Court of Appeal rules seizure of past text messages constitutional

The Court of Appeal recently dealt with the question of whether the police, when seizing a person’s past text messages, should follow the same process required when setting up a wiretap.

As communication habits and standards change, privacy protections enshrined in the law should adjust to keep up with society, says Gerald Chan, a litigator and partner at Stockwoods LLP.

“This case does raise a real question about whether the distinctions that have traditionally made sense to us when it comes to privacy continue to make sense in the digital world where people text more than they talk,” says Chan.

In R. v. July, Chan’s client Guyvin July challenged the constitutionality of the police seizure of text messages, which led to his conviction for firearms trafficking. July argued the law – s. 487.014  of the Criminal Code – by which police obtain production orders to seize text messages, is unreasonable and counter to his s. 8 Charter protection against unlawful search and seizure. The Court rejected July’s argument and found s. 487.014 constitutional.

The case stems from the investigation into a convicted serial killer. In 2015, Mark Moore was found guilty on four counts of first-degree murder for a string of mostly random killings in 2010. In 2011, the police convened a task force to investigate the murders. They analysed texts on the phone of one of Moore’s victims, finding messages sent to Moore the day the victim died. The police then obtained a production order for Moore’s telephone records, through which they became acquainted with July. The police found Moore had texted him about purchasing firearm ammunition.

The police got authorization to intercept July’s cell-phone communications and tracked him arranging the sale of a gun to a man named Deshawn Herbert. July was arrested and indicted on four counts of firearms trafficking, in Nov. 2012.

The process by which police obtain authorization for wiretaps is under s. 186 of the Code. The police are required to show the authorizing judge that granting such an order would be in the best interests of the administration of justice, that other investigative techniques have been tried and failed and others are unlikely to succeed. The latter two requirements are known as the investigative necessity requirement.

July submitted to the court that in R. v. TELUS Communications Co., the Supreme Court of Canada had decided that police needed to show investigative necessity when getting an order to intercept future text messages, just as with a telephone wiretap. July argued that seizing private text messages carries the same privacy intrusion whether they are text messages delivered in the future or the past.

“Why should the police have to show anything less than investigative necessity when they are compelling the production of historical text messages as opposed to future text messages when the text messages could be exactly the same?” says Chan.

A “key hurdle” to July’s argument was that the Supreme Court rejected it in R. v. Jones, as a matter of statutory interpretation, Chan says. In that case, the Court found the Criminal Code said investigative necessity is only required when seeking access to future, but not historical, text messages.

But in his concurring opinion in Jones, Justice Malcolm Rowe remarked on the “anomaly” that police can skate around the requirement to prove investigative necessity by waiting until the instant after the text message is sent to get the production order.

July had to argue that, since investigative necessity was not a statutory requirement, it was a constitutional requirement. Chan says the Supreme Court has stated as much – but only in obiter dicta. There were also several Ontario Court of Appeal decisions that had ruled investigative necessity was not a constitutional requirement, he says.

“We were trying to get the court to put more weight on the obiter dicta of the Supreme Court of Canada. But ultimately, they decided to stick to their prior decisions on that issue,” says Chan.