Her Majesty the Queen v. July

[Indexed as: R. v. July]

Ontario Reports

Court of Appeal for Ontario

Pepall, Hourigan and L.B. Roberts JJ.A.

August 5, 2020

152 O.R. (3d) 1 | 2020 ONCA 492

Case Summary

Appeal — Overruling appellate decisions — Appellant applying to exclude text messages from evidence on the ground that absence of requirement for investigative necessity under s. 487.012 of Criminal Code rendered it inconsistent with s. 8 of Charter — Appellant pleading guilty after application dismissed — Appellant permitted to appeal s. 8 ruling on the basis of uninformed guilty plea — No reason to overturn controlling and settled jurisprudence — Appeal dismissed — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 487.012.

Charter of Rights and Freedoms — Fundamental justice — Appellant applying to exclude text messages from evidence on the ground that absence of requirement for investigative necessity under s. 487.012 of Criminal Code rendered it inconsistent with s. 8 of Charter — Appellant pleading guilty after application dismissed — Appellant permitted to appeal s. 8 ruling on the basis of uninformed guilty plea — Section 487.012 did not create an arbitrary distinction between prospective text messages requiring investigative necessity and historical messages with no such requirement — Appeal dismissed — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 487.012.

Charter of Rights and Freedoms — Search and seizure — Interception of private communications — Interception of text messages — Appellant applying to exclude text messages from evidence on the ground that absence of requirement for investigative necessity under s. 487.012 of Criminal Code rendered it inconsistent with s. 8 of Charter — Appellant pleading guilty after application dismissed — Appellant permitted to appeal s. 8 ruling on the basis of uninformed guilty plea — No reason to overturn controlling and settled jurisprudence — Appeal dismissed — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 487.012.

Criminal law — Plea of guilty — Withdrawal of guilty plea on appeal — Appellant applying to exclude text messages from evidence on the ground that absence of requirement for investigative necessity under s. 487.012 of Criminal Code rendered it inconsistent with s. 8 of Charter — Appellant pleading guilty after application dismissed — Appellant permitted to appeal s. 8 ruling on the basis of being unaware that guilty plea precluded him from appealing conviction — No reason to overturn controlling and settled jurisprudence — Appeal dismissed — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 487.012.

Criminal law — Interception of private communications — Appellant applying to exclude text messages from evidence on the ground that absence of requirement for investigative necessity under s. 487.012 of Criminal Code rendered it inconsistent with s. 8 of Charter — Appellant pleading guilty after application dismissed — Appellant permitted to appeal s. 8 ruling on the basis of uninformed guilty plea — No reason to overturn controlling and settled jurisprudence — Appeal dismissed — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 487.012.

Toronto police established a task force to investigate four murders that took place over 75 days. They analyzed the cellphone of one of the victims and discovered many communications with a number associated with the prime target of the investigation. The police obtained a production order under s. 487.012 of the Criminal Code for records of that person's phone number, including activity records, subscriber information and text messages. Some of the messages were to a cellphone number registered to the appellant and related to the sale of firearms by the appellant. The police then obtained an authorization to intercept communications pursuant to s. 186 of the Code, identifying the appellant as a target. The intercepted messages involved the sale of a gun. Following police surveillance, the appellant was arrested and indicted on four counts of firearms trafficking offences. He applied to exclude the text messages on the ground that they were obtained in an unreasonable search and seizure, contrary to s. 8 of the Canadian Charter of Rights and Freedoms. The application was dismissed. The appellant's defence at trial relied exclusively on the application to exclude the text messages from evidence. He pleaded guilty to one count of trafficking a firearm and served three years. He brought an appeal in which he sought to file fresh evidence to the effect that his guilty plea was uninformed because he was unaware that by pleading guilty he would be precluded from appealing the s. 8 ruling as he had intended.

Held, the appeal should be dismissed.

The Crown consented to the admission of the fresh evidence and leave was granted to admit it. The Crown did not object to the Court's review of the application judge's ruling to determine whether the uninformed nature of the guilty plea warrants intervention.

The absence of a requirement of investigative necessity for the production of historical text messages did not render s. 487.012 unconstitutional. Sections 184.2 and 186 of the Code involved interception of prospective communications commonly referred to as wiretaps. Section 184.2 involved interception with consent and carried no investigative necessity requirement. Section 186 interceptions were done without consent of the parties involved and had an investigative necessity requirement in that an authorizing judge had to be satisfied that other investigative techniques had been tried and failed or were otherwise impractical in light of the urgency of the matter. The controlling and settled jurisprudence established that investigative necessity was not a constitutional requirement for wiretap authorizations. Accordingly, investigative necessity was not a constitutional prerequisite to a production order for historic text messages given that wiretap authorizations were more intrusive of privacy interests.

The appellant had requested a five-judge panel based on his argument that the Court ought to overturn its own previous decisions on the issue. There were compelling reasons not to do so. A production order was not without safeguards. An investigative necessity requirement for all seizures of historical text messages would unduly hamper the ability of law enforcement to investigate and prevent crime without a corresponding benefit to legitimate privacy interests. An investigative necessity requirement would have been difficult to reconcile with other jurisprudence from the Supreme Court of Canada. In recent amendments to the Code, Parliament had not seen the need to incorporate any investigative requirement into provisions dealing with production orders.

The distinction between historical and prospective text message searches was not arbitrary. Prospective authorization to intercept future messages engaged a different mechanism, unique privacy concerns, speculation and surveillance possibly continuing over a prolonged period. Historical searches did not share all of those characteristics. The appellant's argument that police could sidestep the requirements for prospective searches by waiting until the exchange of text messages was rejected. Sidestepping was impermissible. It did not follow from the fact that a search power might be used impermissibly or unlawfully that the lawful and permissible use of the power violated an individual's s. 8 Charter rights.

