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Department
History
Course
HIST 1150
Professor
Tim Mau
Semester
Fall

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Page 1 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 R. v. Telus Communications Co. Telus Communications Company, Appellant and Her Majesty The Queen, Respondent and Attorney General of Ontario, Canadian Civil Liberties Association and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Interveners Supreme Court of Canada McLachlin C.J.C, LeBel, Fish, Abella, Cromwell, Moldaver, Karakatsanis JJ. Heard: October 15, 2012 Judgment: March 27, 2013[FN*] Docket: 34252 © Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Proceedings: reversing R. v. Telus Communications Co. (2011), 105 O.R. (3d) 411, 2011 CarswellOnt 1331, 2011 ONSC 1143, Sproat J. (Ont. S.C.J.) Counsel: Scott C. Hutchison, Michael Sobkin, Fredrick Schumann, for Appellant Croft Michaelson, Lisa Matthews, for Respondent Michal Fairburn, for Intervener, Attorney General of Ontario Wendy Matheson, Rebecca Wise, for Intervener, Canadian Civil Liberties Association Tamir Israel (written), for Intervener, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic Subject: Criminal; Constitutional Criminal law --- Pre-trial procedure — Search with warrant — General principles Telecommunications company T Co. provided mobile phone services that included text messaging services — Text messages sent from one mobile phone to another were routed through T Co.'s network — Copies of all text messages were routinely stored on T Co.'s network for at least 30 days for troubleshooting purposes — Police successfully applied for general warrant and assistance order (GWAO) requiring T Co. to provide copies of all messages sent and received by two accused on prospective basis, as well as subscriber information for each sender and recipient — T Co.'s application for order quashing GWAO was dismissed — Application judge © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 2 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 concluded that wiretap authorization was not available, since text messages were not real-time communications subject to interception — T Co. appealed — Appeal allowed — GWAO was quashed — General warrant power in s. 487.01 of Criminal Code could not authorize prospective production of future text messages from service provider's computer — General warrant purported to authorize investigative technique contemplated by wiretap authorization under Pt. VI of Code; namely, it allowed police to obtain prospective production of future private communications from computer maintained by service provider as part of its communications process — Because Pt. VI applied, general warrant under s. 487.01 was unavailable — Investigative technique constituted intercept within meaning of s. 183 of Code. Droit criminel --- Procédure avant le procès — Perquisition avec mandat — Principes généraux Société de télécommunications, T, fournissait des services de téléphonie cellulaire, y compris un service de messagerie texte — Messages textes envoyés d'un téléphone cellulaire à un autre étaient acheminés au moyen du réseau de T — Il était de pratique courante de conserver une copie de tous les messages dans le réseau de T pour une période d'au moins 30 jours pour faciliter le dépannage — Police a demandé et obtenu un mandat général et une ordonnance d'assistance (MGOA) enjoignant T à fournir une copie de tous les messages envoyés et reçus par deux accusés de manière prospective ainsi que des renseignements relatifs à l'abonnement de chaque expéditeur et destinataire — Requête de T visant à faire rejeter la demande en vue d'obtenir un MGOA a été rejetée — Juge des requêtes a conclu qu'il ne pouvait pas accorder une autorisation d'écoute électronique puisque les messages textes n'étaient pas des communications en temps réel susceptibles d'être interceptées — T a formé un pourvoi — Pourvoi accueilli — Demande en vue d'obtenir un MGOA a été annulée — Communication prospective de futurs messages textes se trouvant dans l'ordinateur d'un fournisseur de services ne pouvait pas être autorisée en vertu du mandat général prévu à l'art. 487.01 du Code criminel — Mandat général visait à permettre une technique d'enquête déjà envisagée par la procédure d'autorisation d'écoute électronique prévue à la partie VI du Code, c'est-à-dire permettre à la police d'obtenir la production prospective de futures communications privées à partir d'un ordinateur exploité par un fournisseur de services dans le cadre de son processus de transmission — Comme la partie VI s'appliquait, le mandat général prévu à l'art. 487.01 ne pouvait pas être décerné — Technique d'enquête en l'espèce constituait une interception au sens de l'art. 183 du Code. A telecommunications company, T Co., provided mobile phone services that included text messaging services. Text messages sent from one mobile phone to another were routed through T Co.'s network. Copies of all text messages were routinely stored on T Co.'s network for at least 30 days for troubleshooting purposes. Police successfully applied for a general warrant and assistance order (GWAO) requiring T Co. to provide copies of all messages sent and received by two accused on a prospective basis, as well as subscriber information for each sender and recipient. T Co.'s application for an order quashing the GWAO was dismissed. The application judge concluded that the wiretap authorization was not available, since the text messages were not real-time communications subject to interception. T Co. appealed. Held: The appeal was allowed. Per Abella J. (LeBel, Fish JJ. concurring): The GWAO was quashed. The general warrant power in s. 487.01 of the Criminal Code could not authorize the prospective production of future text messages from a service provider's computer. The general warrant purported to authorize an investigative technique contemplated by a © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 3 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 wiretap authorization under Pt. VI of the Code; namely, it allowed the police to obtain a prospective production of future private communications from a computer maintained by a service provider as part of its communications process. Because Pt. VI applied, a general warrant under s. 487.01 was unavailable. The investigative technique constituted an intercept within the meaning of s. 183 of the Code. The authorization that permitted the police to obtain a prospective production of future text messages over a two-week period directly from a