded where judicial approval for the proposed technique, procedure or device or the “doing of the thing” is available under the Code or another federal statute.
Section 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively to prevent the circumvention of the more specific or rigorous pre‑authorization requirements for warrants, such as those found in Part VI. To decide whether s. 487.01(1)(c) applies, namely, whether another provision would provide for the authorization sought in this case, requires interpreting the word “intercept” in Part VI. “Intercept” is used throughout Part VI with reference to the intercept of private communications. This means that in interpreting “intercept a private communication”, we must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards. The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI. It should also be informed by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technological developments.
A technical approach to “intercept” would essentially render Part VI irrelevant to the protection of the right to privacy in new, electronic and text‑based communications technologies, which generate and store copies of private communications as part of the transmission process. A narrow definition is also inconsistent with the language and purpose of Part VI in offering 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. 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. 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.
Text messages are private communications and, even if they are stored on a service provider’s computer, their prospective production requires authorization under Part VI of the Code. If Telus did not maintain its computer database, there is no doubt that the police would be required to obtain an authorization under Part VI to secure the prospective, and in this case continuous, production of text messages. Most service providers do not routinely copy text messages to a computer database as part of their transmission service. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wiretap authorizations under Part VI to compel the prospective and continuous production of their text messages. This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy. The technical differences inherent in Telus’ transmission of text messages should not deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to.
The general warrant in this case was invalid because the police had failed to satisfy the requirement under s. 487.01(1)(c) of the Code that a general warrant could not be issued if another provision in the Code is available to authorize the technique used by police. Since the warrant purports to authorize the interception of private communications, and since Part VI is the scheme that authorizes the interception of private communications, a general warrant was not available.
Per Moldaver and Karakatsanis JJ.: There is agreement with Abella J. that the police are entitled to a general warrant only where they can show that “no other provision” of the Criminal Code or any other Act of Parliament would provide for the investigative technique, including a substantively equivalent technique, for which authorization is sought. The investigative technique in this case was substantively equivalent to an intercept. The general warrant is thus invalid. Resolution of whether what occurred in this case was or was not, strictly speaking, an “intercept” within the meaning of s. 183 of the Code is unnecessary. A narrower decision guards against unforeseen and potentially far‑reaching consequences in this complex area of the law.
The result is driven by the failure of the authorities to establish the requirement in s. 487.01(1)(c) that there be “no other provision” that would provide for the search. This provision ensures that the general warrant is used sparingly as a warrant of limited resort. In creating the general warrant, Parliament did not erase every other search authorization from the Code and leave it to judges to devise general warrants on an ad hoc basis as they deem fit. Courts must therefore be careful to fill a legislative lacuna only where Parliament has actually failed to anticipate a particular search authorization. The “no other provision” requirement must be interpreted so as to afford the police the flexibility Parliament contemplated in creating the general warrant, while safeguarding against its misuse. There is a need for heightened judicial scrutiny where Parliament has provided an authorization for an investigative technique that is substantively equivalent to what the police seek but requires more onerous pre-conditions. Thus, 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.
The approach to the “no other provision” requirement accepts a measure of uncertainty by tasking judges with the job of inquiring into the substance of purportedly “new” investigative techniques. When uncertainty exists, the police would do well to err on the side of caution. General warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions. Judges faced with an application where the investigative technique, though not identical, comes close in substance to an investigative technique covered by another provision for which more rigorous standards apply should therefore proceed with extra caution. Where careful scrutiny establishes that a proposed investigative technique, although similar, has substantive differences from an existing technique, judges may grant the general warrant, mindful of their obligation under s. 487.01(3) to impose terms and conditions that reflect the nature of the privacy interest at stake.
A literal construction of s. 487.01(1)(c) must be rejected. Such an approach strips the provision of any meaning and renders it all but valueless. Legislative history confirms that general warrants were to play a modest role, affording the police a constitutionally sound path for investigative techniques that Parliament has not addressed. Ensuring that general warrants are confined to their limited role is the true purpose of s. 487.01(1)(c). While the “best interest” requirement in s. 487.01(1)(b) serves to prevent misuse of the general warrant, this provision should not be interpreted as swallowing the distinct analytical question that the “no other provision” test asks. A purposive approach to s. 487.01(1)(c) has nothing to do with investigative necessity. Under the “no other provision” test, the police are not asked to show why an alternative authorization would not work on the facts of a particular case, but rather why it is substantively different from what Parliament has already provided.
In this case, the general warrant is invalid because the investigative technique it authorized was substantively equivalent to an intercept. What the police did — securing prospective authorization for the delivery of future private communications on a continual, if not continuous, basis over a sustained period of time — was substantively equivalent to what they would have done pursuant to a Part VI authorization. It was thus, at a minimum, tantamount to an intercept. Though there is no evidence to suggest that the police acted other than in good faith, the police failed to meet their burden to show that the impugned technique was substantively different from an intercept. On the facts here, the general warrant served only to provide a means to avoid the rigours of Part VI. The police could and should have sought a Part VI authorization.
Per McLachlin C.J. and Cromwell J. (dissenting): The question of whether what the police did under this general warrant is an interception of a private communication is one of statutory interpretation. When the text of the statutory provisions is read in its full context, it is clear that the general warrant does not authorize an interception that requires a Part VI authorization. While there is no doubt that the text message is a private communication and that text messages here were intercepted by Telus by means of an electro-magnetic, acoustic, mechanical or other device, the police in this case, did not intercept those messages when Telus turned over to them copies of sent and received messages previously intercepted by Telus and stored in its databases. Therefore, the investigative technique authorized by the general warrant in this case was not an interception of private communication.
