ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-30000235-0000
DATE: 20120621

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Antriksh Singh & Theepan Thivviyananthan Applicants

Donna Kellway and Michal Sokolski , for the Crown

Jennifer Myers and Peter Zaduk , for Mr. Singh Jack Pinkofsky for Mr. Thivviyananthan,

HEARD: June 4 and 5, 2012

BENOTTO, J.

Decision on the Admissibility of the Text Messages

[ 1 ] Text messages are quickly becoming one of the preferred forms of everyday communication. They are short, immediate, do not intrude upon the recipient as may a phone call and can be sent anywhere at any time. Canadians send thousands of text messages every second.

[ 2 ] The sender of a text message creates a record of the communication which, in this case was stored in the data base of the service provider. Mr. Singh brought an application for an order excluding from evidence the text messages seized pursuant to a production order from his service provider TELUS. Counsel submits that a Part VI authorization to intercept private communications should have been obtained. Since it was not, it is argued that Mr. Singh’s rights under section 8 of the Charter of Rights and Freedoms were violated. Counsel for Mr. Thivviyananthan adopted the submissions of counsel for Mr. Singh.

Facts of the Case

[ 3 ] Mr. Singh and Mr. Thivviyananthan are charged with first degree murder in connection with the stabbing death of Mr. Indrakanthan. The events took place on July 20, 2009. A telephone located in the car that was seen leaving the scene had the number (416) 835-5982. It is agreed that the phone number is that of the accused, Mr. Singh and that he is subject to a contract with TELUS in connection with that number.

[ 4 ] The privacy policy of TELUS which is part of the contract provides that:

TELUS may disclose personal information without knowledge or consent…to comply with a subpoena, warrant or other court order…

[ 5 ] TELUS keeps copies of text messages on its database for approximately 150 days, sometimes more. It keeps them for business purposes, including troubleshooting, testing, responding to customer issues, billing, quality control and SPAM prevention.

[ 6 ] A production order was obtained on August 7, 2009 pursuant to section 487.012 of the Criminal Code . It related to the records held by TELUS for phone number (416) 835-5982 for the period July 1-29, 2009. The text messages were produced by TELUS.

[ 7 ] The information to obtain was sworn by a Detective and granted by a Justice of the Peace. No issue was taken on this application concerning the validity of the production order.

Applicant’s Position

[ 8 ] The applicant argues that there is a reasonable expectation of privacy in text messages and thus Section 8 of the Charter is engaged. The applicant submits that the tools available to the police to search and seize information have different levels of intrusiveness that correspond to the expectation of privacy in the information. As the level of intrusiveness and the privacy interest increase, so does the level of judicial oversight required. A production order, which was obtained here from a justice of the peace was not sufficient. The seizure should have been subject to the greater level of scrutiny and requirements of a wiretap authorization.

[ 9 ] The appropriate vehicle for seizure of these text messages is not a production order. A production order is not a stringent enough vehicle to be utilized where privacy issues are at stake. The approval of a Superior Court Judge with prior approval of the Attorney General and with specific notice and reporting protocol is the only way that rights under section 8 can be protected. An authorization to intercept private communication under section 186 provides the highest standard required to protect the privacy interests of the accused. The authorization to intercept under Part VI of the Criminal Code is therefore the appropriate vehicle.

[ 10 ] In addition, the communication is a “private communication” under section 183 of the Criminal Code . Part VI clearly applies because “intercept” has an expanded meaning. Under the definitions section, “intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.

Crown’s Position

[ 11 ] The Crown acknowledges that there is an expectation of privacy with respect to text messages and thus section 8 is engaged. However, the text messages are not “private communications” within the meaning of Part VI. This is because the definition of private communication must be read in the context of the entire section which is restricted to communications which are intercepted.

[ 12 ] Even if they are private communications, it is argued that they are not subject to the requirement of Part VI because they are not intercepted. They are data, in the possession of a third party.

Analysis

[ 13 ] Section 183 of the Criminal Code defines private communications as follows:

…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 and 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.

[ 14 ] This definition is not limited to intercepted communications; it merely defines a private communication for purposes of the section. A text message falls within this definition. In R. v. Telus Communications 2011 ONSC 1143 and in R. v. S.M. 2012 ONSC 2949 Justices Sproat and Nordheimer respectively have held likewise.

[ 15 ] That text messages are included within the definition in section 183 does not mean that their seizure from a third party is automatically subject to the requirement of Part VI. Part VI must be read in its entirety. It relates to contemporaneous surveillance, not to the acquisition of data after the fact.

[ 16 ] The word “acquire” is contained in the definition of “intercept.” However, this word cannot expand and distort the meaning of “intercept” beyond the scope clearly intended by Part VI. The offence created when there is an interception without authorization requires (1) an interception (2) of a private communication (3) with a prohibited device. The conduct which the section seeks to regulate is the clandestine surveillance of a communication while it is in progress.

[ 17 ] The contemporaneous nature of the acquisition has been considered in a number of cases. In R. v. Finlay (1985) 1985 117 (ON CA) , 23 C.C.C. (3d) 48 (C.A.) Martin J. A. said:

…an authorization to intercept private conversations authorizes the interception of conversations which have not yet taken place. (Emphasis added)

[ 18 ] In R. v. McQueen 1975 1373 (AB CA) , [1975] 25 C.C.C. (2d) 262, McDermid J.A. speaking for the Alberta Court of Appeal said at page 265:

…the word intercept suggests that there must be an interference between the place of origination and the place of destination of the communication.