R. v. Largie (2010), 101 O.R. (3d) 561, [2010] O.J. No. 3384, 2010 ONCA 548, 266 O.A.C. 103, 258 C.C.C. (3d) 297, 216 C.R.R. (2d) 1, 90 W.C.B. (2d) 644 (C.A.) [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 119]; R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, 321 O.A.C. 199, 313 C.C.C. (3d) 159, 317 C.R.R. (2d) 314, 114 W.C.B. (2d) 700 (C.A.) [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 460, 2015 CanLII 1812], affd

R. v. Fegan (1993), 1993 CanLII 8607 (ON CA), 13 O.R. (3d) 88, [1993] O.J. No. 733, 62 O.A.C. 146, 80 C.C.C. (3d) 356, 21 C.R. (4th) 65, 14 C.R.R. (2d) 250, 19 W.C.B. (2d) 313, 1993 CCAN para. 10,012; R. v. Jones, [2017] 2 S.C.R. 696, [2017] S.C.J. No. 60, 2017 SCC 60, 142 W.C.B. (2d) 343, 42 C.R. (7th) 74, 357 C.C.C. (3d) 350, 418 D.L.R. (4th) 382, 396 C.R.R. (2d) 212, 2017EXP-3391, EYB 2017-287963, apld

R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, J.E. 2001-74, 143 B.C.A.C. 257, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1, 48 W.C.B. (2d) 65, REJB 2000-21474; R. v. B. (S.A.), [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, 2003 SCC 60, 231 D.L.R. (4th) 602, 311 N.R. 1, [2004] 2 W.W.R. 199, J.E. 2003-2086, 21 Alta. L.R. (4th) 207, 339 A.R. 1, 178 C.C.C. (3d) 193, 14 C.R. (6th) 205, 112 C.R.R. (2d) 155, 58 W.C.B. (2d) 430, 2003 DFQ para. 10,291, JCPQ 2003-151; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342, 1990 CCAN para. 10,058, consd

Other cases referred to

Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6, 99 D.L.R. (4th) 350, 146 N.R. 270, J.E. 93-242, 78 C.C.C. (3d) 510, 18 C.R. (4th) 374, 13 C.R.R. (2d) 65, [1993] 1 C.T.C. 111, 93 D.T.C. 5018, 37 A.C.W.S. (3d) 1297, 18 W.C.B. (2d) 355, 1993 CCAN para. 10,001; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50 (SCC), [1991] 3 S.C.R. 459, [1991] S.C.J. No. 88, 85 D.L.R. (4th) 57, 130 N.R. 362, J.E. 91-1762, 119 N.B.R. (2d) 271, 67 C.C.C. (3d) 544, 9 C.R. (4th) 192, 7 C.R.R. (2d) 270, 30 A.C.W.S. (3d) 44, 14 W.C.B. (2d) 210, 1991 CCAN para. 10,039; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, J.E. 84-770, 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 9 C.R.R. 355, 84 D.T.C. 6467, 1984 CCAN para. 10,006; R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 333 O.A.C. 87, 123 W.C.B. (2d) 262, 326 C.C.C. (3d) 280 (C.A.); R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, 15 W.C.B. (2d) 387, 1987 CCAN para. 10,002, [1987] D.L.Q. 416; R. v. Doiron, [2007] N.B.J. No. 189, 2007 NBCA 41, 315 N.B.R. (2d) 205, 221 C.C.C. (3d) 97, 158 C.R.R. (2d) 299, 74 W.C.B. (2d) 177 (C.A.) [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 413]; R. v. Duarte (1990), 1990 CanLII 150 (SCC), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, 65 D.L.R. (4th) 240, 103 N.R. 86, J.E. 90-263, 37 O.A.C. 322, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281, 45 C.R.R. 278, 9 W.C.B. (2d) 230, 1990 CCAN para. 10,003; R. v. E. (L.), [2019] O.J. No. 6132, 2019 ONCA 961, 382 C.C.C. (3d) 202 (C.A.) [Leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 41]; R. v. Fearon (2014), 129 O.R. (3d) 479, [2014] 3 S.C.R. 621, [2014] S.C.J. No. 77, 2014 SCC 77, 385 D.L.R. (4th) 211, 465 N.R. 205, J.E. 2014-2187, 326 O.A.C. 1, 318 C.C.C. (3d) 182, 15 C.R. (7th) 221, 323 C.R.R. (2d) 307, 118 W.C.B. (2d) 358, EYB 2014-245513, 2014 CCAN para. 10,123, 2014EXP-3908; R. v. Moore, [2014] O.J. No. 6753, 2014 ONSC 6621 (S.C.J.); R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, 316 D.L.R. (4th) 1, 399 N.R. 200, [2010] 4 W.W.R. 193, J.E. 2010-576, 346 Sask. R. 1, 252 C.C.C. (3d) 273, 72 C.R. (6th) 208, 207 C.R.R. (2d) 153, 86 W.C.B. (2d) 949, EYB 2010-171050, 2010 CCAN para. 10,015, 2010EXP-1068; R. v. TELUS Communications Co. [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16, 2013 SCC 16, 356 D.L.R. (4th) 195, 442 N.R. 1, J.E. 2013-551, 304 O.A.C. 1, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 279 C.R.R. (2d) 100, 107 W.C.B. (2d) 73, EYB 2013-219905, 2013 CCAN para. 10,024, 2013EXP-999; R. v. Vice Media Canada Inc., [2018] 3 S.C.R. 374, [2018] S.C.J. No. 53, 2018 SCC 53, 50 C.R. (7th) 295, 428 D.L.R. (4th) 389, 41 Admin. L.R. (6th) 175, 368 C.C.C. (3d) 149, EYB 2018-304712, affg (2017), 137 O.R. (3d) 263, [2017] O.J. No. 1431, 2017 ONCA 231, 138 W.C.B. (2d) 41, 412 D.L.R. (4th) 531, 23 Admin. L.R. (6th) 66, 352 C.C.C. (3d) 355 (C.A.); R. v. Vu, [2013] 3 S.C.R. 657, [2013] S.C.J. No. 60, 2013 SCC 60, 365 D.L.R. (4th) 601, 451 N.R. 199, J.E. 2013-1939, 345 B.C.A.C. 155, 302 C.C.C. (3d) 427, 6 C.R. (7th) 1, 110 W.C.B. (2d) 109, EYB 2013-228909, 2013 CCAN para. 10,071, 2013EXP-3567; R. v. Y. (N.), [2008] O.J. No. 1432 (S.C.J.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(2)

Criminal Code, R.S.C. 1985, c. C-46, Part VI [as am.], ss. 184.2 [as am.], 186 [as am.], (1), (a), (b), (1.1), 487.012 [as am.], (4) [as am.], 487.014 [as am.], 487.019 [as am.]

