Unlike most telecommunications service providers, TELUS temporarily stores electronic copies of text messages sent and received by its customers. In 2010, the Owen Sound Police Service obtained a “general warrant” under Part XV of the Criminal Code requiring TELUS to disclose copies of any text messages sent or received by two of TELUS’ customers throughout a two-week period in the immediate future.
A general warrant is only available if authorization for a method of investigation is not available under another, more specific, provision of the Criminal Code or another federal statute. TELUS applied to quash the general warrant on the basis that it purported to authorize the interception of private communications, for which a “wiretap” authorization must be obtained under Part IV of the Criminal Code.
In R. v. TELUS Communications Co.1, a majority of the Supreme Court of Canada agreed with TELUS that the general warrant was invalid. According to the majority, the text message communication process included TELUS’ temporary storage of messages in its computer database: “The use of the word ‘intercept’ implies that the private communication is acquired in the course of the communication process”, which “encompasses all activities of the service provider which are required for, or incidental to, the provision of the communications service”.
The majority also emphasized the importance of ensuring that “intercept” is interpreted in a manner that keeps pace with technological developments:
“The reality of modern communication technologies is that electronic private communications, such as text messages, are often simultaneously in transit and in some form of computer storage by the service provider. As a result, the same private communication exists in more than one place and may therefore be acquired by the state from the transmission stream and from computer storage. In other words, the same private communication may be ‘intercepted’ by police more than once from different sources.
…Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown concedes that a Part VI authorization would be required. The level of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or a copy that is in storage by a service provider as part of the communications process. Parliament drafted Part VI broadly to ensure that private communications were protected across a number of technological platforms…
The communication process used by a third-party service provider should not defeat Parliament’s intended protection for private communications.”
In a dissenting decision, a minority of the Court distinguished between interceptions and the disclosure of previously intercepted messages. The minority would have upheld the general warrant on the basis that it was TELUS that “intercepted” the text messages (lawfully, in accordance with a statutory exemption) when it copied them to its database, and that the general warrant did not authorize interceptions, but rather simply required TELUS to disclose certain messages that TELUS had previously intercepted.
The minority therefore expressed concern that the majority’s broad interpretation of “intercept” could result in the more stringent “wiretap” requirements being applied to the search and seizure of personal communications, such as email messages and stored copies of Internet chats, stored on computers. According to the minority, this “would run counter to a line of cases in which Canadian courts have found that search warrants are sufficient to allow police to access documents and data stored on a computer”.
It might be argued that the majority’s decision avoids the concern expressed by the minority, as it appears that the “wiretap” requirements are triggered only when the police seek prospective access to future text messages – and when those future messages are stored “as part of the communications process”.
What is perhaps most clear from the R. v. TELUS Communications Co. case, however, is that the ongoing evolution of technology will continue to present difficult legal and interpretive challenges for the legislatures, the courts and the police, as well as for businesses and individuals.