communications process used by a service provider was precisely what Pt. VI was intended to protect. The production schedule required by the general warrant meant that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. The communication process used by a third-party service provider should not defeat Parliament's intended protection for private communications. Per Moldaver J. (concurring in the result) (Karakatsanis J. concurring): The general warrant was invalid. The approach taken by the police could not be sanctioned. The general warrant was invalid because the investigative technique it authorized was substantively equivalent to an intercept. The general warrant served only to provide a means to avoid the rigours of Pt. VI. The police should have sought an authorization under Pt. VI, which thereby precluded the issuance of a general warrant. A general warrant can never prospectively authorize the delivery of future private communications to the police on a continual basis over a sustained period of time Per Cromwell J. (dissenting) (McLachlin C.J.C. concurring): The appeal should be dismissed. The general warrant did not authorize an interception requiring a Pt. VI wiretap authorization. The investigative technique authorized by the general warrant in this case was not an interception of private communications that could be authorized by s. 186. It was inconsistent with the fundamental distinction made by the legislation to conclude that the police were intercepting private communications when T Co. provided them with copies of previously intercepted and stored text messages. Within the interception offence provisions, there is a distinction made between interceptions and the use or retention of intercepted communications. The "no other provision" requirement of s. 487.01(1)(c) was met. Une société de télécommunications, T, fournissait des services de téléphonie cellulaire, y compris un service de messagerie texte. Les messages textes envoyés d'un téléphone cellulaire à un autre étaient acheminés au moyen du réseau de T. Il était de pratique courante de conserver une copie de tous les messages dans le réseau de T pour une période d'au moins 30 jours pour faciliter le dépannage. La police a demandé et obtenu un mandat général et une ordonnance d'assistance (MGOA) enjoignant T à fournir une copie de tous les messages envoyés et reçus par deux accusés de manière prospective ainsi que des renseignements relatifs à l'abonnement de chaque expéditeur et destinataire. La requête de T visant à faire rejeter la demande en vue d'obtenir un MGOA a été rejetée. Le juge des requêtes a conclu qu'il ne pouvait pas accorder une autorisation d'écoute électronique puisque les messages textes n'étaient pas des communications en temps réel susceptibles d'être interceptées. T a formé un pourvoi. Arrêt:Le pourvoi a été accueilli. Abella, J. (LeBel, Fish, JJ., souscrivant à son opinion) : La demande en vue d'obtenir un MGOA a été annulée. La communication prospective de futurs messages textes se trouvant dans l'ordinateur d'un fournisseur de services ne pouvait pas être autorisée en vertu du mandat général prévu à l'art. 487.01 du Code criminel. Le mandat général visait à permettre une technique d'enquête déjà envisagée par la procédure d'autorisation d'écoute électronique prévue à la partie VI du Code, c'est-à-dire permettre à la police d'obtenir la production prospective de futures communications privées à partir d'un ordinateur exploité par un fournisseur de services © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 4 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 dans le cadre de son processus de transmission. Comme la partie VI s'appliquait, le mandat général prévu à l'art. 487.01 ne pouvait pas être décerné. La technique d'enquête en l'espèce constituait une interception au sens de l'art. 183 du Code. Une autorisation permettant à la police d'obtenir la communication prospective de futurs messages textes pendant une période de deux semaines, directement à partir du processus de communication employé par le fournisseur de services, constituait précisément le genre de situations auxquelles la protection de la partie VI était censée s'appliquer. Il découlait du calendrier de communication fixé par le mandat général que les policiers avaient vraisemblablement obtenu des copies stockées de certains messages textes avant même leur réception par la personne à laquelle ils étaient destinés. Le processus de communication qu'employait un tiers fournisseur de services ne devrait pas faire échec à la protection que le législateur entendait accorder aux communications privées. Moldaver, J. (souscrivant au résultat des juges majoritaires) (Karakatsanis, J., souscrivant à son opinion) : Le mandat général était invalide. La démarche adoptée par la police ne pouvait pas être approuvée. Le mandat général était invalide parce que la technique d'enquête qu'il autorisait était équivalente sur le fond à une interception. Le mandat général n'a servi qu'à éviter la rigidité de la partie VI. La police aurait dû demander une autorisation visée par la partie VI, ce qui empêchait la délivrance d'un mandat général. Un mandat général ne peut jamais autoriser prospectivement la transmission de communications privées futures à la police de façon continue pendant une période prolongée. Cromwell, J. (dissident) (McLachlin, J.C.C., souscrivant à son opinion) : Le pourvoi devrait être rejeté. Le mandat général n'a pas autorisé une interception nécessitant une autorisation d'écoute électronique sous le régime de la partie VI. La technique d'enquête autorisée en l'espèce par le mandat général n'était pas une interception de communications privées qui pourrait être autorisée en vertu de l'art. 186. La conclusion que la police interceptait des communications privées en recevant de T des copies de messages textes déjà interceptés et stockés était incompatible avec la distinction fondamentale qu'établissait le texte de loi. Les dispositions relatives à l'infraction d'interception distinguaient l'interception de l'utilisation ou la conservation des communications interceptées. La condition qu'il n'y ait « aucune disposition », énoncée à l'art. 487.01(1)c), a été respectée. Cases considered by Abella J.: R. v. Araujo (2000), [2000] 2 S.C.R. 992, 79 C.R.R. (2d) 1, 2000 SCC 65, 2000 CarswellBC 2438, 2000 CarswellBC 2440, 38 C.R. (5th) 307, 193 D.L.R. (4th) 440, 149 C.C.C. (3d) 449, 143 B.C.A.C. 257, 235 W.A.C. 257, 262 N.R. 346 (S.C.C.) — considered R. v. Brand (2008), 2008 BCCA 94, 229 C.C.C. (3d) 443, (sub nom. R. v. Ford) 252 B.C.A.C. 108, (sub