Authorities referred to

Craig, Jared, "Terrorism, Criminal Organizations, and Investigative Necessity for Wire-Taps" (2014), 61:2 Crim. L.Q. 176

Whitling, N.J., "Wiretapping, Investigative Necessity, and the Charter" (2002), 46:1 Crim. L.Q. 89

APPEAL from the conviction for firearms trafficking by J.E. Kelly J. of the Superior Court of Justice on October 8, 2015.

Gerald Chan and Spencer Bass, for appellant.

Andrew Hotke, for respondent.

The judgment of the court was delivered by

PEPALL J.A.: —

Introduction

[1] The principal issue on this appeal is whether the seizure of historical text messages based on a production order granted pursuant to s. 487.012 (now s. 487.014)[^1] of the Criminal Code, R.S.C. 1985, c. C-46, and served on a third-party service provider, is constitutional.

[2] The appellant accepts that, as a matter of statutory construction, historical text messages may be the subject of a production order under s. 487.012 and that, in this case, the police met all of the statutory prerequisites under that provision. However, the appellant asserts that his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms was violated because the police failed to establish investigative necessity when they obtained a production order for the search and seizure of the appellant's historical text messages. He argues that investigative necessity is constitutionally required for future, non-existent communications, commonly referred to as wiretaps or intercepts, and should therefore be equally required for an order to produce historical text messages. In addition, he argues that the law authorizing the production order was arbitrary and unreasonable due to the different requirements for the seizure of historical as opposed to prospective text messages.

[3] The Crown disputes any need to establish investigative necessity for the purposes of a production order. It argues that investigative necessity is not a constitutional requirement for intercepts, and that establishing such a requirement would be contrary to settled jurisprudence and would impose an unjustified and unreasonable restriction on the ability of law enforcement to seek such records through production orders. The Crown also submits that the law governing the seizure of historical messages is not arbitrary, and in any event, the issue of arbitrariness did not arise on the facts of this case.

[4] For the reasons that follow, I would dismiss the appeal.

Background Facts

[5] The background facts are not disputed.

(a) Production order

[6] In early 2011, Toronto police established a task force to investigate four murders that took place over a period of 75 days in the fall of 2010. Mark Moore was identified as the prime target of the investigation. Police analyzed the cellphone of one of the murder victims and discovered a large number of communications between the victim and a number associated with Moore, who was eventually charged in relation to the murders. An analysis of the victim's cellphone revealed 19 communications between his phone and the number associated with Moore during the afternoon of November 24, 2010, the date the victim was killed.

[7] The police then obtained a production order under s. 487.012 of the Code for records relating to the phone number associated with Moore. The order required Telus to produce all activity records, subscriber information and text messages related to that number for the period August 14, 2010 to January 11, 2011 (the order in issue).

[8] On examination of those records, the police discovered text messages in late 2010 and early 2011 to a cellphone number registered to the appellant. In these messages, the appellant and Moore discussed the potential sale of firearms and the previous sale of ammunition by the appellant to Moore.

(b) Transactions

[9] Based on these text messages, the police then obtained an authorization to intercept communications associated with various numbers pursuant to s. 186 of the Code. They identified the appellant as a target and intercepted messages sent and received on his Rogers phone. These messages revealed that Deshawn Hibbert contacted the appellant looking to purchase a gun. The appellant responded that he had nothing at the moment but would contact Hibbert when he got anything. In a conversation on August 17, 2011, the appellant offered to sell Hibbert a revolver for $1,900 along with ammunition.

[10] The sale of the gun took place in the early morning hours of August 18, 2011. That afternoon, the police arrested Hibbert who was in possession of the gun sold to him by the appellant and which was loaded with a single round of ammunition.

(c) Arrest and charges

[11] Acting on information derived from the intercepted communications, the police conducted surveillance and ultimately arrested the appellant on October 13, 2011. On November 6, 2012, he was indicted on four counts of firearms trafficking offences.

[12] The appellant declined to discuss these charges with police but did discuss his involvement with Moore. He confirmed text messages showing that he had sold three boxes of ammunition to Moore in March 2011 and had gun sales with him that had not been consummated.

[13] The appellant testified at Moore's preliminary hearing and trial. He stated that in 2010 and 2011, he would supplement his income by selling ammunition and had brokered the sale of handguns on a number of occasions. He explained the unconsummated firearms transactions with Moore and testified that he had sold Moore ammunition several times.

(d) Section 8 Charter application

[14] The appellant, Moore (who had been charged with four counts of first degree murder), and Moore's girlfriend, Tassandra Whyte (charged in a separate indictment), brought applications to exclude the text messages obtained from Telus pursuant to the judicially authorized production order on the basis that they were obtained in an unreasonable search and seizure.

[15] The application judge, Dambrot J., heard the applications on November 3, 2014: [2014] O.J. No. 6753, 2014 ONSC 6621 (S.C.J.). He observed that, at the time the application was heard, no cellular telephone service provider copied or stored text messages sent or received by its customers, except when ordered to do so by a court. Telus' practice in this respect changed in April 2013. From August 14, 2010 to March 22, 2011, it retained the content of text messages so that it could investigate and resolve customer and technical issues.

