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This Week at the SCC (01/04/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tetrault LLP

Posted in This Week at the SCC
Martin Boodman

Is the Medium the Message?

In R. v. TELUS Communications Co., 2013 SCC 16, a majority of the Supreme Court of Canada this week enhanced the protection of individual privacy by restricting police access to text messages. In essence, Telus successfully challenged the procedure by which the police obtained authorization to access text messages stored in the Telus computer database. The result is that the rigorous wiretap authorization procedure (rather than less rigorous alternative processes) applies where the police seek in advance access to future text messages.

The debate arose because the police had obtained authorization to access text messages from Telus under the Criminal Code “general warrant” procedure. A general warrant was available only if there were no other provision of the Criminal Code that could provide the necessary authorization to get the text messages. The particular issue was whether the police “intercept a private communication” when they retrieve the messages from the Telus database, thereby requiring a wiretap authorization.

The majority decision of Abella J. (Lebel and Fish JJ. concurring) held that “intercept” must be interpreted in a manner that addresses the reality of modern communication. Interception “implies that the private communication is acquired in the course of the communication process” which includes “all activities of the service provider which are required for, or incidental to, the provision of the communication service”. It is not necessary that the interception or acquisition of the substance or meaning of a communication be simultaneous or contemporaneous with the making of the communication. The majority held that interpretation of the Criminal Code provisions protecting individual privacy should not be dictated by the technology used or by technical differences resulting from Telus’ storage of text messages, unlike other service providers. The majority assimilated text messaging to an electronic conversation for which there is an expectation of privacy. Accordingly, the police should have obtained access to the text messages in the Telus computer database through the wiretap authorization process.

The majority decision of Moldaver J. (Karakatsanis J. concurring) held that access to the text messages was “substantively equivalent” to an “intercept” (rather than being an intercept). Therefore, access should have been authorized as a wiretap. In other words, the general warrant process was not appropriate.

In a compelling dissent based on a “close” reading of the relevant provisions of the Criminal Code, Cromwell J. (McLachlin C.J. concurring) stated that the distinction between interception and disclosure or use of an intercepted communication is fundamental to the legislative regime governing wiretaps. Telus had intercepted the text messages (under a statutory exemption) when it copied them to its database. By contrast, the general warrant merely required Telus to provide or disclose communications it had previously intercepted. The police did not intercept the already intercepted and stored messages. According to Cromwell J., the wide statutory definition of “intercept” suggested by the majority would extend the wiretap regime to include the search and seizure of emails or other copies of private communications stored on computers or other electronic devices, now regulated by other regimes.

The Telus decision illustrates how difficult it is and will be for legislatures and courts to adapt to the rampant pace of technological change. Faced with a potential legislative gap, should the expectation and protection of individual privacy trump apparently clear legislative language? What is the role of unexpected technological differences in statutory interpretation, and possibly contract interpretation? The Telus decision is restricted to prospective police authorization for access to future text messages. It is clear that the issues raised by the case will be revisited in other contexts concerning police investigative powers (eg. access to past stored text messages) and possibly in wider domains as social media have an increasing impact on the message.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson