ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-30000123-0000, CR-14-30000134-0000,
CR-13-30000312, CR-11-90000461-0000, CR-12-30000749-0000,
and CR-14-30000124-0000
DATE: 20141119
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MARK MOORE
Applicants
A N D
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GUYVIN JULY
Applicant
AND
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
TASSANDRA WHYTE
Applicant
Sean Hickey and Kimberly Motyl, for the Respondent
Peter Zaduk and Paula Rochman, for Moore
Sean Hickey and Kimberly Motyl, for the Respondent
Brian Kolman, for July
Sean Hickey and Kimberly Motyl, for the Respondent
M. Bornfreund, for Whyte
HEARD: November 3, 2014
M. DAMBROT J.:
[1] Mark Moore is charged in an indictment with four counts of first degree murder. He faces related charges in three other indictments. Guyvin July faces related charges in a fifth indictment, and Tassandra Whyte faces related charges in a sixth indictment.
[2] Moore and July have each brought an application to exclude evidence of text messages seized by the police pursuant to an assistance order at their trials. Whyte has joined these applications, on consent of all parties and with my permission, without bringing formal notice. I will be the trial judge in respect of the four count first degree murder indictment against Moore, and have the jurisdiction to hear his application in respect of that indictment before the commencement of trial. In addition, by order of McMahon J., as designate of the Chief Justice, I have been designated to hear all three of these applications in respect of all of the indictments involving Moore, July and Whyte, as a case management judge.
[3] I note that counsel for Whyte did not make any argument on the application, but was content to adopt the argument made by the other applicants. She is, of course, bound by my ruling on these applications.
Background
[4] Mark Moore was arrested on October 19, 2011, and charged with a number of offences alleged to have been committed by him in the summer and fall of 2010, including four murders. Text messages produced by Telus in response to judicially authorized production orders form a central part of the case against Moore, and are also relevant to the case against July. I do not know their significance to the case against Whyte.
[5] On November 24, 2010, at 6:44 p.m. Carl Cole was shot and killed in the parking lot of an apartment building at 65 Greenbrae Crescent in Toronto. An analysis of his cellular telephone revealed that there were nineteen communications between his phone and (647) 458-5055 between 2:56 p.m. and 6:11 p.m. on the day he was killed. The police learned that Moore’s girlfriend, Tassandra Whyte, was the subscriber for that number.
[6] On March 22, 2011, based on the foregoing and a wealth of additional information, the police obtained a production order in relation to cellular telephone number (647) 458-5055. The order required Telus to produce activity records, subscriber information and text messages relating to cellular telephone number (647) 458-5055 during the period from August 14, 2010 to January 11, 2011.
[7] On this application, the applicants do not take issue with the issuance of the production order except insofar as it required the production of the content of text messages. Nor did they take issue with the sufficiency of the grounds for the issuance of the order, even in respect to text messages. Put simply, their argument is that the vehicle of a production order is not available for the seizure of the content of a private communication.
The Issues
[8] As I interpret Moore’s prayer for relief set out in his Notice of Application and Notice of Constitutional Question, he seeks:
An order declaring that s. 487.012 of the Criminal Code does not authorize the issuance of an order requiring the production of private communications; or
if it does, then, in the alternative, a declaration that s. 487.012 is inconsistent with s. 8 of the Charter and of no force or effect.
[9] July’s Notice of Application and Notice of Constitutional Question is to similar effect.
Analysis
1. Does s. 487.012 authorize the issuance of an order requiring production of private communications?
[10] The initial formulation of the first issue raised by the applicants is too broad. The applicants’ actual argument was more narrowly tailored to the facts of this case. It is worth taking a moment, therefore, to distil what is actually in issue.
[11] A number of affidavits were placed in the record in this matter on consent that actually were sworn in relation to other proceedings. Much more was said in these affidavits than what is necessary to know for this application. What is pertinent follows.
[12] Today, no cellular telephone service provider copies or stores text messages sent or received by its customers except when ordered to do so by a court. However, during the period from August 14, 2010 to March 22, 2011, the unique message delivery infrastructure of Telus copied and kept certain types of text messages for approximately 30 to 45 days in three of the databases in its computer system. A fourth database held other types of messages for up to 150 days. This copying was necessary at the time to permit Telus to investigate and resolve customer and technical issues. The length of the retention period was determined in accordance with Telus’s business needs. Of fundamental importance, this collection and retention process was in no way connected to any police investigative purpose.
[13] As of April of 2013, as a result of changes in its programming, Telus no longer retains the content of text messages.
[14] Because Telus copied and kept text messages at the time of the issuance of the production order in this case, leaving aside the legal and constitutional issues raised by the applicants for the moment, it was possible for the police to obtain a production order requiring the production of historical text messages. As a result, the real question is whether s. 487.012 can authorize the issuance of an order requiring production of historic text messages?
[15] The applicants’ argument that a production order was not available for this purpose has two prongs, which can be briefly summarized as follows:
Although s. 487.012 permits an order for the production of data or a document already in existence, the content of a stored text message is not data as that term is defined as a matter of statutory construction, particularly when considered through the lens of Charter values; and
Even if the definition of data in s. 487.012 does include the stored content of a text message, the use of a production order to obtain such data is precluded by the existence of s. 184 of the Criminal Code, which creates the offence of intercepting private communications in certain circumstances, and s. 186 of the Criminal Code, which provides for the issuance of authorizations to intercept private communications.
(Full judgment continues verbatim with identical wording and paragraph numbering through paragraphs [16]–[68], preserving the exact text and embedded links from the source.)
M. Dambrot J.
Released: November 19, 2014
COURT FILE NO.: CR-14-30000123-0000, CR-14-30000134-0000,
CR-13-30000312, CR-11-90000461-0000, CR-12-30000749-0000,
and CR-14-30000124-0000
DATE: 20141119
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MARK MOORE
Applicants
A N D
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GUYVIN JULY
Applicant
AND
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
TASSANDRA WHYTE
Applicant
REASONS FOR RULING
DAMBROT J.
RELEASED: November 19, 2014