[16] The application judge noted that the applicants did not take issue with the sufficiency of the grounds for the issuance of the production order; their argument was that the vehicle of a production order was unavailable for the seizure of the content of private communications.

[17] The application judge dismissed the applicants' s. 8 application.

[18] At paras. 10-52, he addressed and rejected their first two arguments that s. 487.012 did not authorize the issuance of an order requiring production of private communications and that a production order under s. 487.012 for historical text messages was precluded by other sections of the Code. The appellant does not appeal the decision in this regard.

[19] At para. 53, the application judge turned to the third issue: if s. 487.012 of the Code did authorize orders for the production of historical text messages, was it inconsistent with s. 8 of the Charter?

[20] The application judge described how a production order under s. 487.012 could only issue upon satisfying a judge or justice, on an information on oath and in writing, that (1) an offence had been committed; (2) the document or data would afford evidence of the commission of the offence; (3) the person who was the subject of the order was not under investigation for the offence; and (4) that person had possession or control of the document or data. He noted that these statutory conditions met the traditional minimums for a reasonable search and seizure under s. 8 of the Charter as described by Dickson J. (as he then was) in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at p. 168 S.C.R.: ". . . reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure".

[21] The application judge addressed the applicants' submission that the absence of the requirement of investigative necessity in s. 487.012 rendered that section unconstitutional insofar as it authorized the seizure of private communications. He concluded that this argument could not succeed. At para. 59, he reasoned:

In R. v. Lucas, 2014 ONCA 561, 313 C.C.C. (3d) 159, the Court considered an argument that s. 186(1.1) of the Criminal Code, which permits an authorization to intercept private communications without the need to establish investigative necessity in relation to certain criminal organization offences, is inconsistent with s. 8 of the Charter by reason of this omission. The argument failed. In reaching this conclusion, Rosenberg J.A. performed a careful review of all of the cases in which an argument was advanced that investigative necessity was a constitutional prerequisite to a particular search power. I see no need to rehearse it here. It is sufficient to say that the Court concluded in Lucas, at para. 95, that s. 186(1) (a) embodies the constitutional requirement for a wiretap authorization, specifically, reasonable and probable grounds to believe that a specified crime has been or is being committed, and that the interception of the private communications proposed will afford evidence of the crime. If investigative necessity is not a constitutional prerequisite to a wiretap authorization, perforce it is not a prerequisite to a production order for historic text messages.

[22] He dismissed all of the applicants' arguments. He concluded that there was no violation of s. 8 of the Charter, the text messages were validly obtained, and s. 487.012 of the Code was not inconsistent with the Charter. Despite his decision, he invited counsel to address the s. 24(2) issue of exclusion of evidence at a future date, but this never materialized.

(e) Appellant's guilty plea

[23] The appellant's defence at trial relied exclusively on the application to exclude the text messages from evidence. His trial proceeded before Kelly J. Before her, he pled guilty to one count of trafficking a firearm. He received a three-year sentence, which he has now served.

Fresh Evidence

[24] On this appeal, the appellant seeks to set aside his guilty plea and seeks to file fresh evidence consisting of affidavits from himself and from his trial counsel. In his affidavit, he states that while he pleaded guilty after losing his Charter application, he always intended to appeal his conviction on the basis that the application judge erred in dismissing his pretrial application. He also states that he was not advised that by pleading guilty, he would be waiving his right to appeal that decision.

[25] Trial counsel's affidavit sets out the circumstances of the appellant's guilty plea. Trial counsel explains that he did not suggest to the appellant the alternative of simply not contesting the facts nor did he advise the appellant that a guilty plea may foreclose his right to appeal the Charter application. He explains that in February 2016, he wrote to Legal Aid seeking funding for the appellant's appeal of the application judge's s. 8 Charter decision but did not identify the appellant's guilty plea as an obstacle to the appeal. Trial counsel believed that the appellant intended to seek a review of the application judge's dismissal of the Charter application.

[26] In support of his fresh evidence application, the appellant also filed the consent of the Crown to the filing of the fresh evidence, consisting of the two affidavits.

[27] In essence, the appellant argues that his guilty plea was uninformed because he was unaware that by pleading guilty he would be precluded from appealing the s. 8 Charter ruling as he intended.

[28] The Crown consents to the admission of the fresh evidence.

[29] Pursuant to the principles in R. v. Fegan (1993), 1993 CanLII 8607 (ON CA), 13 O.R. (3d) 88, [1993] O.J. No. 733 (C.A.), this court is permitted to review the correctness of the application judge's ruling to determine whether the uninformed nature of the appellant's guilty plea warrants intervention. The Crown does not object to such a review.

[30] I would grant leave to admit the fresh evidence filed by the appellant and would consider the appellant's challenge to the application judge's ruling to determine whether it is meritorious.

Issues on Appeal

[31] Section 8 of the Charter states: "Everyone has the right to be secure against unreasonable search or seizure." As a majority of the Supreme Court noted in R. v. Jones, [2017] 2 S.C.R. 696, [2017] S.C.J. No. 60, 2017 SCC 60, at para. 11:

[Section 8's] basic interpretive structure is well known and consists of two stages. First, the appellant must show that a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18). Second, the claimant must show that the search or seizure was itself unreasonable. [Footnote omitted.] As a general rule, a Charter claimant must prove both the existence of a reasonable expectation of privacy in the relevant subject matter and the unreasonableness of the search or seizure of that subject matter in order to make out a breach of s. 8 (see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265).

[32] In the case under appeal, there is no real issue that the appellant had a reasonable expectation of privacy in historical text messages stored by Telus. The Crown does not take issue with the appellant's standing to challenge the validity of the production order and the authorized seizures. Applying Jones, at paras. 52-55, I would conclude that the appellant has standing.

[33] The principal question is whether the search and seizure was reasonable under the second branch of the s. 8 test. A search "will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable": [R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15], at p. 278 S.C.R.; Jones, at para. 57. As mentioned, the appellant accepts that historical text messages may be the subject of a production order under s. 487.012 of the Code and that the police met all of the statutory prerequisites under that provision in this case (the first and third requirements). The issue is whether "the law itself is reasonable".

(a) Investigative necessity

[34] The first ground of appeal advanced by the appellant is that s. 487.012 was not reasonable because it did not require the police to establish investigative necessity when they obtained a production order to compel Telus to produce records of historical text messages sent and received by Moore. The appellant submits that investigative necessity is a constitutional requirement for s. 186 wiretaps and should also be a requirement for the seizure of historical text messages. The appellant argues that the seizure of such messages without the need to establish investigative necessity is therefore unreasonable and in violation of s. 8.

[35] The Code contains several provisions that enable the police to seek authorization to access communications. For the purposes of this appeal, I will address authorizations to intercept private communications under Part VI of the Code, commonly referred to as wiretaps. These permit police to receive messages as they are being sent or received. I will then discuss s. 487.012 production orders.

(b) Wiretaps

[36] Section 186 allows the police to obtain an authorization to intercept the private communications of third parties where none of the parties to the communication consent to the interception ("third party intercept"). To issue an authorization for a third party intercept, the authorizing judge must be satisfied (a) that it would be in the best interests of the administration of justice to do so; and (b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. This latter requirement is known as the investigative necessity requirement. Section 186(1.1) identifies certain specific instances where investigative necessity need not be established, such as when the authorization is required to investigate criminal organization or terrorism offences.

[37] Section 184.2 of the Code, entitled "Interception with consent", addresses authorization to intercept private communications where one of the participants has consented to the interception. There is no investigative necessity requirement for such an authorization.

[38] These types of interceptions of prospective communications, including text messages, are commonly referred to as wiretaps.

(c) Production order

[39] The police may obtain the contents of stored historical text messages by means of a production order under s. 487.014 (previously s. 487.012). Justice Doherty succinctly described the parameters of a production order in R. v. Vice Media Canada Inc. (2017), 137 O.R. (3d) 263, [2017] O.J. No. 1431, 2017 ONCA 231 (C.A.), at para. 28, affd [2018] 3 S.C.R. 374, [2018] S.C.J. No. 53, 2018 SCC 53:

A production order under s. 487.014 of the Criminal Code is a means by which the police can obtain documents, including electronic documents, from individuals who are not under investigation. The section empowers the justice or judge to make a production order if satisfied, by the information placed before her, that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person's possession or control; and (iii) it will afford evidence of the commission of the named offence. If those three conditions exist, the justice or judge can exercise her discretion in favour of granting the production order. She may, however, decline to make the order even if those conditions exist. In deciding whether to exercise her discretion in favour of making the production order, she will have regard to the impact of that order on the constitutionally protected rights of the target of the order and the public. The more significant the negative impact, the more cogent must be the grounds for seeking the order: see Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49 (SCC), [1991] 3 S.C.R. 421, at p. 444.

[40] Section 487.012 was relied upon by the police in the case under appeal. At the material time, the three conditions above appeared in s. 487.012 with slight modifications.

[41] For ease of reference, I have included the aforementioned sections of the Code in an Appendix attached to these reasons.

(d) Appellant's wiretap submission

[42] The appellant's first argument falters on its initial premise. Contrary to his assertion, the prevailing jurisprudence establishes that investigative necessity is not a constitutional requirement for wiretap authorizations. This is evident from a review of R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, this court's decisions in R. v. Largie (2010), 101 O.R. (3d) 561, [2010] O.J. No. 3384, 2010 ONCA 548 (C.A.), leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 119 and R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561 (C.A.), leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 460, 2015 CanLII 1812, and the Court of Appeal of New Brunswick's detailed review of the law in R. v. Doiron, [2007] N.B.J. No. 189, 2007 NBCA 41, 315 N.B.R. (2d) 205 (C.A.), leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 413.

[43] The application judge indicated in his reasons that he was not going to rehearse the case law on the issue. For ease of reference, I will briefly do so. Nonetheless, I reach the same conclusion.

[44] In Garofoli, the Supreme Court considered the wiretap provisions of the Code and identified their constitutional requirements without including investigative necessity. At pp. 1443-44 S.C.R., Sopinka J., writing for the majority, identified the minimum constitutional requirements demanded by s. 8 as described in Hunter v. Southam Inc., supra, at p. 168 S.C.R.: "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search". He noted that in addition to the minimum constitutional requirements, the investigative necessity requirement had to be satisfied under what is now s. 186(1)(b). He then went on to say that the language of what is now s. 186(1)(a) of the Code was identical to the constitutional requirements described in Hunter. Put differently, the "best interests of the administration of justice" requirement in what is now s. 186(1)(a) imports the Hunter minimum constitutional requirements.

[45] These statements suggest that investigative necessity is not a constitutional requirement for wiretaps, a view espoused in Doiron. See, also, R. v. Y. (N.), [2008] O.J. No. 1432 (S.C.J.), at para. 16.

[46] In contrast, the appellant argues that the Supreme Court changed the law in R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65 and R. v. B. (S.A.), [2003] 2 S.C.R. 678, [2003] S.C.J. No. 61, 2003 SCC 60. In the former, LeBel J. stated, at para. 22:

An appropriate balance must be found between the need to safeguard privacy interests and the realities and difficulties of law enforcement. The investigative necessity requirement found in s. 186(1)(b) has proved to be a critical but delicate component of the legal framework set up to regulate wiretapping in order to strike this appropriate but often elusive balance between the interests of the State and those of its citizens.

[47] He went on to write, at para. 26, that the text of s. 186(1) represented a type of constitutional compromise and, in particular, "the investigative necessity requirement embodied in s. 186(1) [was] one of the safeguards that made it possible for [the Supreme Court] to uphold these parts of the Criminal Code on constitutional grounds".

