BULLETIN: Text Messages are “Private Communications” in R v Telus Communications Co.

The Supreme Court of Canada (the “SCC”) released their decision in R v Telus Communications Co., 2013 SCC 16 on March 27, 2013. The case was previously discussed here.

In this case, the police wanted the production of text messages stored in the computer databases of Telus for a police investigation under a general warrant. Telus argued that daily production of text messages from a computer database constitutes an “interception of private communications” and therefore requires a wiretap authorization, not a general warrant, under Part VI of the Criminal Code (the “Code”). The Crown argued that the retrieval of messages from a computer database does not constitute an “interception” because the messages are not being transmitted – they are being stored in Telus’ database.

The SCC allowed the appeal in favour of Telus and quashed the general warrant order and the related assistance order.

Writing for the majority, Justice Abella said that the interpretation of “interception of private communications” depends on what the Code aims to protect with “private communications” and should not be dictated by how the technology works:

“The only practical difference between text messaging and the traditional voice communications is the transmission process. This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.”

Justice Moldaver and Justice Karakatsanis concurred in part and with the result to quash the general warrant, but based their reasons on the failure of the Crown to establish the necessary prerequisite to obtain a general warrant under the Code. Section 487.01(1)(c) requires that there is “no other provision” that would permit the police to conduct their investigation in the way they seek, except under a general warrant. However, in this case, the police could have sought a wiretap authorization under Part VI or a search warrant or production order and achieve substantially the same results.

The dissent of Justice Cromwell and Chief Justice McLachlin would have upheld the general warrant order because it was not “intercepting” private communications – it was simply Telus “disclosing” copies of communications:

“The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes…In my view, it is inconsistent with the fundamental distinction made by the legislation to conclude that the police were intercepting private communications when Telus provided them with copies of previously intercepted and stored text messages.”

The SCC decision in R v Telus Communications Co. confirms that text messages will be protected by the same privacy concerns as voice conversations.