nom. R. v. Ford) 422 W.A.C. 108, (sub nom. R. v. Ford) 167 C.R.R. (2d) 139, 2008 CarswellBC 384, 56 C.R. (6th) 39 (B.C. C.A.) — referred to R. v. Ha (2009), 191 C.R.R. (2d) 212, 65 C.R. (6th) 24, 2009 ONCA 340, 2009 CarswellOnt 2197, 245 C.C.C. (3d) 546, 249 O.A.C. 43, 96 O.R. (3d) 751(Ont. C.A.) — considered R. v. Lyons (1984), [1984] 2 S.C.R. 633, [1985] 2 W.W.R. 1, 14 D.L.R. (4th) 482, 56 N.R. 6, 15 C.C.C. (3d) 417, 43 C.R. (3d) 97, 1984 CarswellBC 776, 58 A.R. 2, 1984 CarswellBC 826(S.C.C.) — considered R. v. Tse (2012), 91 C.R. (6th) 223, 280 C.C.C. (3d) 423, 2012 SCC 16, 2012 CarswellBC 985, 2012 CarswellBC 986, 429 N.R. 109, 344 D.L.R. (4th) 599, 321 B.C.A.C. 1, 547 W.A.C. 1, 257 C.R.R. (2d) 295, [2012] 1 S.C.R. 531 (S.C.C.) — considered © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 5 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 R. v. Welsh (No. 6) (1977), 32 C.C.C. (2d) 363, 74 D.L.R. (3d) 748, 15 O.R. (2d) 1, 1977 CarswellOnt 775 (Ont. C.A.) — considered R. v. Wong (1990), 1990 CarswellOnt 58, 1990 CarswellOnt 1008, 1 C.R. (4th) 1, 120 N.R. 34, 60 C.C.C. (3d) 460, [1990] 3 S.C.R. 36, 2 C.R.R. (2d) 277, 45 O.A.C. 250(S.C.C.) — considered Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers (2004), (sub nom. SOCAN v. Canadian Assn. of Internet Providers) 240 D.L.R. (4th) 193, 2004 SCC 45, 2004 CarswellNat 1919, 2004 CarswellNat 1920, 322 N.R. 306, (sub nom. Socan v. Canadian Assn. of Internet Providers) [2004] 2 S.C.R. 427, (sub nom. SOCAN v. Canadian Assn. of Internet Providers) 32 C.P.R. (4th) 1 (S.C.C.) — considered Cases considered by Moldaver J.: R. v. Araujo (2000), [2000] 2 S.C.R. 992, 79 C.R.R. (2d) 1, 2000 SCC 65, 2000 CarswellBC 2438, 2000 CarswellBC 2440, 38 C.R. (5th) 307, 193 D.L.R. (4th) 440, 149 C.C.C. (3d) 449, 143 B.C.A.C. 257, 235 W.A.C. 257, 262 N.R. 346 (S.C.C.) — considered R. v. Brand (2008), 2008 BCCA 94, 229 C.C.C. (3d) 443, (sub nom. R. v. Ford) 252 B.C.A.C. 108, (sub nom. R. v. Ford) 422 W.A.C. 108, (sub nom. R. v. Ford) 167 C.R.R. (2d) 139, 2008 CarswellBC 384, 56 C.R. (6th) 39 (B.C. C.A.) — distinguished R. v. Ha (2009), 191 C.R.R. (2d) 212, 65 C.R. (6th) 24, 2009 ONCA 340, 2009 CarswellOnt 2197, 245 C.C.C. (3d) 546, 249 O.A.C. 43, 96 O.R. (3d) 751(Ont. C.A.) — distinguished R. v. Lyons (1984), [1984] 2 S.C.R. 633, [1985] 2 W.W.R. 1, 14 D.L.R. (4th) 482, 56 N.R. 6, 15 C.C.C. (3d) 417, 43 C.R. (3d) 97, 1984 CarswellBC 776, 58 A.R. 2, 1984 CarswellBC 826(S.C.C.) — considered R. v. Wong (1990), 1990 CarswellOnt 58, 1990 CarswellOnt 1008, 1 C.R. (4th) 1, 120 N.R. 34, 60 C.C.C. (3d) 460, [1990] 3 S.C.R. 36, 2 C.R.R. (2d) 277, 45 O.A.C. 250(S.C.C.) — considered Schreiber v. Canada (Attorney General) (1997), 114 C.C.C. (3d) 97, 1997 CarswellNat 462, 144 D.L.R. (4th) 711, 1997 CarswellNat 1369, 127 F.T.R. 240 (note), 6 C.R. (5th) 314, 210 N.R. 9, 42 C.R.R. (2d) 76, [1997] 2 F.C. 176 (Fed. C.A.) — referred to Schreiber v. Canada (Attorney General) (1998), 225 N.R. 297, 124 C.C.C. (3d) 129, 158 D.L.R. (4th) 577, 1998 CarswellNat 752, 1998 CarswellNat 753, 51 C.R.R. (2d) 253, 16 C.R. (5th) 1, [1998] 1 S.C.R. 841, 147 F.T.R. 309 (note), 5 B.H.R.C. 145(S.C.C.) — referred to Cases considered by Cromwell J. (dissenting): R. v. Araujo (2000), [2000] 2 S.C.R. 992, 79 C.R.R. (2d) 1, 2000 SCC 65, 2000 CarswellBC 2438, 2000 CarswellBC 2440, 38 C.R. (5th) 307, 193 D.L.R. (4th) 440, 149 C.C.C. (3d) 449, 143 B.C.A.C. 257, 235 W.A.C. 257, 262 N.R. 346 (S.C.C.) — considered in a minority or dissenting opinion R. v. Bahr (2006), 2006 CarswellAlta 2105, 434 A.R. 1, 2006 ABPC 360(Alta. Prov. Ct.) — refered to in a minority or dissenting opinion © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 6 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 R. v. Brand (2008), 2008 BCCA 94, 229 C.C.C. (3d) 443, (sub nom. R. v. Ford) 252 B.C.A.C. 108, (sub nom. R. v. Ford) 422 W.A.C. 108, (sub nom. R. v. Ford) 167 C.R.R. (2d) 139, 2008 CarswellBC 384, 56 C.R. (6th) 39 (B.C. C.A.) — considered in a minority or dissenting opinion R. v. Cole (2012), 290 C.C.C. (3d) 247, 223 L.A.C. (4th) 1, 2012 CarswellOnt 12684, 2012 CarswellOnt 12685, 2012 SCC 53, D.T.E. 2012T-731, 96 C.R. (6th) 88, 353 D.L.R. (4th) 447, 436 N.R. 102, 2012 C.L.L.C. 210-059, 297 O.A.C. 1 (S.C.C.) — refered to in a minority or dissenting opinion R. v. Cross (2007), 2007 CarswellOnt 9108 (Ont. S.C.J.) — refered to in a minority or dissenting opinion R. v. Ha (2009), 191 C.R.R. (2d) 212, 65 C.R. (6th) 24, 2009 ONCA 340, 2009 CarswellOnt 2197, 245 C.C.C. (3d) 546, 249 O.A.C. 43, 96 O.R. (3d) 751 (Ont. C.A.) — considered in a minority or dissenting opinion R. v. Ha (2009), 200 C.R.R. (2d) 373 (note), [2009] 3 S.C.R. viii (note), 263 O.A.C. 398 (note), 403 N.R. 388 (note), 2009 CarswellOnt 7078, 2009 CarswellOnt 7079 (S.C.C.) — refered to in a minority or dissenting opinion R. v. Jones (2011), 2011 CarswellOnt 11405, 107 O.R. (3d) 241, 2011 ONCA 632, 285 O.A.C. 25, 90 C.R. (6th) 4, 278 C.C.C. (3d) 157, 246 C.R.R. (2d) 1(Ont. C.A.) — refered to in a minority or dissenting opinion R. v. Lauda (1998), 49 C.R.R. (2d) 39, 106 O.A.C. 161, 1998 CarswellOnt 37, 13 C.R. (5th) 20, 37 O.R. (3d) 513, 122 C.C.C. (3d) 74 (Ont. C.A.) — refered to in a minority or dissenting opinion R. v. Lauda (1998), [1998] 2 S.C.R. 683, 115 O.A.C. 293, 1998 CarswellOnt 4332, 1998 CarswellOnt 4333, 40 O.R. (3d) 159, 129 C.C.C. (3d) 225, 55 C.R.R. (2d) 375, 20 C.R. (5th) 316, 232 N.R. 1(S.C.C.) — refered to in a minority or dissenting opinion R. v. Little (2009), 2009 CarswellOnt 8024 (Ont. S.C.J.) — refered to in a minority or dissenting opinion R. v. Noseworthy (1997), 43 C.R.R. (2d) 313, 1997 CarswellOnt 1712, 100 O.A.C. 76, 33 O.R. (3d) 641, 116 C.C.C. (3d) 376 (Ont. C.A.) — refered to in a minority or dissenting opinion R. v. Tele-Mobile Co. (2008), 2008 CarswellOnt 1588, 2008 CarswellOnt 1589, 2008 SCC 12, (sub nom. Tele-Mobile Co. v. Ontario) 372 N.R. 157, 55 C.R. (6th) 1, (sub nom. Ontario v. Tele-Mobile Co.) 229 C.C.C. (3d) 417, (sub nom. Tele-Mobile Co. v. Ontario) 235 O.A.C. 369, (sub nom. Tele-Mobile Co. v. Ontario) [2008] 1 S.C.R. 305, (sub nom. R. v. Tele-Mobile Company (Telus Mobility)) 92 O.R. (3d) 478 (note), (sub nom. Ontario v. Tele-Mobile Co.) 291 D.L.R. (4th) 193 (S.C.C.) — refered to in a minority or dissenting opinion R. v. Tse (2008), 2008 BCSC 906, 2008 CarswellBC 1949 (B.C. S.C.) — refered to in a minority or dissenting opinion R. v. Weir (2001), 2001 CarswellAlta 1069, 2001 ABCA 181, [2001] 11 W.W.R. 85, 281 A.R. 333, 248 W.A.C. 333, 156 C.C.C. (3d) 188, 85 C.R.R. (2d) 369, 95 Alta. L.R. (3d) 225(Alta. C.A.) — refered to in a minority or dissenting opinion Statutes considered by Abella J.: © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 7 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 8 — considered Criminal Code, R.S.C. 1970, c. C-34 Pt. IV.1 [en. 1973-74, c. 50, s. 2] — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Pt. VI — referred to s. 183 "intercept" — considered s. 183 "intercepter" — considered s. 183 "private communication" — considered s. 184(1) — considered s. 185 — considered s. 186 — considered s. 186(1)(b) — considered s. 189 — considered s. 195 — considered s. 487.01 [en. 1993, c. 40, s. 15] — considered s. 487.01(1) [en. 1993, c. 40, s. 15] — considered s. 487.01(1)(c) [en. 1993, c. 40, s. 15] — considered s. 487.02 [en. 1993, c. 40, s. 15] — considered Interpretation Act, R.S.C. 1985, c. I-21 s. 35(1) "telecommunication" [am. 1993, c. 38, s. 87] — considered Statutes considered by Moldaver J.: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 24(2) — considered © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 8 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Pt. VI — referred to s. 183 "intercept" — considered s. 183 "private communication" — referred to s. 184 — referred to s. 184(2) — referred to s. 185(1) — referred to s. 186(1)(b) — considered s. 186(4)(c) — referred to s. 186(6) — referred to s. 193 — referred to s. 195 — referred to s. 196 — referred to s. 487 — referred to s. 487.01 [en. 1993, c. 40, s. 15] — considered s. 487.01(1)(b) [en. 1993, c. 40, s. 15] — considered s. 487.01(1)(c) [en. 1993, c. 40, s. 15] — considered s. 487.01(3) [en. 1993, c. 40, s. 15] — considered s. 487.012 [en. 2004, c. 3, s. 7] — referred to s. 492.2(1) [en. 1993, c. 40, s. 18] — referred to s. 492.2(2) [en. 1993, c. 40, s. 18] — referred to Statutes considered by Cromwell J. (dissenting): Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 9 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 s. 8 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Pt. VI — referred to s. 183 "intercept" — considered s. 183 "private communication" — referred to s. 184 — considered s. 184(1) — referred to s. 184(2) — considered s. 184(2)(a) — considered s. 184(2)(b) — considered s. 184(2)(c) — considered s. 184(2)(d) — considered s. 184(2)(e) — considered s. 184(3) — considered s. 184.4 [en. 1993, c. 40, s. 4] — considered s. 185(1) — referred to s. 186 — considered s. 186(1) — considered s. 186(1)(b) — considered s. 186(4) — referred to s. 186(4)(e) — referred to s. 193 — considered s. 193(1) — considered s. 193(2) — considered s. 193(2)(a) — considered © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 10 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 s. 193(2)(b) — considered s. 193(2)(d) — considered s. 196 — considered s. 487(2.1) [en. 1997, c. 18, s. 41] — referred to s. 487.01 [en. 1993, c. 40, s. 15] — considered s. 487.01(1) [en. 1993, c. 40, s. 15] — considered s. 487.01(1)(b) [en. 1993, c. 40, s. 15] — considered s. 487.01(1)(c) [en. 1993, c. 40, s. 15] — considered s. 487.01(3) [en. 1993, c. 40, s. 15] — considered s. 487.012 [en. 2004, c. 3, s. 7] — considered s. 487.012(1) [en. 2004, c. 3, s. 7] — considered s. 487.012(1)(a) [en. 2004, c. 3, s. 7] — considered s. 487.012(1)(b) [en. 2004, c. 3, s. 7] — considered s. 487.012(3) [en. 2004, c. 3, s. 7] — referred to s. 487.012(3)(c) [en. 2004, c. 3, s. 7] — considered s. 492.2(1) [en. 1993, c. 40, s. 18] — referred to s. 492.2(2) [en. 1993, c. 40, s. 18] — referred to s. 552 "judge" — referred to Protection of Privacy Act, S.C. 1973-74, c. 50 Generally — referred to Authorities considered: Bill C-30, Protecting Children from Internet Predators Act, 1st Sess., 41st Parl., 2012 (First Reading, February 14, 2012)Bill C-55, Response to the Supreme Court of Canada Decision in R. v. Tse Act, 1st Sess., 41st Parl., 2013 (First Reading, February 11, 2013)Bill C-176, Protection of Privacy Act, 1st Sess., 29th Parl., 1973, Explanatory NoteCoughlan, Steve, "R. v. Ha: Upholding General Warrants without Asking the Right Questions" (2009), 65 C.R. (6th) 41Fontana, James A. and David Keeshan, The Law of Search and Seizure in Canada, 8th ed. (Markham, Ont.: LexisNexis, 2010)Hutchison, Scott C., Hutchison's Canadian Search Warrant Manual 2005: A Guide to Legal and Practical Issues Associated with Judicial Pre-Authorization of Investigative Techniques (Toronto: Carswell, 2005)Hutchison, Scott C. et al., Search and Seizure Law in Canada, vol. 1 © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 11 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 (Toronto: Carswell, 2005) (looseleaf)Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008)Watt, David, Law of Electronic Surveillance in Canada (Toronto: Carswell, 1979) APPEAL by telecommunications company from judgment reported at R. v. Telus Communications Co. (2011), 105 O.R. (3d) 411, 2011 CarswellOnt 1331, 2011 ONSC 1143 (Ont. S.C.J.), dismissing telecommunications company's application for order quashing general warrant and assistance order. POURVOI formé par une société de télécommunications à l'encontre d'un jugement publié R. àv. Telus Communications Co. (2011), 105 O.R. (3d) 411, 2011 CarswellOnt 1331, 2011 ONSC 1143(Ont. S.C.J.), ayant rejeté la requête de la société de télécommunications visant à faire rejeter une demande en vue d'obtenir un mandat général et une ordonnance d'assistance. Abella J.: 1 For many Canadians, text messaging has become an increasingly popular form of communication. Despite technological differences, text messaging bears several hallmarks of traditional voice communication: it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication. The issue in this appeal is the proper procedure under theCriminal Code, R.S.C. 1985, c. C- 46, for authorizing the prospective daily production of these messages from a computer database maintained by a telecommunications service provider. 2 The service provider in this case is TELUS Communications Company. It urges this Court to find that the prospective, daily acquisition of text messages from their computer database constitutes an interception of private communications and therefore requires authorization under Part VI of the Code, a comprehensive scheme for "wiretap authorizations" for the interception of private communications. The Crown, on the other hand, contends that the retrieval of messages from a computer maintained by a service provider does not fall within the scope of Part VI because the production of messages in computer storage does not amount to an "interception", and that the police are therefore permitted to use the general warrant power in s. 487.01 of the Code to get copies of the text messages. 3 Part VI of the Code provides a scheme to protect private communications. Telus employs a unique process for transmitting text messages that results in the messages being stored on their computer database for a brief period of time. The question in this appeal is whether the technical differences inherent in Telus' transmission of text messages should deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to. 4 The focus of this appeal therefore turns on the interpretation of "intercept" within Part VI. "Intercept" is used throughout Part VI with reference to the intercept of private communications. This means that in interpreting "intercept a private communication", we must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards. The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI. 5 Text messaging is, in essence, an electronic conversation. 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 © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 12 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 communications. Background 6 When Telus subscribers send a text message, the transmission of that message takes place in the following sequence. It is first transmitted to the nearest cell tower, then to Telus' transmission infrastructure, then to the cell tower nearest to the recipient, and finally to the recipient's phone. If the recipient's phone is turned off or is out of range of a cell tower, the text message will temporarily pause in Telus' transmission infrastructure for up to five days. After five days, Telus stops trying to deliver the message and deletes it without notifying the sender. 7 Unlike most telecommunications service providers, Telus routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a period of 30 days. Text messages that are sent by a Telus subscriber are copied to the computer database during the transmission process at the point in time when the text message enters Telus' transmission infrastructure. Text messages received by a Telus subscriber are copied to the computer database when the Telus subscriber's phone receives the message. In many instances, this system results in text messages being copied to the computer database before the recipient's phone has received the text message and/or before the intended recipient has read the text message. 8 On March 27, 2010, the Owen Sound Police Service obtained a general warrant under s. 487.01 and related assistance order under s. 487.02 of the Code. The warrant named two Telus wireless subscribers and required Telus to provide the police with copies of any text messages sent or received by these subscribers which were stored on Telus' computer database. In addition, the warrant required the production of subscriber information identifying any individuals who sent text messages to, or received text messages from the two individuals who were the target of the warrant. 9 The warrant covered a subsequent two-week period between March 30, 2010 and April 16, 2010. During this time, the warrant required Telus to abide by a specific production schedule. On March 30, 2010, Telus was required to produce the information for March 18, 2010 to March 30, 2010. On each of the following 13 days, Telus was required to produce, on a daily basis, the text messages sent or received within the last 24 hours, as well as any related subscriber information. 10 Telus argued that the warrant was invalid because the police had failed to satisfy the requirement under s. 487.01(1)(c) of the Code that a general warrant could not be issued if another provision in the Code is available to authorize the technique used by police. Since the warrant purports to authorize the interception of private communications, and since Part VI is the scheme that authorizes the interception of private communications, a general warrant was not available. The Crown's position, on the other hand, was that the retrieval of messages from Telus' computer database does not fall within the scope of Part VI since the copies on Telus' computer database are not real-time communications and the police are therefore permitted to use the general warrant power to authorize the prospective production of text messages stored on a service provider's computer. 11 The application judge dismissed Telus' application (2011 ONSC 1143, 105 O.R. (3d) 411 (Ont. S.C.J.)). The part of the warrant that required production of historical messages predating the issuance of the warrant was rescinded since both the Crown and Telus conceded that a production order was available to obtain those messages. © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 13 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 12 In my view, text messages are private communications and, even if they are stored on a service provider's computer, their prospective production requires authorization under Part VI of theCode. 13 If Telus did not maintain its computer database, there is no doubt that the police would be required to obtain an authorization under Part VI to secure the prospective, and in this case continuous, production of text messages. In fact, most service providers do not routinely copy text messages to a computer database as part of their transmission service. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wiretap authorizations under Part VI to compel the prospective and continuous production of their text messages. This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy. 14 I would therefore allow the appeal and quash the general warrant and related assistance order. Analysis 15 We have not been asked to determine whether a general warrant is available to authorize the production of historical text messages, or to consider the operation and validity of the production order provision with respect to private communications. Rather, the focus of this appeal is on whether the general warrant power in s. 487.01 of the Code can authorize the prospective production of future text messages from a service provider's computer. That means that we need not address whether the seizure of the text messages would constitute an interception if it were authorized after the messages were stored. 16 Section 487.01 was enacted in 1993 as part of a series of amendments to theCode in Bill C-109, S.C. 1993, c. 40. The Bill introduced a number of new judicial authorization provisions. Section 487.01 was meant to make search warrants available for techniques or procedures not specified in theCode. It authorizes a judge to issue a general warrant permitting a peace officer to "use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure": 487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property if (a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. 