COURT OF APPEAL FOR ONTARIO
MacPherson, MacFarland and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Tristan Jones
Appellant
Patrick McCann, for the appellant
Randy Schwartz, for the respondent Her Majesty the Queen in Right of Ontario
Nick Devlin, for the respondent Her Majesty the Queen in Right of Canada
Susan Chapman and Naomi Greckol-Herlich, for the intervener Criminal Lawyers’ Association
Heard: April 4 and 5, 2016
On appeal from the pre-trial ruling, dated September 27, 2012, and the convictions entered on September 25, 2013, by Justice Jacqueline V. Loignon of the Ontario Court of Justice.
A. Introduction
1The appellant, Tristan Jones, and his co-accused, Jermaine Smith and Jafari Waldron, were convicted of several firearms trafficking and drug trafficking offences. The appellant was sentenced to five years’ imprisonment on the gun charges and seven months’ consecutive on the drug charges, less credit for 4.7 years of pre-sentence custody.
2The convictions arose from a police investigation in Ottawa into the possession and trafficking of firearms. In the course of its investigation, the police obtained a production order pursuant to s. 487.012 of Part XV of the Criminal Code, R.S.C. 1985, c. C-46, for records and text messages from a cell phone number associated with Waldron.
3The two principal issues on this appeal relate to the production order: (1) did the appellant have standing to challenge the production order; and (2) was a production order the proper mechanism for obtaining access to the cell phone records and text messages? The application judge’s answers to these two questions were ‘No’ and ‘Yes’. On this appeal, the appellant challenges those answers.
4This appeal was heard together with R. v. Marakah, 2016 ONCA 542 and R. v. Smith, 2016 ONCA 544. The court has released three separate sets of reasons in these appeals.
B. Facts
(1) The parties and events
5In 2009, the Ottawa Police Service initiated ‘Project Lancaster’, an investigation into the possession and trafficking of firearms in the Ottawa area. As part of the investigation, the police obtained a production order directed at Bell, Rogers and Telus (the “Production Order”). The Production Order sought, among other things, any incoming or outgoing text messages on a particular account associated with Waldron.
6Telus was the only provider to retain historical text messaging information, which it provided to the police. Of particular interest was an exchange about the potential sale of a handgun between two phones – one associated with Waldron and one allegedly used by Jones. Both phones were listed under other names.
7Relying in part on this text message exchange, the investigators obtained a Criminal Code Part VI wiretap authorization (the “First Authorization”) for a number of phones associated with the suspects. Communications intercepted under the First Authorization were used to support an additional Part VI wiretap authorization (the “Second Authorization”). Following this, search warrants were granted and executed. The searches resulted in Jones’ marijuana trafficking and proceeds of crime charges. The firearm charges were brought largely on the basis of the text messages obtained under the Production Order.
8The appellant and Waldron challenged the Production Order. They contended that if the police wanted to obtain information about their text messages from service providers, the proper route was a Part VI authorization, not a production order.
9The Crown raised the preliminary issue of standing, arguing that Jones had not adduced any evidence of his privacy interest in the records seized. Jones argued his privacy interest in the text messages seized was self-evident and his standing to challenge the seizure of the messages was virtually automatic.
(2) The application judge’s ruling
10On the s. 8 Charter application, the Crown challenged the appellant’s standing. The application judge applied the analytic framework set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, and concluded that Jones and Waldron did not have standing to challenge the Production Order under s. 8 of the Charter. She said:
[31] …
vi. The existence of a subjective expectation of privacy
There is no evidence whatsoever of any subjective expectation of privacy on the part of either Applicant.
vii. The objective reasonableness of the expectation
There is nothing to suggest from an objective standpoint that the Applicants structured their affairs to maintain privacy over the cell phone records. If anything, the use of a third party demonstrates a willingness to distance and avoid detection or association with the records.
Conclusion
In my view, the totality of the circumstances do not support that the Applicants Waldron and Jones had a reasonable expectation of privacy in relation to the cell phone records produced by Telus. Accordingly, I do not find that Waldron and Jones have standing with respect to a Section 8 argument in relation to the Telus production Order.
