On January 22, 2016, Justice E.J. Simpson of the Court of Queen’s Bench of Alberta released the reasons for judgment in R v Hoelscher, 2016 ABQB 44 holding that the seizure of historic text messages by the police requires a wiretap authorization under Part VI of the Criminal Code. I thought this issue had run out of its systemic life and, in any case, that new litigation was unlikely after Parliament repealed s. 487.012 of the Code that governed the making of production orders. I have previously written about this issue so I will first step back to retrace how it has evolved. (See: Production Orders and Probable Cause dated August 2, 2015)

At the core of the debate has been the question whether the seizure of a text message is an intercept under Part VI. In R v Telus Communications Co., [2013] 2 SCR 3 Justice Rosalie S. Abella, writing for the majority of the Supreme Court of Canada, held at para. 33, that the interpretation of intercept, “…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.” She went on to state, at para. 36, that: “The interpretation of ‘intercept a private communication’ must, therefore, focus on the acquisition of informational content and the individual’s expectation 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 individuals’s right to privacy in his or her communications.”

However, as I noted in a previous post titled Police Must Get Wiretap Order to Seize Text Messages dated March 2, 2014, Justice Abella restricted the opinion in Telus Communications, at para. 42, to the prospective production of future text messages. The seizure or production of historic text messages was left undecided. That issue first arose in R v Croft, 2013 ABQB 640 where Justice Brian R. Burrows of the Court of Queen’s Bench of Alberta concluded, at para. 45, that the reasoning of the majority of the Supreme Court of Canada regarding text messages already recorded and stored in Telus’ infrastructure, at the time the police obtained the order, applies to text messages anticipated to be recorded and stored in the days following the order. Justice Burrows went on to hold, at para. 58:

“The result of my determination that the production orders in this case authorized the interception of private communications (text messages) is to expose a conflict and inconsistency between CC s. 487.012 and sections in CC Part VI when they are both read literally. If s. 487.012 can be used to authorize the interception of private communications, it authorizes an act which is illegal under s. 184 and for which illegality, s. 184(2) creates no exception. Further, if authority to intercept private communications can be obtained by satisfying a judge of the matters identified in s. 487.012(3), there is a direct and clear conflict with ss. 185 and 186 which impose a different and more rigorous set of requirements for the authorization of the interception of private communications.”

Justice Burrows concluded, at para. 62, that the conflict and inconsistency is eliminated by interpreting s. 487.012 as not applying to the interception of private communications.

Various appellate and trial court decisions then departed from Croft and imposed a temporal restriction on the definition of intercept that I briefly reviewed in a previous post titled Apple And The ‘All Writs Act’ dated November 2, 2015. The conflict in the law was summarized in Hoelscher where Justice Simpson stated, at paras. 83-6:

“Although the Court [in Telus Communications] did not opine on historical text messages, Abella J.’s decision…provided a framework for analyzing whether prospective authorizations require a Part VI authorization. Various courts have applied this framework regarding retrospective authorizations for the seizure of historical text messages: R v Belcourt 2015 BCCA 126, R v Webster 2015 BCCA 286, leave denied [2015] SCCA No 376, R v Pazder 2015 ABQB 493, R v Carty 2014 ONSC 212, R v Frank 2014 ONSC 2853, R v Croft 2013 ABQB 716.

Of these cases, all except R v Croft impose a temporal restriction on the definition of ‘intercept’, thereby limiting the protection of Part VI authorizations to authorizations for future text messages and excluding the acquisition of historical messages with a retrospective authorization.

The Court in R v Croft concentrated on the content and privacy interest attached to the communications, not the temporal aspect, thereby including historical text messages as communications in the definition of an ‘intercept’ which require a Part VI authorization for their acquisition.

There is no appellate authority in Alberta with respect to this issue. However, applying the framework and reasoning outlined in R v Telus to historical text messages brings me to the conclusion that the acquisition of these text messages requires a Part VI authorization.”

In also applying the analytical framework in Telus Communications, Justice Simpson concluded, in a strongly reasoned privacy analysis, at para. 93, that when considering the definition of “intercept of a communication”, the proper focus is on the individual’s reasonable expectation of privacy in the content of the communication which should be informed by (a) the purpose of Part VI and (b) the right to be secure against unreasonable search and seizure under Charter s. 8. Justice Simpson then said this, at para. 94: “The higher threshold imposed on the state under Part VI does not depend on whether the communication exists at the time of the request for an authorization. Rather, it protects the privacy interest in the content of the communication and the corresponding s. 8 Charter rights, regardless of the timing of the request for an authorization to intercept it.”

Justice Simpson continued, at para. 97, to explicitly reject the narrow definition of intercept in Belcourt, Carty, Frank, Pazder and Webster that limited the protections of Part VI to prospective seizures and returned to what Justice Abella had said in Telus Communications. Since Telus Communications Company stopped archiving text messages in 2013, I see this as the critical part of the debate for future purposes. Justice Abella said this in Telus Communications, at para. 35:

“The statutory definition of ‘intercept’ in s. 183 includes three distinct parts – ‘listen to’, ‘record’ or ‘acquire’. In French, the definition includes ‘de prendre…conaissance‘. Rather than limit the definition of ‘intercept’ to its narrow, technical definition, the statutory definition  broadens the concept of interception. 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.”

In order to give meaning to Part VI of the Code, Justice Simpson, in Hoelscher, rejected “arbitrary temporal distinctions” and concentrated on the privacy interest in the content of the communication in coming to these conclusions, at paras. 109-12 and 115-6:

“No meaningful difference exists in the privacy interest between historical and future text messages. They contain identical content. The invasion of the individual’s privacy interest is identical. The state gains the same information by way of a prospective or retrospective authorization. The protection of the privacy interest must take into account the invasion of the individual’s privacy, not the time at which the information is collected by the police or the time at which the police seek the authorization. This content focused approach recognizes the vast amount of information that police may acquire from a service provider, not otherwise available through the search of an individual’s cell phone. An authorization to acquire text messages stored with a service provider launches a particularly serious intrusion into the individual’s privacy interest. It permits the acquisition of a large amount of information entrusted by the sender to the transmission 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. This loss of control and the high level of intrusion are identical whether the police seek the authorization for future communications or historic communications. Accordingly, if the focus is on the content and the privacy interest, as the Supreme Court recognized in R v Telus, then the protections of Part VI must apply equally to historic text messages.”

In the result, at para. 126-7, Justice Simpson concluded that, although the Information to Obtain the production order met the reasonable grounds standard, the police required a Part VI wiretap authorization. The production order was set aside and the search and seizure was thus warrantless and prima facie unreasonable.

So, what does all this mean? Certainly, the conflict in the authorities will persist until the issue is resolved by the Supreme Court of Canada. I have always thought that Justice Burrows got it right in Croft and Justice Simpson’s recent ruling in Hoelscher gives support to what is, fundamentally, a Telus-based analysis. Let’s, then, return to what Justice Abella said in Telus Communications, at paras. 33 and 40. Parliament drafted Part VI of the Code broadly to ensure that private communications are protected across a number of technological platforms. And the privacy rights protected by Part VI, and Charter s. 8, must remain aligned with technological developments. The rulings in Croft and Hoelscher do that – as must all judgments in the fast paced world of privacy law. Otherwise, the judiciary renders the law obsolete when the ink dries.