[ 19 ] In R. v. Giles (2007) BCSC 1147, Justice MacKenzie of the British Columbia Supreme Court considered this issue in connection with emails found on a Blackberry memory chip. The accused argued that the police should have obtained a wiretap authorization to extract them. Justice MacKenzie disagreed. She found that the retrieval did not amount to an interception within the meaning of Part VI and referred to the difference between intercepting messages in process and searching messages that have already arrived at their destination. She too considered the definition of intercept which includes the word “acquire:” She found the argument illogical. At paragraph 37:

The Concise Oxford English Dictionary, …defines “intercept, when used as a verb as follows: “obstruct and prevent from continuing to a destination.”…Based on this definition and on common experience, I am satisfied that the word in its ordinary sense connotes something occurring while something passes from one point to another.

[ 20 ] After referring to McQueen , Justice MacKenzie added at paragraph 38:

The word “intercept” necessarily implies contemporaneity with the communication itself. Other words, such as “obtain” or “acquire,” do not connote such contemporaneity. Parliament clearly could have used either of these words alone if the temporal component of the intercept was not important; indeed, “acquire” is itself used in the statutory definition of “intercept”. This use helps to shade the interpretation of “intercept”, but it does not mean that “acquire” should be substituted for “intercept.”

[ 21 ] In R. v. Telus Communications 2011 ONSC 1143 , Justice Sproat considered a general warrant as opposed to a production order with respect to text messages. He stated at paragraph 43 that the word “intercept”… “requires a real time capture of otherwise transient communications.”

[ 22 ] Most recently, the issue of whether text messages were within the scope of Part VI of the Criminal Code was considered in R. v. S.M. 2012 ONSC 2949 . Justice Nordheimer found they were not. He referred to the requirement that the interception be contemporaneous to the communication, “not a later seizure of the same communication.”

[ 23 ] Defence counsel argued that the communication here deserves the highest level of protection, in part because the expectation of privacy is at the highest. However, anyone who has sent or received a text knows that the text can, with the touch of a finger, be instantaneously copied or forwarded without the sender’s knowledge. The recipient of the forwarded message can do likewise.

[ 24 ] I do not suggest that the risk that the intended recipient will forward the text to third parties is equivalent to the risk that the state will conduct surveillance. This amounts to the “risk analysis” which was rejected by the Supreme Court of Canada. It is mentioned in part to respond to the applicant’s submission on the expectation of privacy, and in part to refer to the jurisprudence with respect to Part VI which demonstrates that the law was directed towards regulating clandestine surveillance by the state.

[ 25 ] The analysis of the Supreme Court of Canada in R. v. Duarte (1990) 1990 5392 (NS CA) , 53 C.C.C. (3d) 97 makes multiple references to “surreptitious electronic surveillance.” This imports the concept of observation while an event is in progress. In Duarte :

…the regulation of electronic surveillance protects us from…not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in it unfettered discretion to record and transmit our words. (pg.11)

…a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has …[obtained a Part VI authorization] (pg. 12)

I am unable to see any similarity between the risk that someone will listen to one’s word with the integration or repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. (pg. 16) (Emphasis added.)

[ 26 ] In R. v. Wong 1990 56 (SCC) , [1990] 60 C.C.C. 460, the Supreme Court of Canada considered the surreptitious video taken of the accused while he was in a hotel room. The Court emphasized the distinction between this risk analysis and the expectation of privacy:

I do not wish to be taken as adopting the “risk analysis” which this court rejected in Duarte, supra. I am not equating the risk that strangers will be in the hotel room with the risk that the police will be electronically recording the activity in the hotel room. The issue is not so much concerned with risk as it is with reasonable expectations. (p. 466)

R. v. Duarte was predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words a the sole discretion of the state. (p.479)

[ 27 ] Inherent in these cases is the risk to privacy caused by the simultaneous, clandestine recording by the state. That is not what has occurred here. Here, it was the accused who recorded his communications. The communications then formed part of the data base of a service provider as part of its business record. The state did nothing on a clandestine basis. There was no surreptitious surveillance. There was no surveillance. There was no interception. The state did not, within the meaning of Part VI intercept the communication.

[ 28 ] I am satisfied that Part VI does not apply.

[ 29 ] That is not to say that safeguards against privacy do not exist. Section 487.012(1) provides:

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 document or data already in existence and produce it. (Emphasis added)

[ 30 ] Before a production order is granted, the justice or judge must be satisfied that there are reasonable grounds to believe that an offence has been committed, that the documents or data will afford evidence respecting the commission of the offence and that the person who is subject to the order has possession or control of the documents or data. Conditions and terms may attach to the order.

[ 31 ] The applicant argues that section 487 should not be used in this context. Counsel refers to Bill C-46 which includes the following commentary:

According to the Minister of Justice, Bill C-46…has been put forward as part of Canada’s response to the series of corporate scandals in the United States that have adversely affected investor confidence in capital markets. (pg 9)

[ 32 ] However, elsewhere in the Bill is the following:

[This section] will allow investigators to obtain “production orders” to compel persons not under investigation (third parties) to produce…data…relevant to the commission of an alleged offence under any federal law. (Emphasis added)

[ 33 ] The legislature did not limit production orders to corporate crime.

[ 34 ] Section 487 is the vehicle to obtain this data. That is how it was obtained. It was not necessary to obtain a wiretap authorization and thus, the section 8 rights of the accused were not violated.

[ 35 ] The application is dismissed.

Benotto, J.

Released: June 21, 2012

COURT FILE NO.: CR-11-30000235-0000
DATE: 20120621

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – Antriksh Singh & Theepan Thivviyananthan Applicants

HEARD: June 5, 2012

REASONS FOR JUDGMENT

Released: June 21, 2012