11Turning to the challenge of the Production Order, the application judge held that a Part VI authorization was not required for two reasons. First, she found that she was bound by the trial decision in R. v. Telus Communications Co. (2011), 2011 ONSC 1143, 105 O.R. (3d) 411 (Sup. Ct.). In that decision, the court held that the daily production of text messages to police did not constitute an interception of private communications. Second, the application judge said, at para. 18, that “there is no adequate evidentiary foundation for me to rely upon and base any findings.”
12The appellant appeals from these components of the application judge’s ruling. He also appeals two of his convictions – count 9 (offer to transfer a firearm) and count 42 (possession of the proceeds of crime) – on the basis that they were unreasonable verdicts.
C. Issues
13The issues in this appeal are:
(1) Did the application judge err by concluding that the appellant did not have standing to challenge the Production Order?
(2) Did the application judge err by upholding the use of a production order to obtain phone records from Telus?
(3) Was the trial judge’s conviction on count 9 unreasonable?
(4) Was the trial judge’s conviction on count 42 unreasonable?
D. Analysis
(1) Standing
14The application judge held that the appellant did not have standing to challenge the lawfulness of the Production Order.
15Unlike in the companion case Marakah, the appellant did not testify or lead evidence at his Charter application hearing dealing with his subjective expectation of privacy. His position was, as described by the application judge, that his “privacy interest in the text messages seized pursuant to the production order is self-evident.”
16I do not accept this submission. The Telus account and phone in question were in the name of Kurt Gellis, not the appellant. The appellant did not use this phone, nor was he alleged to have used it. There was also nothing to suggest that Telus was contractually bound to the appellant to keep any of the text messages confidential.
17Whether the appellant subjectively had an expectation of privacy is a finding of fact, which is owed deference absent a palpable and overriding error. In these circumstances, a subjective expectation of privacy is far removed from being “self-evident”. It was open to the application judge on the record to find that the appellant had no subjective expectation of privacy. I see no palpable and overriding error in her analysis warranting appellate intervention.
18Further, for the reasons in the companion case Marakah, the application judge did not err by finding that the appellant had no reasonable expectation of privacy in relation to the cell phone records produced by Telus.
(2) Production order v. Part VI authorization
19My conclusion on standing is dispositive of the grounds of appeal relating to the appellant’s s. 8 Charter rights. That being said, I would also agree with the application judge’s findings that a Part VI authorization is not needed to obtain historical text messages.
(a) Parties’ positions
20The appellant contends that previously received text messages fit squarely within the definition of “intercept” and “private communications” under Part VI of the Criminal Code, thus requiring a wiretap authorization. Though the Supreme Court of Canada’s decision in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, only explicitly dealt with the interception of prospective text messages, the appellant submits that Abella J.’s plurality comments1 on the definition of “intercept” are all encompassing and cannot be restricted to undelivered text messages.
21The respondents’ position is that the appellant’s interpretation of “intercept” should be rejected as it contradicts the core principles of statutory interpretation. “Intercept” connotes an interference, such as that between the origin and destination of a communication. Further, an interception occurs while the communication is in progress – it is necessarily prospective. Accordingly, TELUS does not assist, as it did not address the seizure of historical text messages.
(b) Part VI of the Criminal Code
22I begin by noting that the core subject matter of Part VI of the Criminal Code concerns the interception of private communications. It makes it an offence to intercept private communications without statutory or judicial authorization. The purpose of Part VI is to protect private communications from unauthorized interference by the state: TELUS, at para. 35. The protection is structured in two ways: protection against the interception of private communications (see ss. 184-192) and protection against the use or disclosure of intercepted private communications (see s. 193).
23The purpose of limiting police surveillance powers under Part VI was explained by La Forest J. in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at 43-44:
The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it … has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
24In my view, the statutory language and Supreme Court of Canada jurisprudence support the conclusion that Part VI applies exclusively to police surveillance and not to police searches and seizures generally. To determine whether a particular investigative technique constitutes surveillance, thus falling under Part VI, it is important to consider the statutory definitions of “intercept” and “private communications” enumerated in s. 183:
“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.