17 The key to this case lies in whether s. 487.01(1)(c) applies, namely, whether another provision would provide for the authorization sought in this case. In R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751 (Ont. C.A.), © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 14 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 MacPherson J.A. observed that the focus of the s. 487.01(1)(c) analysis is "on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute" (at para. 43; see alsoR. v. Brand, 2008 BCCA 94, 229 C.C.C. (3d) 443 (B.C. C.A.), at para. 50 (sub nom. R. v. Ford). 18 Viewed contextually, therefore, s. 487.01(1)(c) stipulates that the general warrant power is residual and resort to it is precluded where judicial approval for the proposed technique, procedure or device or the "doing of the thing" is available under the Code or another federal statute. 19 In other words, s. 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively. This is to prevent the circumvention of more specific or rigorous pre-authorization requirements for warrants (S.C. Hutchison et al, Search and Seizure Law in Canada (looseleaf), at p. 16-40.3). 20 This means that the Crown is only entitled to a general warrant where it can show that no other provision would provide for a warrant, authorization or order permitting the technique, including, as Moldaver J. observes, provisions that authorize techniques which are substantively equivalent to the technique proposed by the police in a given case. The investigative technique authorized by the general warrant in this case allowed the police to obtain prospective production of future text messages on a daily basis for a two-week period directly from a service provider. The essence of the Crown's argument was that no other provision was available because the retrieval of stored messages was not an interception. If the Crown is right, they are entitled to a general warrant. If they are wrong, the general warrant must be quashed. Either way, it is impossible to avoid an examination of whether the technique the police sought to employ was something that required a Part VI authorization. 21 The Crown never conceded that these were circumstances in which a choice was available under either a general warrant or a Part VI authorization. Instead, it argued that the requirement in s. 487.01(1)(c) was satisfied because no other provision was available to authorize the prospective production of future text messages stored on a service provider's computer, maintaining that Part VI did not apply because the retrieval of messages from computer storage is not an "intercept". That is the central issue that is engaged in this case. 22 This requires us to determine whether Part VI applies to the prospective, and in this case continuous, production of text messages sought by the police, or whether the fact that the messages are stored in Telus' computer means that their retrieval by the police is not an "intercept". If Part VI does apply, then in accordance with s. 487.01(1)(c), a general warrant is not available. 23 Section 184(1) makes it an indictable offence to "wilfully intercep[t] a private communication" by use of a device. Part VI provides a comprehensive scheme for the authorization of these interceptions. It was enacted in 1974 through the Protection of Privacy Act, S.C. 1973-74, c. 50, which amended theCode to add Part IV.1 (now Part VI) entitled "Invasion of Privacy". The goal of the legislation was explained by Zuber J.A. inR. v. Welsh (No. 6) (1977), 32 C.C.C. (2d) 363 (Ont. C.A.) as follows: It is apparent that in enacting the Protection of Privacy Act, 1973-74 (Can.), c. 50, ... Parliament had two objectives. The first was to protect private communications by prohibiting interception and to render inadmissible evidence obtained in violation of the statute. The second objective, which balances the first, was to recognize the need to allow the appropriate authorities, subject to specific controls, to intercept private communications in the investigation of serious crime, and to adduce the evidence thus obtained. [p. 369] © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 15 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 24 Because the purpose of Part VI is to restrict the ability of the police to obtain and disclose private communications, it is drafted broadly to ensure the necessary protection. In R. v. Lyons, [1984] 2 S.C.R. 633 (S.C.C.), this Court explained this breadth as follows: This is broad legislation embracing in these extensive provisions the use of a wide range of radio, telephone, optical and acoustical devices for listening to and recording private communications as broadly defined. It is not "wiretapping" legislation, nor eavesdropping legislation, nor radio regulation. It is the regulation of all these things and "any other device" that may be used to intercept intelligence reasonably expected by the originator not to be intercepted by anyone other than the intended recipient. [p. 664] 25 The definition of "intercept" in s. 183 includes "listen to, record or acquire a communication or acquire the substance, meaning or purport thereof". Consistent with the broad scope of Part VI, this definition is not exhaustive and focuses on the state acquisition of informational content — the substance, meaning, or purport — of the private communication. It is not just the communication itself that is protected, but any derivative of that communication that would convey its substance or meaning. "[P]rivate communication" is defined in s. 183 as follows: ... any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; 26 This definition focuses on the individual's reasonable expectation of privacy in the communication. The word "telecommunication" used in this definition is in turn defined in theInterpretation Act, R.S.C., 1985, c. I- 21, s. 35, amended in 1993 (S.C. 1993, c. 38, s. 87) as "the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system". 27 Sections 185 and 186 of the Code set out the general requirements governing the application for an authorization under Part VI. Compared with other search and seizure and warrant provisions in theCode, the provisions in Part VI contain more stringent requirements to safeguard privacy interests. Before granting an authorization under Part VI, a judge must be satisfied that the authorization is in the best interests of the administration of justice. 