Fundamental to both the purpose and to the scheme of the wiretap provisions is the distinction between the interception of private communications and the disclosure, use or retention of private communications that have been intercepted. The purpose, text and scheme of Part VI show that the disclosure, use or retention of intercepted private communications is distinct from the act of interception itself. That is, if disclosure or use of a private communication were an interception of it, there would be no need to create the distinct disclosure or use offence. Similarly, the exemptions from criminal liability show that Parliament distinguished between interception on one hand and retention, use and disclosure on the other.
In this case, it is not disputed that Telus was intercepting text messages when it copied them for its own systems administration purposes. However, it is also agreed that Telus lawfully intercepted private communications. Under the general warrant, the police sought disclosure from Telus of information that it had already lawfully intercepted. The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes. As the scheme of the legislation makes clear, disclosure or use of a lawfully intercepted communication is not an interception. It is inconsistent with the fundamental distinction made by the legislation to conclude that the police were intercepting private communications when Telus provided them with copies of previously intercepted and stored text messages. The distinction in the statute between interception and disclosure cannot be dismissed as a mere “technical difference”. The distinction is fundamental to the scheme of the provisions. When Telus turns over to the police the copies of the communications that it has previously intercepted, Telus is disclosing the communications, not intercepting them again. This disclosure by Telus from its databases cannot be an interception by the police.
Acquiring the content of a previously intercepted and stored communication cannot be an interception because that broad reading is inconsistent with the clear distinction between interception and disclosure in the provisions. Applied broadly, this interpretation of “acquire” would extend the scope of investigative techniques which require wiretap authorizations far beyond anything ever previously contemplated. Further, introducing a temporal aspect of interception would confuse the act of interception with the nature of its authorization. Interception is a technique, a way of acquiring the substance of a private communication. It could not be that exactly the same technique, which acquires information in exactly the same form may be either a seizure of stored material or an interception, depending on the point in time at which the technique is authorized.
The general warrant is not one of limited resort that should be used sparingly. On the contrary, as numerous authorities have acknowledged, the provision is cast in wide terms. Therefore, it is not accepted as an imperative that s. 487.01 must be interpreted with a view to heavily restricting its use. The focus of the inquiry is on two matters (in addition of course to reasonable grounds to believe that an offence has been committed and that information concerning the offence will be obtained): is authorization for the “technique, procedure or device to be used or the thing to be done” provided for in any other federal statute and is it in the best interests of the administration of justice to authorize it to be done? Section 487.01(1)(c) provides that a general warrant may issue if “there is no other provision . . . that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done”. The words “technique”, “procedure”, “device to be used” and “thing to be done” all are concerned with what the police want to do, not why they want to do it. This paragraph does not require issuing judges to consider whether other techniques are similar or allow access to the same evidence; it simply asks if the same technique can be authorized by another provision. This is not simply a narrow, literal interpretation of s. 487.01. Rather, it is an interpretation that reflects its purpose of conferring a broad judicial discretion to authorize the police to “use any device or investigative technique or procedure or do any thing”, provided of course that the judge is satisfied that it is in the best interests of the administration of justice to do so, having due regard to the importance of the constitutional right to be free of unreasonable searches and seizures. However, courts should not authorize anything the police seek to do simply because it is not authorized elsewhere. The judicial discretion to issue the warrant must give full effect to the protection of reasonable expectations of privacy as set out under s. 8 of the Charter.
There is no support in the text or the purpose of s. 487.01(1)(c), or in the jurisprudence, for building into it a “substantive equivalency” test. The paragraph asks a simple question: Does federal legislation provide for “a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done”? Where this threshold is met, the judge is entitled to consider granting the requested authorization. The further question of whether the authorization ought to be granted is not the focus of this paragraph of the section. Rather, whether a general warrant ought to issue is properly considered under s. 487.01(1)(b), which asks whether authorizing the warrant would be in the best interests of the administration of justice. This approach is not only supported by the text, purpose and jurisprudence, but the application of a “substantive equivalency” test creates unnecessary uncertainty and distracts the issuing judge from the question of whether the technique sought to be authorized is inconsistent with the right to be free from unreasonable searches and seizures. Predictability and clarity in the law are particularly important in the area of judicial pre-authorization of searches. The primary objective of pre-authorization is not to identify unreasonable searches after the fact, but to ensure that unreasonable searches are not conducted. The requirements for pre-authorization should be as clear as possible to ensure that Charter rights are fully protected.
The technique sought to be authorized here is not the substantive equivalent of a wiretap authorization. On the facts of this case, a wiretap authorization alone would not allow the police to obtain the information that Telus was required to provide under the general warrant. Three separate authorizations would be required in order to provide the police with the means to access the information provided to them under the general warrant. Therefore, even if one were to accept reading into s. 487.01(1)(c) a “substantive equivalency” test, neither the facts nor the law would support its application in this case.
The police did not seek a general warrant in this case as a way to avoid the rigours of Part VI. The general warrant achieved the legitimate aims of the police investigation in a much more convenient and cost-effective manner than any other provision would have allowed. There is no evidence of “misuse” of s. 487.01. The effective and practical police investigation by a relatively small municipal police force was fully respectful of the privacy interests of the targets of the investigation and other Telus subscribers.