“private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it.
25The Crown concedes that text messages constitute private communications. I agree. Text messages, whether historical or prospective, clearly meet the definition of private communications. They are a telecommunication and it is reasonable for the originator to expect that they will not be intercepted. In this case, those text messages were also sent and received in Canada.
26Accordingly, this ground of appeal turns on the interpretation of the word “intercept”, and in particular, whether the acquisition of historical text messages constitutes an interception. On this point, TELUS is not helpful. As carefully noted by Justice Abella, the facts before her dealt with obtaining prospective rather than historical text messages. As a result, she specifically limited the application of her reasons to whether the seizure of prospective text messages constitutes an interception:
[15] We have not been asked to determine whether a general warrant is available to authorize the production of historical text messages, or to consider the operation and validity of the production order provision with respect to private communications. Rather, the focus of this appeal is on whether the general warrant power in s. 487.01 of the Code can authorize the prospective production of future text messages from a service provider’s computer. That means that we need not address whether the seizure of the text messages would constitute an interception if it were authorized after the messages were stored. [Emphasis in original.]
27The meaning of “intercept” in the context of a Part VI authorization has been considered by this court on multiple occasions. Each time, this court has explained that “intercept” applies to prospective communications. I cite two recent cases as illustrations.
28In R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, the Court said:
[93] The interception of private communications is an investigative technique or tool to record words spoken by various individuals … The words sought for capture do not exist when the authorization is granted. They may never exist or disclose anything of relevance to any offence under investigation. By nature, the subject-matter sought – communications about an offence – is speculative.
29In R. v. Nero, 2016 ONCA 160, [2016] O.J. No. 1027, Watt J.A. said:
[116] … [The nature of the subject matter of a wiretap authorization is] future communications, not yet in existence, perhaps not even in contemplation at the time the authorization is sought or granted. These communications may never take place.
30In these decisions, this court placed great weight on the temporal aspect of private communications. To fall under Part VI, there needs to be a prospective component to the private communications, otherwise the communications are not being intercepted. This is because the word “intercept” suggests an interference between the place of origin and the destination of the private communication. There is no such interference when obtaining historical text messages stored on a phone or a service provider’s server.
31In TELUS, Abella J. essentially found that acquiring prospective text messages constituted a surveillance of private communications and required a wiretap authorization under Part VI. The difference between the case at hand and TELUS mirrors the distinction between surveillance and searches. Surveillance necessarily deals with prospective communications. On the other hand, I would not describe the production of historical text messages as surveillance or an interception. It is, quite simply, a search and seizure of a historical record of text messages sent and received in the past.
32Further, the determination of whether the text messages in this case fall under Part VI does not turn on the type of information seized. Rather, it comes down to the specific investigative technique used by the police, and whether that technique constitutes an interception of private communications. This point was well articulated by Boswell J. in R. v. Carty, 2014 ONSC 212, [2014] O.J. No. 6081:
[62] … In my view, Part VI was intended to govern the use of the investigative technique of interception. It was not intended to create a special, enhanced privacy interest in personal communications, such that any time the police seek access to records in the nature of personal communications they require a Part VI authorization. There is nothing about personal communications that renders them inherently more intensely private than a great deal of other biographical or personal information that may be contained on computers or smartphones and which is readily available to the police through production orders or search warrants. Banking records, photographs and web browsing histories may all contain information of an intensely private nature, but there is no dispute that they may be validly obtained through the use of non-Part VI authorizations.
33I note that there is jurisprudence from other Canadian courts that is similar to the Ontario case law (Beauchamp, Nero and Carty) on this point. The most important, in my view, is the recent decision of the British Columbia Court of Appeal in R. v. Belcourt, 2015 BCCA 126, 322 C.C.C. (3d) 93. The issue in Belcourt was precisely the same as the issue in this appeal. For a unanimous court, Kirkpatrick J.A. said:
[45] I readily concede that the acquisition of a text message by the police in this interim transit period could constitute an interception within the plain meaning of the word. However, this is because the recipient has yet to receive the message, and may never receive the message. In stepping between a sender and recipient to acquire a message and its content before it is received, and when it may never be received, the police are “intercepting” the message in the most literal sense of the word.
