Two Telus subscribers in Owen Sound, Ont. appeared to be sending more than the usual ‘LOL’ or even ‘LMFAO’ kind of text messages. On the strength of a general warrant under s 487.01 of the Criminal Code, the local police asked Telus to produce all texts sent or received by the two individuals over the next two weeks, together with related subscriber information. Unlike most providers, Telus makes copies of texts that go across its network and stores them for a brief period of time, hitherto something probably not known to the teenagers, unfaithful spouses, drug dealers and prostitutes who rely on the fleeting and apparently untraceable nature of texting. The company sought to quash the warrant, arguing that because another, more specific mechanism exists under the Code for intercepting private communications, the cops needed to follow that more exacting procedure. The issue has now been decided by the Supreme Court of Canada: TELUS Communications Co v The Queen, 2013 SCC 16.
Abella J (LBel and Fish JJ concurring) reckoned that using the general warrant provision was really just a way to duck having to go through the hoops of a wiretap authorisation, which the police would have to do to obtain texts prospectively from a telco that did not store text traffic like Telus. (Whether a general warrant might work for past texts was a question for another time.) A general warrant is available only where there is no other statutory procedure for obtaining the evidence at stake. Part VI of the Code offers such a procedure, including requirements for notifying the subject of the interception and a time-limit on the validity of the search. Text messages are sent with the expectation of privacy, and like other private communications should not be subject to the broad power of a general warrant. It was manifestly unfair to subject Telus subscribers to a less rigorous investigative standard than customers of other providers. Justices Moldaver and Karakatsanis agreed that the general warrant was invalid, but on narrower grounds: in their view it was unnecessary to consider whether the police were seeking to ‘intercept’ a communication for the purposes of Part VI, which Justice Abella had focused on; rather, the proposed investigation, if not perhaps actually a wiretap, was ‘substantively equivalent’ to one. The general warrant was invalid because the police had failed to satisfy the ‘no other provision’ requirement — again because they were essentially trying to avoid the rigours of the Part VI procedure. Cromwell J and McLachlin CJC dissented, on the grounds that the police were not proposing either to intercept private communications or do what was ‘substantively equivalent’. They were seeking to obtain disclosure of texts already (lawfully) intercepted by Telus, which meant that a wiretapping authorisation was not necessary. A general warrant was not a way to get around the Part VI requirements, but instead a convenient and cost-effective way to conduct a criminal investigation.
The division in the Supreme Court is interesting, as it reflects the challenges judges face in adapting the law to new technologies and the various uses to which we put them, for good or ill. This is something we have seen in R v Cole, 2012 SCC 53, where a teacher had a legitimate (if diminished) expectation of privacy in the school-owned laptop on which he stored child porn; and in R v Fearon, 2013 ONCA 106, where a warrantless search of a mobile phone with no password protection was upheld as a valid incident of police powers of arrest.