A very texting question

In the three decades federal law enforcement has been required to report to Parliament on the number of times it receives judicial authorization to conduct electronic surveillance on individuals, its use has declined steadily. From a high of 1,300 warrants issued for audio and video surveillance in 1976, the number dropped to 95 in 2012 and the annual total was just over 100 intercepts in each of the previous four years. The irony in the steep drop in seeking approval for wiretaps is seizure of private communications by local, provincial, and national police is now likely higher than ever and the legal hurdle is arguably much lower than the test for what are known as Part VI authorizations under the Criminal Code.

The private communications of thousands, if not tens of thousands, of people are seized each year in Canada by law enforcement through production orders, which can be issued by justices of the peace rather than a Superior Court judge as is required for a Part VI authorization. The other main difference is these communications are not from real-time phone calls, but archived text messages stored by wireless phone providers on their databases.

For law enforcement, it is an effective tool, since the text messages may often prove to be more incriminating than wiretaps on suspects who might already have some idea they are under police surveillance. In terms of the privacy rights of individuals who believe it should not be easy to obtain a text, especially one that is deleted, the legal test is not settled as to whether past communications deserve the same protection as future electronic messages.

In its decision this spring in R. v. Telus Communications Co., the Supreme Court of Canada provided at least part of the answer. The majority decision, written by Justice Rosalie Abella, concluded text messages are indeed private communications. As a result, a request by police for a service provider to capture future texts requires a Part VI authorization. However, since the Telus appeal involved only “prospective” text messages, “we need not address whether the seizure of the text messages would constitute an interception if it were authorized after the messages were stored,” wrote Abella.

The status of old text messages is one many wish the Supreme Court would have determined, to provide clarity to the lower courts. “The production order regime has been misapplied, to the detriment of the privacy interests of Canadians,” says Edward Sapiano, a Toronto defence lawyer. He notes at the initial Superior Court hearing in Telus, the applications judge was told that in the previous three years, the company had received about 10,000 production orders for text-based communications. The scope of production orders can be quite broad and should be subject to a higher level of judicial scrutiny, says Sapiano. “Are private communications protected or are they protected for the brief seconds or minutes you are actually having the communications?” he asks.

Sapiano has filed a motion on behalf of a client in an upcoming trial to exclude several months worth of past text messages obtained through production orders, on the basis a Part VI authorization should have been required.

The application, to be heard early in 2014, is believed to be one of the first cases where a Superior Court has been asked to address this issue directly since the Supreme Court findings in Telus, which provided a variety of opinions. The decision written by Abella was joined by only two other judges (Justice Michael Moldaver wrote a concurring judgment, joined by Justice Andromache Karakatsanis, which was more narrow in scope, while Chief Justice Beverley McLachlin and Justice Thomas Cromwell were in dissent and concluded a general warrant was sufficient even for seizure of prospective text messages, because they are stored on the databases of service providers).

Steven Penney, a University of Alberta criminal law professor, says in looking at the full context of relevant Criminal Code sections, a production order should be sufficient for obtaining a past text message that has been stored (either saved on a wireless phone or on the database of a provider). “You don’t need Part VI, because it is not an intercept,” says Penney, who has written extensively on search and seizure law. He equated the requirement for a production order or search warrant as being similar to what police must do to search a computer hard drive, for example, to see if it contains illegal images.

In one of the only rulings that has directly addressed whether the seizure of past text messages comes under the Part VI provisions, Ontario Superior Court Justice Ian Nordheimer concluded they do not. In his 2012 decision in R. v. S.M., Nordheimer agreed since the definition of intercept in the Criminal Code includes the word “acquire,” it may suggest the seizure of past texts is an intercept. However, he stressed it is necessary to read the contents of Part VI “as a whole” and in doing so suggested the section is about the “contemporaneous seizure” of communications. “It is clear that the harm, which the provisions of Part VI were to guard against, was the acquisition by the state of personal communications that would otherwise be unattainable because their existence disappears once the words are spoken,” wrote Nordheimer. “The seizure of text messages falls outside the scope of Part VI because a digital record of them continues to exist after the communication is over.”

The ruling issued by Nordheimer was released before the decision in Telus and Sapiano points to Abella’s reasons where she concluded the definition of intercept did not mean it had to be contemporaneous or simultaneous with the making of the communication. Instead, the analysis should focus on “an individual’s expectation of privacy at the time the communication was made,” she wrote. In his reasons though, Moldaver came to the same conclusion on the result of the appeal, but he explicitly declined to define intercept within the Part VI provisions.

As a result, the various reasons in Telus “do not quite resolve the status of stored messages,” says Scott Hutchison, of Henein Hutchison LLP in Toronto. “What really comes out of Telus is yet another example of the need for legislation to overhaul the judicial pre-authorization regime established under the code,” says Hutchison, author of Search and Seizure Law in Canada. “The technology has evolved — and continues to evolve — in ways that leave investigators, lawyers, and courts trying to fit practices into legislative schemes drafted at a time when phones had rotary dials,” he notes.

Technology and the widespread use of texts also means a broad production order for an individual’s electronic communications over a certain time period may also capture messages involving an innocent party or between a lawyer and client.

That is exactly what happened to Toronto defence lawyer William Jaksa when he was defending a client under investigation by the Ontario Securities Commission. In the course of reviewing disclosure provided by the OSC, Jaksa noticed some of the seized texts included messages between him and his client. “The messages were benign. But they had my subscriber information and also the timing of the communications,” says Jaksa. Also included in the disclosure were some text messages from another lawyer, who was representing the client in a separate criminal proceeding.

Jaksa says the OSC never alerted him to the fact it had solicitor-client communications in its possession and he only realized this after going through the disclosure materials. As a result of what happened in this case, “I don’t trust communicating with my clients electronically,” says Jaksa. Broad requests, which may capture texts between lawyers and clients, could also raise liability issues for counsel. “Texts are short messages. They are open to misinterpretation,” Jaksa states.

The OSC is able to obtain past texts by issuing a summons to the service provider, under its powers in the provincial Securities Act. It says if it becomes aware of solicitor-client communications in its possession, that information would immediately be segregated and sealed to protect the privilege. When texts are obtained, the OSC uses specific search tools to look for only relevant communications, so it may inadvertently have texts between a lawyer and a client it is not aware of, because it was never actually reviewed by the regulator.

While there is the potential for abuse if a request for a production order is too broad, Penney believes the existing legal framework offers sufficient privacy protections as long as it is applied properly. “We don’t necessarily need to amend the law. The means are available to ensure a search is as least intrusive as possible. Issuing judges can impose conditions,” says the criminal law professor. “In practice though, there may need to be a conceptual shift for lawyers and judges to impose these limitations.”

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