Interception Followed by a Fumble

What sort of authorization do the police need in order to obtain copies of text messages a person sends or receives? That was the issue which the Supreme Court decided today in R. v. TELUS Communications Co., 2013 SCC 16. If obtaining copies of text messages is an “intercept” within the meaning of s. 183 the Criminal Code, or something like it, then a special warrant for intercepting private communications, governed by Part VI of the Code, is required. Otherwise, it was enough for the police to obtain a “general warrant,” which is rather less difficult to get than a warrant to intercept. The parties agreed that, generally speaking, a Part VI warrant is required for reading a person’s text messages as soon as they are sent by means of special equipment installed by the telecommunications provider, which apparently is the only way to read texts sent between users of most Canadian telecommunications companies. But, unlike its competitors, Telus stores copies of texts sent by or to its users on its computers. So when the police sought a warrant to force Telus to hand over copies of texts that two of its users would send in the following couple of weeks, they thought that this was not going to count as an intercept within the meaning of Part VI of the Code, because they wouldn’t be reading the messages as they would be sent, but only accessing copies after a (little) while. But the majority of the Supreme Court found that what the police did was in fact an interception or something essentially similar, and, therefore, that they fumbled in not obtaining the appropriate Part VI warrant.

Three judges―Justices LeBel, Fish, and Abella―found that what the police did amounted to an intercept. Justice Abella’s opinion notes that the definition of “intercept” in s. 183 of the Code is broad and not exhaustive―it ” includes listen to, record or acquire a communication or acquire the substance, meaning or purport'” of a communication intended to be private. Justice Abella also insists that the understanding of “intercept” must  evolve to protect private communications that use new technologies no less than those that use those that existed at the time the statutory provision was drafted. It “must … focus on the acquisition of informational content and the individual’s expectation of privacy at the time the communication was made” (par. 36). Text messaging is not fundamentally different from ordinary conversation, and must be protected in the same way; nor should the specific way in which one telecommunications provider handle text messages deprive its clients of their privacy rights. The fact that Telus stores its clients’ messages on its computers is thus immaterial. The police ought to have obtained a Part VI warrant to read the messages they were interested in.

Two other judges―Justices Moldaver and Karakatsanis agree with this result, but they prefer not to decide whether what the police did  really was an intercept. It is enough that it was functionally similar to one. Because the benefit they derived from proceeding as they did was the same as they would have from reading text messages as they are sent, for which a Part VI warrant is incontrovertibly required, it was not enough to proceed under a general warrant, as they did, since a general warrant is only available when no other procedure provided by the Code is relevant. Justice Moldaver accepts “that as a technical matter, what occurred here was different from what would occur pursuant to a Part VI authorization,” but not  “however, that that fact is determinative in light of the identical privacy interests at stake” (par. 68). The privacy interests at stake help us understand the purpose of the protections which Parliament crafted before any investigative technique contemplated by the Code can be authorized, and the general warrant should not be available for police to circumvent these purposes by somewhat modifying the form, without altering the substance, of the investigative techniques they use.

Chief Justice McLachlin and Justice Cromwell dissent. They argue that what the police sought to do here was not to intercept private communications, but to obtain the disclosure of communications that had been (lawfully) intercepted by someone else (namely Telus), which is outside the scope of s. 183 of the Code, making a Part VI unnecessary. They also disagree with Justice Cromwell’s arguments that general warrants should be used only exceptionally and not as a matter of course.

Interestingly, Justice Cromwell’s opinion looks more like a majority one (for example it uses the internal headings that are usual in majority opinions) than Justice Abella’s does.  Justice Abella’s opinion also reads like a response to Justice Cromwell’s arguments―something more commonly seen in, and perhaps more suitable for, a dissent than a plurality opinion. I wonder, though of course we are likely never to know for sure, whether Justice Cromwell’s opinion was intended to be that of the majority, or at least the plurality, albeit a plurality dissenting as to the result. Perhaps Justice Abella’s would-be dissent persuaded Lebel, and maybe Justice Fish, and they switched from agreeing with Justice Cromwell to agreeing with her. (I’m guessing that Justice Fish, who is the Court’s most consistent civil libertarian, more likely agreed with Justice Abella from the start.)

For what it’s worth, I agree with the outcome of the case. The majority is right that Telus’ peculiar ways of handling text messages shouldn’t matter, and that privacy protections should be, as far as possible, consistent across the different ways in which we communicate. Whether Justice Abella’s approach or Justice Moldaver’s is preferable, I cannot tell. I think both opinions are thoughtful and interesting (and I have only given the bare bones of Justice Moldaver’s here). I hope that they will come to some form of synthesis in the future.

NOTE: This happens to be my 200th post. It took me a year less 10 days. Not too bad, I daresay.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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