Law Times

Law timeS • September 24, 2012 Do police need wiretap authority to obtain texts? NEWS BY SHANNON KARI For Law Times the Criminal Code should apply when the state is seeking to obtain text messages as part of a criminal investigation. A hearing scheduled for Oct. T he Supreme Court of Canada will determine for the first time how the privacy provisions of because the dictionary definition of there must be a real-time capture of communication. The Cana- dian Oxford dictionary defines intercept as to "seize, catch or stop (a person, message, vehicle, ball, puck, etc.) from going to one place to another, the word intercept suggests 15 will determine if the billions of text messages sent by Canadian wireless customers each year are private communications and if a search warrant or production or- der is necessary or, alternatively, whether police must obtain a more rigorous intercept authori- zation under Part VI of the code. As well, the case seeks guidance on whether there' between texts already sent and stored and a prospective request for a communications provider to turn over messages not yet sent by one of its customers. The case of R. v. Telus Com- s a difference munications Co. could have sig- nificant implications for service providers and the criminal courts as police are increasingly seeking to obtain the texts, e-mails, and computer chat records of accused people in hopes of finding self- incriminating statements. Telus, which obtained leave di- rectly from the Ontario Superior Court, is arguing that any seizure of private text messages from a service provider requires a Part VI wiretap authorization. "The intrusion on a person' identical whether the police sur- reptitiously listen in to your con- versations while they are occur- ring or surreptitiously read copies of your private communications that are obtained directly from the means required for delivery of the communication," argue Telus lawyers Scott Hutchison and Bri- an Gover of Stockwoods LLP in written arguments filed with the Supreme Court. In response, federal law- s privacy is code date back to 1974, a time when "telecommunications by anything besides voice line was ex- ceedingly rare, The wiretap sections in the " noted Sproat in Telus. As a result, the courts must apply a "purposive" approach to inter- preting what intercept means un- der new technologies. Given that Telus automatically makes a copy of all texts, "the state should not be permitted to take advantage of the processes of a common carrier of a communication to effect that interception and avoid the appli- cation of Part VI by maintaining that they are only requiring pro- duction of 'stored' copies of such communications," wrote Hutchi- son and Gover. " according to Telus. Association, which has intervener status in the case, supports the position adopted by Telus. It' statutory definition of intercept that should apply, says Wendy Matheson of Torys LLP. She' s the ing for the CCLA in the Telus case. The code defines intercept as s act- "to listen to, record or acquire a communication," something that doesn't necessarily require it to be contemporaneous, wrote Mathe- son in her submission. " texts from the communications conduit, i.e. the telecommunica- tions service provider, is an inter- ception," she stated. The federal Crown, supported Acquiring Acquiring text messages from the service provider is an interception, says Wendy Matheson. by the Ontario Ministry of the Attorney General, warns of the impact on law enforcement if the court accepts Telus' position. "The provincial superior courts would be inundated with thousands of wiretap applications each year, simply to gather stored infor- mation," wrote Michaelson and Mathews. tation of privacy does not man- date the application of the wire- tapping regime to every seizure of private communications," the Crown argues. In its appeal, Telus argues that a "The presence of a high expec- warrant, rather than a Part VI au- thorization, is all that' when police seize a mobile phone s necessary The Canadian Civil Liberties or a computer directly from an individual because the acquisi- tion isn't "surreptitiously done" as it is when a service provider has to turn over the communications. The issue of what police can do when seizing a mobile phone from someone they've arrested was squarely before the Ontario Court of Appeal on Sept. 7. The court has reserved its decision in R. v. Fearon. The provincial Crown argued in that case that the court should permit a cursory search without a warrant. In one of the few Ontario Su- perior Court cases to date to rule on these issues, Justice Ian Nor- dheimer concluded earlier year that a standard warrant was all that was necessary to obtain stored text messages from an in- dividual. Part VI would apply if police seized the messages during transmission, said Nordheimer in R. v. S.M. The judge added that a warrant would generally be necessary to search a phone seized at the time of an arrest. LT this PAGE 5 Don't miss out on your chance to reach 150,000 up-market GTA households Produced by yers Croſt Michaelson and Lisa Mathews characterize the Telus arguments as "straining the lan- guage of the statute to encompass the production of a stored record of a communication from the 'means of communication'" in their written submissions. Telus is appealing a March 2011 decision by Ontario Supe- rior Court Justice John Sproat. He upheld a general warrant issued by fellow Superior Court Justice Robert Thompson that ordered Telus to turn over all text commu- nications by two of the company' customers over an upcoming two- week period to police in Owen Sound, Ont. As a result, Telus had to e-mail s police a copy of all of the previ- ous day' by 2 p.m. each day. The company legally stores a copy of all of its customers' texts for 30 days for troubleshooting purposes, the court heard. Sproat concluded that a wire- tap authorization wasn't necessary s texts of the customers Untitled-1 1 www.lawtimesnews.com 12-09-17 9:38 AM LEGAL RESOURCE GUIDE 2 0 1 2 Serving the Greater Toronto Area WHEN LIFE THROWS YOU A CURVEBALL, THIS GUIDE WILL HELP MAKE IT A BIT EASIER TO GET THROUGH YOUR GAL ISSUES A

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