[46] The distinctive feature of the police investigation discussed above is that they interject themselves in the communication process by using an investigative technique that comes between the sender and receiver of a message. As I discuss below, and as Moldaver J. observes in his reasons in Telus, this is exactly the type of technique that Part VI authorization was meant to encompass. This investigative technique, however, is different from the case where the police seek to obtain a stored electronic record of a text message after it has been sent and received.
[47] The detailed requirements found in Part VI exist to address the fact that the evidence sought to be acquired by the police has not yet come into existence at the time that the judicial authorization for its acquisition is being sought: see R. v. Finlay (1985), 1985 CanLII 117 (ON CA), 23 C.C.C. (3d) 48 (Ont. C.A.) at 63-64. Indeed, the constitutionality of Part VI derives from the safeguards that are imposed by the role of the judge granting the authorization, which exist because of the danger that the interception of private communications could easily transform into a fishing expedition: Finlay 78: see also R. v. Araujou, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 29. Put simply, it is inherent in the nature of Part VI authorization that the investigative technique to be utilized by the police is prospective, which requires a distinct form of judicial authorization in comparison to other search warrant provisions. In my view, applying Part VI to evidence already in existence is a misapprehension of the form of authorization provided for in that section of the Code.
[48] It is a necessary consequence of the very nature of the scheme that is set out in Part VI that any retrospective investigation technique is outside its ambit. In contrast to the prospective operation of Part VI, search warrants, whether part of the Code or another Act of Parliament, may not be issued in anticipation of an event or situation in the future which (if it existed in the present) would justify issuing a search warrant: see e.g., R. v. Cameron (1984), 1984 CanLII 474 (BC CA), 16 C.C.C. (3d) 240 (B.C.C.A.) at 242. On this point, it is important to note that the law regarding search warrants applies to production orders: see e.g., Canadian Broadcasting Corp. v. Manitoba (Attorney General), (2009), 2009 MBCA 122, 250 C.C.C. (3d) 61 (Man. C.A.).
[49] The requirement that the search warrant only pertain to the search and seizure of specified things already in existence is essential to the operation of the safeguards inherent in the authorization scheme common to s. 487, including s. 487.012 (i.e., that there are reasonable grounds to believe that the specified articles to be seized “will afford evidence with respect to the commission of an offence”): see e.g., CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743.
[50] As I have said, the acquisition of stored, historical communications is not, and cannot be, prospective. As a result, it is outside the ambit of Part VI of the Code to require that existing communications stored in electronic form be authorized under that section. In my view, requiring Part VI authorization for acquisitions of evidence already in existence is inconsistent with the law of search and seizure in Canada.
[51] A.J.B.’s submission, taken to its logical extension, would require the police to obtain Part VI authorization for any acquisition of private communication in any circumstance, regardless of how far in the past it had been made. In my opinion, a fair reading of Justice Abella’s reasons [in Telus] does not support such an expansive proposition. As I indicated above, her analysis was carefully circumscribed to the question of the prospective acquisition of messages, which was, moreover, the principal issue before the Court.
34I entirely agree with this analysis and conclusion.
35I make one final comment on this issue. A requirement that the police must obtain a Part Vl wiretap authorization in order to acquire historical private communications from computers, cell phones and other electronic devices would be inconsistent with several leading decisions of the Supreme Court of Canada. It would also be a seriously retrogressive step in the administration of Canadian criminal justice. On these points, I agree with what the provincial Crown says in its factum:
- It would be difficult to overstate the profound negative consequences for criminal investigations if the appellants’ position were followed and a wiretap authorization came to be required for the acquisition of historical private communications from any computer or device. Much has been said about the proliferation of computers in modern society and the delicate balance the courts must strike between the digital privacy interests of the individual and the public interest in allowing police access to relevant computer data so they can properly conduct investigations. A rule that requires a wiretap authorization whenever the police access historical private communications would upset this balance by transforming virtually all searches of computers, smartphones and tablets into Part VI authorizations. It would also call into doubt the correctness of recent decisions of the Supreme Court of Canada in R. v. Morelli, R. v. Vu, and R. v. Fearon, which recognize that historical private communications may be seized from devices not with a wiretap authorization but with ordinary search warrants or through recourse to the warrantless power to search incident to arrest. It is difficult to comprehend how these decisions could somehow have overlooked the potential application of Part VI. Yet this is the effect of the appellants’ position.
