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Privacy and Historic Text Messages

  • January 12, 2018
  • Clayton Rice, K.C.

On December 8, 2017, the Supreme Court of Canada released the 6-1 ruling in R v Jones, 2017 SCC 60, concurrently with R v Marakah, 2017 SCC 59, that I discussed in my last post to On The Wire titled The Conversation dated December 30, 2017. In Marakah, the court held that text messages, sent and received, can attract a reasonable expectation of privacy under s. 8 of the Charter of Rights. In Jones, the court was asked this question: Does a production order under s. 487.014 of the Criminal Code provide lawful authority for the police to seize historic text messages stored by a service provider? The answer is: Yes.

1. Background

Tristan Jones and two co-accused, Jermaine Smith and Jafari Waldron, were convicted of multiple firearms and drug trafficking offences. The charges stemmed from an investigation by the Ottawa Police Service during which a judge issued a search instrument called a production order directed to Bell, Rogers and Telus to produce historic text messages associated with Waldron’s account. Telus was the only provider to retain historic text messaging data which it handed over to the police. The police were interested in an exchange between two cellphones about the sale of a handgun – one cellphone associated with Waldron and the other with Jones. The subscriber information relating to each account was under a different name.

Relying partly on the text message exchange, the police then obtained two wiretap authorizations targeting cellphones associated with the suspects. Information harvested during the wiretap was then used to bolster applications for search warrants that uncovered evidence of Jones’ marihuana trafficking and proceeds of crime charges. Jones and Waldron moved for exclusion prior to trial contending that the police obtained the wrong court order and that the acquisition of the historic text messages required a wiretap authorization under Part VI of the Code.

The issue was important. Although both types of judicial authorization require reasonable grounds, a wiretap authorization also requires the police to establish investigative necessity – with some exceptions in Canadian law that do not arise here. And, in R v TELUS Communications Co., [2013] 2 SCR 3 the Supreme Court of Canada previously held that the police must obtain a wiretap authorization to seize prospective text messages (future text messages) that I discussed in my post to On The Wire titled Police Must Get Wiretap Order to Seize Text Messages dated March 2, 2014. Thus, the undecided question Jones presented: Should the standard be different for historic text messages? The application judge dismissed the exclusion motion which was upheld by the Ontario Court of Appeal in a ruling reported as R v Jones, 2016 ONCA 543, 338 CCC (3d) 591.

2. Historic Text Messages

Writing for a five member majority, Justice Suzanne Cote focused on the impact of intrusive surveillance technologies that arises with prospective text messaging but not historic messages, at para. 74:

“[W]hen 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’. 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’. The constitutionality of the interception scheme accordingly stems from the heightened safeguards Part VI imposes in light of the dangers created by prospective authorizations. 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’. Based on the statutory scheme, the disclosure of previously stored records does not trigger these concerns, and is accordingly not subject to these safeguards.”

Justice Cote went on to conclude that the police technique in this case, the production order, did not have the hallmarks of an interception, at paras. 75-6:

“In TELUS, the police sought a prospective order securing the recording and preservation of future messages, along with their automatic and continuous disclosure to police each day for a two-week period. This made the investigative technique ‘substantively equivalent to an intercept’. 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.

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.”

In a concurring opinion, Justice Malcolm Rowe was concerned, at paras. 85-6, that “the police can in effect sidestep the requirements of Part VI by obtaining a production order immediately after the messages are sent.” He therefore had no “settled view” on whether the production order regime in s. 487.014 of the Code for the seizure of historic text messages meets the requirements imposed by s. 8 of the Charter.

3. Procedure

The Jones court also considered a procedural issue that has pestered defence lawyers involved in motions practice such as drug and wiretap lawyers. Although the question is of general importance in Charter litigation, I will frame it in the context of search and seizure law: When a defendant asserts a reasonable expectation of privacy in a challenge to the reasonableness of a search and seizure under s. 8 of the Charter, does he or she have to testify or call evidence? It has been a thorn because an applicant must establish standing to assert a Charter right but may not want to testify on an exclusion motion and admit authorship of the text messages. In holding that the applicant on a Charter motion is entitled to rely on the Crown’s theory, Justice Cote wrapped it up this way, at paras. 17-9:

“[T]he 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’.

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.

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..[T]his 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.”

4. Conclusion

Although the result in Jones is clear, the issue may not be as well settled as it appears. In dissent, Justice Rosalie Abella held that the timing of the state’s request for information should not distort the communicative dimension of a text message conversation. The temporal element should not be controlling. The analysis of the term “intercept” contained in s. 183 of the Code, should focus on content – not on the timing of what the investigative technique seeks to access or the vagaries of a service provider’s technological practices. Justice Abella said this, at para. 106:

“[T]he 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. 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’.

The Jones majority is a narrow one consisting of retired Chief Justice Beverley McLachlin and Justices Michael Moldaver, Andromache Karakatsanis and Clement Gascon who joined with Justice Cote. Although Justice Rowe concurred in the result, his views are not settled because of the “anomalies” in the production order regime in the Code. Justice Abella dissented. Chief Justice Richard Wagner and Justice Russell Brown did not participate. And of course Justice Sheilah Martin, the newest appointment to the court, did not sit on Jones or Marakah.

What, then, are the take-aways here? Most importantly, the landscape of digital privacy in Canada is becoming more settled. The participants in electronic conversations have a reasonable expectation that their communications are private and thus protected by s. 8 of the Charter. The state must obtain (a) a production order for the acquisition of historic text messages (b) a wiretap authorization for prospective text messages and (c) a warrant for the seizure of text messages contained on a recipient’s cellphone depending upon the assessment of the privacy interest on a case-by-case basis.

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