[48] B. (S.A.) did not involve wiretaps but the DNA warrant provisions of the Code. Justice Arbour, writing for the court, rejected the appellant's argument that investigative necessity should be a constitutional requirement for DNA warrants and upheld the constitutionality of the DNA warrant provisions. In describing the appellant's argument, Arbour J. wrote, at para. 53: "This approach is analogous to the constitutional requirement applicable to wiretap authorizations (see R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 37)." She proceeded to distinguish DNA warrants from wiretaps: see B. (S.A.), at para. 54.

[49] The appellant argues that these two decisions establish that investigative necessity is a constitutional requirement for wiretaps.[^2] I do not agree.

[50] Both Araujo and B. (S.A.) have already been addressed by this court in Largie and Lucas. The latter two decisions involved the constitutionality of Code provisions that provided for judicial authorization to intercept private communications. The central issue in both appeals was whether s. 8 of the Charter required that the police demonstrate investigative necessity before being granted an authorization to intercept private communications. This court held in both Largie and Lucas that investigative necessity was not a constitutional requirement.

[51] In Largie, Watt J.A. considered the constitutionality of s. 184.2, the Code provision that governs one party consent wiretaps. The provision was attacked on the basis that it violated s. 8 of the Charter due to the absence of any investigative necessity requirement. He rejected the argument that Araujo had established investigative necessity as a minimum constitutional requirement for wiretaps stating, at para. 46:

Nowhere does the [Supreme] Court characterize investigative necessity as a constitutional requirement, or as anything other than a statutory pre-condition to the exercise of the discretion to grant a conventional authorization permitting state-conducted third party surveillance.

[52] He went on to reason that no appellate court had held either expressly or by necessary implication that investigative necessity was a constitutional requirement (at para. 51); s. 184.2 is permissive, not mandatory (at para. 55); a judge addressing an application must consider whether the search proposed is reasonable "in light of the myriad of factors at work in the specific case" (at para. 55); other appellate courts had upheld the validity of the Code's electronic surveillance provisions (at para. 57); and importing such a requirement would unduly restrict the availability of s. 184.2 (at para. 54). He concluded by rejecting the assertion that investigative necessity was a constitutional requirement for one party consent wiretaps.

[53] In Lucas, this court held that the conclusion on investigative necessity in Largie applied to wiretaps in general (at para. 95) and rejected the assertion that s. 186(1.1) was unconstitutional due to the absence of any investigative necessity requirement. Section 186(1.1) involves a wiretap authorization relating to enumerated criminal organization and terrorism offences. In Lucas, the appellants challenged the constitutionality of this section, arguing that investigative necessity is a minimum constitutional requirement for such a wiretap authorization. The trial judge (Nordheimer J., as he then was) had rejected that argument.

[54] This court upheld the trial judge's conclusion. The court reviewed the same cases as Watt J.A. had in Largie and took the same view of the Supreme Court's jurisprudence. Neither Araujo nor B. (S.A.) provided authority for the proposition that investigative necessity was a constitutional requirement: Lucas, at para. 88.

[55] The appellants in Lucas attempted to distinguish Largie on the basis that it involved participant intercepts, which are more targeted and therefore have a more limited impact on privacy. They argued that there was a different constitutional standard for third party intercepts given the greater potential intrusion on individual privacy. This court declined to read Largie so narrowly, holding that Watt J.A.'s reasoning did not turn on the differences between participant and third party intercepts: Lucas, at para. 95. Rather, even though Watt J.A. noted the differences between participant intercepts and third party intercepts (see Largie, at para. 56), he had affirmed that the minimum constitutional requirements for intercepts are as set out in s. 186(1)(a) of the Code.

[56] The court in Lucas also relied on Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50 (SCC), [1991] 3 S.C.R. 459, [1991] S.C.J. No. 88. In that case, the Supreme Court declined to find that investigative necessity was a constitutional requirement for the search of the premises of media organizations. Justice Cory held that the question of whether a search is reasonable depends on many factors and cannot be reduced to a list of conditional prerequisites. This court considered Cory J.'s approach to be the correct one, writing, at para. 100:

The potential intrusion of a person's privacy in any search, whether it is by electronic surveillance, a search of personal information in a computer or the search of a place or person, will vary depending on the particular circumstances. We agree with the general assertion by this court at para. 49 of Largie that [the best interests of the administration of justice requirement in] s. 186(1) (a) of the Criminal Code "coincides with the minimum constitutional requirement dictated by Hunter."

[57] Nonetheless, even though investigative necessity is not a constitutional requirement, the court in Lucas held that it would be relevant for the authorizing judge to consider in deciding whether the authorization was in the best interests of the administration of justice.

[58] In this case, the appellant urges this court to overturn or distinguish Lucas, arguing that it dealt with the constitutionality of wiretaps in the course of investigating organized crime offences, s. 186(1.1). However, I do not read Lucas as having such a limited scope.

[59] I also agree with the analysis in Largie and Lucas that neither Araujo nor B. (S.A.) changed the law by importing a constitutional investigative necessity requirement. Justice LeBel's comment in Araujo, relied upon by the appellant, was obiter. The issue in Araujo was the correct interpretation of s. 186(1); the court was tasked with considering the circumstances under which the police could satisfy the investigative necessity requirement: Araujo, at para. 1. While the court acknowledged that this inquiry would be informed by the competing values of enabling criminal investigations and protecting privacy rights, there was no issue in that case of the constitutionality of the wiretap provisions. Moreover, in making his comment, at para. 26, LeBel J. relied on Garofoli and R. v. Duarte (1990), 1990 CanLII 150 (SCC), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, neither of which stand for the proposition that investigative necessity is a constitutional requirement for third party intercepts. I do not accept that LeBel J. intended to change the law. Had he wished to depart from Garofoli, he would have done so explicitly.

