SCC rules police can use production orders to obtain stored text messages from service providers.
08, December 08, 2017 - Filed in: Court Cases
"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."
The S.C.C. held (6:1) that the appeal is dismissed and the production order upheld.
Justice Côté wrote as follows (at paras. 8-9, 80-81):
"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?
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).
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.
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."
Justice Abella (in dissent) wrote as follows (at paras. 93-94):
"...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.
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."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.