28 A judge must also be satisfied, in accordance with s. 186(1)(b), "that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures". In R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), this Court clarified that this criterion required the police to show that there was "no other reasonable alternative method of investigation in the circumstances of the particular criminal inquiry" (para. 29). 29 Part VI authorizations must also state the identity of persons whose private communications will be intercepted, the place at which they are intercepted, and the manner of the interception. They are required to contain such conditions as the judge considers advisable and will only be valid for a limited period of time not to exceed 60 days. Finally, a written application by the Attorney General, Minister of Public Safety or a designated © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 16 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 agent is required. 30 In addition to these prerequisites for authorization, Part VI contains a number of notice requirements. Section 196 requires that notice be given to targets of interceptions authorized under s. 186 within a certain timeframe. Under s. 189, an accused must be given notice of any interception intended to be produced in evidence. In addition, s. 195 requires the Minister of Public Safety and Emergency Preparedness or the Attorney General for each province to produce an annual report with respect to the use of Part VI authorizations. InR. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531 (S.C.C.), this Court found that a notice requirement provides transparency and serves as a further check on the power of police to perform highly intrusive interceptions of private communications. The Court therefore concluded that a notice provision was necessary to meet the minimal constitutional standards of s. 8 of theCanadian Charter of Rights and Freedoms. 31 These safeguards illuminate Parliament's intention that a higher degree of protection be available for private communications. Part VI has broad application to a number of technologies and includes more rigorous safeguards than other warrant provisions in the Code. In considering whether the prospective, daily production of future text messages stored in Telus' computer falls within Part VI, therefore, we must take this overall objective into account. 32 As all parties acknowledged, it is clear that text messages qualify as telecommunications under the definition in the Interpretation Act. They also acknowledged that these messages, like voice communications, are made under circumstances that attract a reasonable expectation of privacy and therefore constitute "private communication" within the meaning of s. 183. Similarly, there is no question that the computer used by Telus would qualify as "any device" under the definitions in s. 183. 33 The issue then is how to define "intercept" in Part VI. The interpretation should be informed not only by the purposes of Part VI, but also by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technological developments. In R. v. Wong, [1990] 3 S.C.R. 36 (S.C.C.), this Court found that "the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 [of theCharter] is meant to keep pace with technological development, and, accordingly, to ensure that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the means of invasion may take" (p. 44). A technical approach to "intercept" would essentially render Part VI irrelevant to the protection of the right to privacy in new, electronic and text-based communications technologies, which generate and store copies of private communications as part of the transmission process. 34 It is true that unlike traditional voice communication, a text message may or may not be delivered to its intended recipient at the time it is created. Receipt of the text message depends on whether the phone is turned on, whether it is in range of a cell tower, and whether the user has accessed the message. If Telus is unable to deliver the message, it remains in the transmission infrastructure for five days, at which point Telus stops trying to complete delivery. Furthermore, unlike voice communications, text communications, by their nature, generate a record of the communication which may easily be copied and stored. A narrow or technical definition of "intercept" that requires the act of interception to occur simultaneously with the making of the communication itself is therefore unhelpful in addressing new, text-based electronic communications. 35 A narrow definition is also inconsistent with the broad language and purpose of Part VI. The statutory definition of "intercept" in s. 183 includes three distinct parts — "listen to", "record"or "acquire". In French, the definition includes "de prendre ... connaissance". Rather than limit the definition of "intercept" to its narrow, © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 17 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 technical definition, the statutory definition broadens the concept of interception. There is no requirement in the Code definition of "intercept" that the interception of a private communication be simultaneous or contemporaneous with the making of the communication itself. If Parliament intended to include such a requirement, it would have included it in the definition of "intercept". Instead, it chose to adopt a wider definition, consistent with Part VI's purpose to offer broad protection for private communications from unauthorized interference by the state. 36 The interpretation of "intercept a private communication" must, therefore, focus on the acquisition of informational content and the individual's expectation of privacy at the time the communication was made. In my view, to the extent that there may be any temporal element inherent in the technical meaning of intercept, it should not trump Parliament's intention in Part VI to protect an individual's right to privacy in his or her communications. 37 The use of the word "intercept" implies that the private communication is acquired in the course of the communication process. In my view, the process encompasses all activities of the service provider which are required for, or incidental to, the provision of the communications service. Acquiring the substance of a private communication from a computer maintained by a telecommunications service provider would, as a result, be included in that process. 