[60] As for the appellant's reliance on B. (S.A.), it did not involve wiretaps and any commentary on investigative necessity was obiter, as noted by this court in Lucas. In addition, the passage cited by the appellant can easily be read as simply a recital of the appellant's position before the Supreme Court rather than a distillation of the law on investigative necessity. Again, in my view, this case cannot be said to have changed the law on constitutional requirements.

[61] In conclusion, based on the controlling and settled jurisprudence, investigative necessity is not a constitutional requirement for wiretap authorizations.

[62] In the case under appeal, Dambrot J. reasoned that, "[i] f investigative necessity is not a constitutional prerequisite to a wiretap authorization, perforce it is not a prerequisite to a production order for historic text messages": at para. 59.

[63] There is much force to this logic.

[64] Wiretaps are more intrusive of privacy interests than production orders for historical text messages, a reality recognized by Parliament when it made investigative necessity a statutory requirement in s. 186(1)(b) but did not include investigative necessity in s. 487.012 or its successor, s. 487.014. Wiretaps are sweeping in their reach and target future communications based on an investigative theory that conversations relevant to an offence will take place. With a wiretap, the words sought for capture do not exist at the time the authorization is granted. They may never exist. The wiretap may fail to disclose anything of relevance to any offence under investigation. By their nature, the subject-matter sought -- communications about an offence -- is speculative: R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 326 C.C.C. (3d) 280 (C.A.), at para. 93.

[65] In contrast, the scope of a production order for historical text messages may be focused, limited and less speculative than a broad wiretap authorization. In Jones, Côté J. explicitly drew a distinction between wiretaps that give police access to real-time information and production orders for previously stored records, noting that the latter do not trigger the same concerns: Jones, at para. 74.

[66] As the jurisprudence does not require that investigative necessity be a constitutional requirement for wiretaps, it follows that investigative necessity is not a constitutional requirement for production orders for historical text messages. Justice Dambrot considered this to be dispositive of the appellant's argument. I agree but there are other reasons to reject the appellant's contention, which I will now discuss.

(e) Request for a five-judge panel

[67] Before this appeal was scheduled, the appellant had requested a five-judge panel to hear it. His submission was that this court should overturn its decisions in Largie and Lucas, thus necessitating a five-judge panel. On April 24, 2020, Associate Chief Justice Hoy rejected the appellant's request.

[68] The appellant renews this request before us. However, there are compelling reasons not to depart from settled law and I too would reject the appellant's request for a five-judge panel.

[69] First, a production order is not without safeguards. As discussed, the statutory conditions must be met. In addition, the language of s. 487.012 was permissive in nature and the presiding justice had discretion to grant or refuse the requested production order even if the statutory conditions were met (the language of the current s. 487.014 is also permissive). The discretion must be exercised judicially and consideration must be given to the interest of "the individual to be free of intrusions of the state", the interest of the state "to intrude on the privacy of the individual for the purpose of law enforcement" (Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6, at p. 435 S.C.R.), and the impact of the order on the constitutionally protected rights of the target of the order and the public (Vice Media, at para. 28). Moreover, it was open to the presiding justice to impose terms on the production order: s. 487.012(4) (now s. 487.019).

[70] Second, as the Crown argues, an investigative necessity requirement for all seizures of historical text messages would unduly hamper the ability of law enforcement to investigate and prevent crime without a corresponding benefit to the legitimate privacy interests of Canadians. As mentioned, to obtain a production order, reasonable grounds to believe both that an offence has been or will be committed and that the record sought will afford evidence of the commission of the named offence are required. As the Crown observes, there may well be cases where the police receive information about specific communications that are central to the investigation of an offence. In cases involving these more targeted searches, it would be unreasonable to require the police to prove that

-- other investigative procedures have been tried and failed;

-- other investigative procedures are unlikely to succeed; or

-- the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

A fair balancing of the protection of privacy interests and the needs of law enforcement does not require the imposition of an investigative necessity pre-requisite.

[71] Third, an investigative necessity requirement would be difficult to reconcile with other Supreme Court jurisprudence. Supreme Court cases have recognized that historical text communications can be seized from phones and other devices with ordinary search warrants or sometimes relying on the warrantless power to search incident to arrest, all in the absence of any investigative necessity requirement. See R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8; R. v. Vu, [2013] 3 S.C.R. 657, [2013] S.C.J. No. 60, 2013 SCC 60; and R. v. Fearon (2014), 129 O.R. (3d) 479, [2014] 3 S.C.R. 621, [2014] S.C.J. No. 77, 2014 SCC 77.

[72] The Crown also argued that, in Jones, the Supreme Court had to grapple with the interpretation of "intercept" in Part VI of the Code. The appellant in that case argued that his s. 8 rights were breached when the police obtained a production order to obtain records of his historical text messages from Telus when they should have sought a wiretap authorization. At para. 8 of its decision, the majority framed the question before it as [follows]: "[D]id the Production Order provide lawful authority for seizing records of historical text messages located in the hands of a service provider?" Justice Côté concluded by saying 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)": Jones, at para. 9. The Crown argues that if investigative necessity is a constitutional requirement, this would mean that in answering the question before it, the Supreme Court put its stamp of judicial approval on a tool for obtaining historical text messages that is not Charter compliant. However, as noted in this court's decision in R. v. E. (L.), [2019] O.J. No. 6132, 2019 ONCA 961, 382 C.C.C. (3d) 202 (C.A.), leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 41, the constitutionality of a law is not always considered as part of the statutory interpretation analysis. In these circumstances, the Supreme Court's language in Jones on this point is not conclusive.

[73] Fourth, although not determinative, Parliament has not seen the need to enact any limitation on the ability of law enforcement to use what is now s. 487.014 of the Code to seek historical text messages. Amendments were made to provisions of the Code dealing with production orders as recently as 2014, which was after the Supreme Court's decision in R. v. TELUS Communications Co., [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16, 2013 SCC 16, dealing with the seizure of prospective text messages, and no investigative necessity requirement was incorporated into the provisions dealing with production orders or indeed interceptions with one party consent.