36For these reasons, it is my view that the application judge was correct in upholding the use of a production order to enable the police to obtain phone records from Telus. A Part VI authorization is not required for the search and seizure of historical text messages.
(3) Unreasonable verdicts
37In his Notice of Appeal and factum, the appellant challenged his convictions on counts 9, 18 and 42 as being unreasonable. In oral submissions, he abandoned his appeal with respect to count 18.
(a) Count 9 – Offer to Transfer a Firearm
38The appellant’s conviction on count 9 (offer to transfer a firearm) was based on evidence that on November 25, 2009 the appellant and the co-accused Waldron worked together to transfer a firearm to Shridev Café. Waldron confirmed Café’s interest in purchasing a firearm, negotiated the purchase price, and arranged to meet Café. The appellant spoke to Waldron in coded language about the price they would pay and their profit margin. On February 10, 2010, a revolver was seized from Café’s residence. The revolver was a prohibited weapon in firing condition.
39The evidence supporting count 9 consisted mainly of text messages between the appellant and Waldron and between Waldron and Café. There were no text messages or other communication between the appellant and Café directly.
40The trial judge supported her conviction of the appellant and the co-accused in this fashion:
[99] Based on the communications between Café and Waldron, it is clear that the offer made was meant to be genuine given the arrangements made to meet. I am satisfied that all the elements of the offence have been made out with respect to an offer to traffic in firearms by Jaffari Waldron. With respect to Mr. Jones, his actions while not directly with Mr. Café demonstrate direct participation in the offence. Indeed, irrespective of their respective roles, Waldron and Jones worked together in order to ensure that a product was available to be offered to Mr. Café.
41When reviewing whether a conviction was unreasonable, an appellate court must consider whether the verdict is one that a properly instructed jury, acting judicially, could have rendered. As explained by Watt J.A. in R. v. Smith, 2016 ONCA 25, [2016] O.J. No. 144:
[75] In cases tried without a jury, the unreasonableness analysis required under R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:
i. plainly contradicted by the evidence relied upon by the judge for that purpose; or
ii. demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: Sinclair, at para. 16.
42In my view, the high threshold for a finding of unreasonable verdict is not met with respect to count 9. The trial judge was entitled to accept the expert evidence relating to the meaning of the text messages and draw the conclusion that she did about the appellant’s role.
(b) Count 42 – Possession of the Proceeds of Crime
43The appellant’s conviction on count 42 (possession of the proceeds of crime) was based on the evidence relating to the appellant’s involvement in drug trafficking. When the police executed a search warrant at the appellant’s residence, they located $2,595 CAD and $1,060 USD, $1,755 of which was on the appellant’s person.
44The trial judge’s conclusion on this count was:
[223] Given the conclusion that Jones was trafficking in marihuana, given the drugs found in the residence along with the tools of the trade, and finally given the amount of cash seized from Mr. Jones specifically, it is a reasonable inference that the currency seized was the proceeds of his illegal activities.
45I see nothing unreasonable about the inference drawn from this evidence by the trial judge.
E. disposition
46I would dismiss the appeal.
“J.C. MacPherson J.A.”
“I agree. J. MacFarland J.A.”
47I agree with my colleague that the application judge did not err by upholding the use of a production order and that the convictions on counts 9 and 42 were not unreasonable. Therefore, for the reasons given by my colleague in respect of those three issues, I agree that the appeal should be dismissed.
Released: July 8, 2016 (“J.C.M.”)
“H.S. LaForme J.A.”
