In an important ruling released on March 27, 2013,  the Supreme Court of Canada held that text messages are private communications that are protected by Part VI of the Criminal Code.

In a case reported as R. v. Telus Communications Co., 2013 SCC 16 the police wanted to seize text messages stored in the databases of Telus under a general warrant. A general warrant is governed by s. 487.01 of the Code. This section is residual and resort to it is precluded where the object of the search is available under another provision of the Code or another federal statute. One of the issues was whether the seizure of a text message was an intercept under Part VI of the Code which governs wiretapping.

In the opinion written by Justice Rosalie S. Abella, a majority of the court 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: “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 individual’s right to privacy in his or her communications.”

However, Justice Abella restricted the opinion, at para. 42,  to the prospective production of future text messages. The seizure or production of historic text messages was left undecided. That issue would arise in a pretrial motion in a conspiracy case I have before Justice Brian R. Burrows, in the Court of Queen’s Bench, in Edmonton.

In this case reported as R. v. Croft, 2013 ABQB 640 the police sought the production of historic text messages by use of production orders under s. 487.012 of the Code. Justice Borrows concluded, at para. 45, that the reasoning of the majority of the Supreme Court 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 Borrows further observed, 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 held, at para. 62, that the conflict and inconsistency is eliminated by interpreting s. 487.012 as not applying to the interception of private communications.

These two cases reaffirm the high privacy interest which Canadians have in their text message communications. That privacy interest cannot be eroded by the use of general warrants or production orders where the police do not have to establish investigative necessity. The police must fulfil that pre-condition and obtain a wiretap authorization.