[74] Having said that, I recognize that privacy interests are seriously engaged by a production order for historical text messages. Text messages, while not universally utilized, are nonetheless a form of communication adopted by many. Senders and recipients have a reasonable expectation of privacy, accepting that the service provider may also have access to their communications. (Since April 2013, the service provider in this case, Telus, had stopped retaining the content of text messages.) That said, for the aforementioned reasons, a reasonable balance between the rights of individuals and the state is maintained by the regime governing production orders for historical text messages. I would not interfere with Dambrot J.'s s. 8 Charter ruling.

[75] In conclusion, I do not accept the appellant's contention that investigative necessity is a constitutional requirement for wiretaps. The controlling authorities suggest otherwise. Moreover, it ought not to be a requirement for production orders for historical text messages. I would therefore dismiss this ground of appeal.

(f) Arbitrariness

[76] The appellant's second ground of appeal has two parts. First, the appellant submits that the seizure of his text messages infringed s. 8 of the Charter because the distinction between historical and prospective text message searches is arbitrary. He argues that s. 487.012 is an unreasonable law, to the extent it authorizes the seizure of historical text messages, because in the absence of an investigative necessity requirement, there is an arbitrary distinction between the retrospective seizure of historical text messages and the prospective seizure of future text messages. He states that laws shall not create arbitrary distinctions under s. 7 of the Charter and due to s. 8's close connection to s. 7 of the Charter, a law that is arbitrary is also unreasonable under s. 8.

[77] The difficulty with this argument is that it is answered by the majority decision in Jones. As mentioned, Côté J. expressly distinguished the two types of messages, at paras. 73-74. Prospective authorization to intercept future messages engages a different mechanism, unique privacy concerns, speculation and surveillance that may continue over a prolonged period of time, and "real-time access to information". Historical searches do not share all of these characteristics: Jones, at para. 74. Justice Côté outlined principled distinctions in differentiating the two types of messages, not arbitrary ones.

[78] Second, the appellant submits that even if the distinction between prospective and retrospective seizures of text messages is not arbitrary in theory, it is in practice. This is because of the ease with which the requirements of Part VI governing prospective searches may be sidestepped based on timing. Put differently, the appellant argues that police are able to sidestep the requirements of Part VI of the Code by waiting until immediately after the text messages have been exchanged before seeking judicial authorization using a production order. In support of this submission, the appellant relies on Rowe J.'s concurring opinion in Jones and Cromwell J.'s dissent in TELUS Communications.

[79] There are two responses to this argument.

[80] First, in Jones, Côté J. clearly stated, at para. 80: "A production order should not be used to sidestep the more stringent Part VI authorization requirements." Sidestepping is impermissible. As the Crown submits, it does not follow from the fact that a search power may be used impermissibly or unlawfully that the lawful and permissible use of the power violates an individual's s. 8 Charter rights.

[81] Second, there is no evidence before the court about sidestepping, whether in this case or otherwise. As such, the issue does not arise on the facts and should not be adjudicated here.

[82] I would therefore dismiss the appellant's second ground of appeal based on arbitrariness.

Disposition

[83] For these reasons, I would admit the fresh evidence but dismiss the appeal.

Appeal dismissed.

APPENDIX

Criminal Code, R.S.C. 1985, c. C-46

Interception with consent

184.2(1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).

Application for authorization

(2) An application for an authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace officer or public officer or of any other peace officer or public officer, deposing to the following matters:

(a) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

(b) the particulars of the offence;

(c) the name of the person who has consented to the interception;

(d) the period for which the authorization is requested; and

(e) in the case of an application for an authorization where an authorization has previously been granted under this section or section 186, the particulars of the authorization.

Judge to be satisfied

(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that

(a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

(b) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.

Content and limitation of authorization

(4) An authorization given under this section shall

(a) state the offence in respect of which private communications may be intercepted;

(b) state the type of private communication that may be intercepted;

(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;

(d) contain the terms and conditions that the judge considers advisable in the public interest; and

(e) be valid for the period, not exceeding sixty days, set out therein.

Related warrant or order

(5) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.

Judge to be satisfied

186(1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Exception for criminal organizations and terrorism offences

(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to

(a) an offence under section 467.11, 467.111, 467.12 or 467.13;

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

Former s. 487.012 (from 2004-09-15 to 2015-03-08):

Production order

487.012(1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),

(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or

(b) to prepare a document based on documents or data already in existence and produce it.

Production to peace officer

(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given

(a) to a peace officer named in the order; or

(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.

Conditions for issuance of order

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that

(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;

(b) the documents or data will afford evidence respecting the commission of the offence; and

(c) the person who is subject to the order has possession or control of the documents or data.

Terms and conditions

(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.

Power to revoke, renew or vary order

(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.

Application

(6) Sections 489.1 and 490 apply, with any modifications that the circumstances require, in respect of documents or data produced under this section.

Probative force of copies

(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.

Return of copies

(8) Copies of documents produced under this section need not be returned.

Current s. 487.014 (current to 2020-06-28 and last amended on 2019-12-18):

General production order

487.014(1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the document or data is in the person's possession or control and will afford evidence respecting the commission of the offence.

[^1]: At the material time, the relevant production order provision was s. 487.012. For ease of reference, I will refer predominantly to s. 487.012 rather than s. 487.014. [^2]: There is some academic support for this proposition: see N.J. Whitling, "Wiretapping, Investigative Necessity, and the Charter" (2002), 46:1 Crim. L.Q. 89, which predates both Largie and Lucas, and Jared Craig, "Terrorism, Criminal Organizations, and Investigative Necessity for Wire-Taps" (2014), 61:2 Crim. L.Q. 176, which post-dates Largie but pre-dates Lucas.