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Police interception of text messages: The latest from the Supreme Court of Canada

Police interception of text messages: The latest from the Supreme Court of Canada
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By Ian Carter

“Text messaging is, in essence, an electronic conversation.”  

The Court deliberately did not deal with the issue of whether the seizure of “historical” text messages would constitute an “interception”

With those words, Justice Abella has altered the judicial landscape when it comes to how the police can gather text messages from a suspect’s service provider. In the landmark decision of R. v. TELUS Communications Co., the Supreme Court of Canada held that the police must apply for an authorization to intercept private communications (a wiretap) in order to obtain the prospective production of future text messages. Telus, the service provider in question, stores text messages on a computer server for a period of 30 days from the time they are sent. In this case, the police obtained a general warrant requiring Telus to provide the police with copies of any stored text messages sent or received by two Telus subscribers as they were entered into the database. A majority of Justices for the Court, stressing the high level of privacy inherent in a text message, found that a general warrant was not available and that the investigators were required to undergo the more rigorous process in obtaining a wiretap authorization.

The Court deliberately did not deal with the issue of whether the seizure of “historical” text messages would constitute an “interception”, and therefore require an authorization under Part VI of the Criminal Code, if it were authorized after the messages were stored. Given the proliferation of texting and its value to police investigations, it may not be that long before the issue comes back before the Court.

Ian Carter is a partner at Bayne Sellar Boxall and an executive member of the Canadian Bar Association National Criminal Justice Section.

 

Voir Dire, June 2013 - CBA National Criminal Law Section Newsletter

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