38 Focusing on the fact that the Code draws a distinction between the interception of private communications and the disclosure of those communications, fails to provide the intended protection under Part VI. On the contrary, it allows technological differences in Telus' transmission process to defeat Parliament's intended protection of private communications from state interference. 39 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. 40 When Telus copies messages to its computer database, several steps in the transmission process have yet to occur. The production schedule required by the general warrant in this case means that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. 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 (seeLyons). 41 The communication process used by a third-party service provider should not defeat Parliament's intended protection for private communications. As the interveners Canadian Civil Liberties Association and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic point out in their factums, this Court has recognized in other contexts that telecommunications service providers act merely as a third-party "conduit" for the transmission of private communications and ought to be able to provide services without having a legal effect on the nature (or, in this case, the protection) of these communications (Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 18 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 (S.C.C.), at paras. 100-101). 42 Part VI recognizes the dangers inherent in permitting access to the future private communications of a potentially unlimited number of people over a lengthy period of time. Those are the very risks inherent in the investigative technique in this case. An authorization that permits police to obtain theprospective production of future text messages over a two-week period directly from the communications process used by the service provider is precisely what Part VI was intended to protect. In my view, the investigative technique in this case therefore qualifies as "intercepting private communications" under Part VI. 43 An interpretation of "intercept a private communication" that includes the investigative technique used by police in this case finds support in the statutory definition of "intercept" in s. 183. The definition includes the simple acquisition of a communication. It does not require the acquisition of the communication itself; rather, the acquisition of the "substance, meaning or purport" of the communication is sufficient. Moreover, this interpretation is harmonious with the scheme and objectives of Part VI, which is drafted broadly in order to regulate and control a wide variety of technological invasions of privacy. Finally, it strikes the appropriate balance between the serious invasion of privacy that results from the surreptitious acquisition of private communications and the evolving needs of effective law enforcement. 44 The police gained a substantial advantage by proceeding with a general warrant. They did not need the Attorney General's request for an authorization; they did not need to show that other investigative procedures had been tried and failed; they did not need to provide any notice to the target individuals; and they did not need to identify which other individuals' private communications may be acquired in the course of the search. 45 The general warrant in this case purported to authorize an investigative technique contemplated by a wiretap authorization under Part VI, namely, it allowed the police to obtain prospective production of future private communications from a computer maintained by a service provider as part of its communications process. Because Part VI applied, a general warrant under s. 487.01 was unavailable. 46 Accordingly, I would allow the appeal and quash the general warrant and related assistance order. Moldaver J.: I. Introduction 47 Where a police investigative technique intrudes on an individual's reasonable expectation of privacy, it falls to Parliament to provide for specific legislative authorization of the technique. That is the general rule. The so-called "general warrant" provision of the Criminal Code, R.S.C. 1985, c. C-46, operates as an exception to the rule, allowing the police to seek judicial authorization of a proposed investigative technique that is not specifically authorized by statute. Although several issues have been raised in this appeal, the dispositive one, in my view, is whether a general warrant may properly issue where the substance of an investigative technique, if not its precise form, is addressed by an existing legislative provision. 48 I have had the benefit of reading the reasons of my colleague Abella J. and, although we approach the matter differently, I share her conclusion that the general warrant in this case is invalid. My colleague's reasons focus on the definition of "intercept" in s. 183 of the Code and whether the search in this case fell within that definition for purposes of Part VI. I do not think it necessary to answer those questions because in my view the © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 19 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 result in this case is driven by the failure of the authorities to establish one of the prerequisites needed to obtain a general warrant. 49 On the facts of this case, when one cuts through form and looks at the substance of the search that the police sought to conduct, what we are left with is the equivalent of a Part VI intercept. As such, the police could and, for reasons I will explain, should have sought an authorization under Part VI, which thereby precludes the issuance of a general warrant. I would accordingly join my colleague Abella J. in allowing the appeal and quashing the general warrant, as well as the related assistance order. II. Overview of Issues on Appeal 50 The parties in this appeal framed their principal arguments around the question of whether the investigative technique authorized by the general warrant falls within the definition of "intercept" in s. 183 of the Code. The parties agree that if what occurred here was an intercept, the general warrant could not issue, as it would fail the "no other provision" requirement in s. 487.01(1)(c) of the Code. They, of course, disagree as to whether this technique was an intercept. 51 My colleague Abella J. and I agree that the Crown is entitled to a general warrant only where it can show that "no other provision" would provide for the technique, including a substantively equivalent technique, proposed by the police in a given case. We also agree on the result in this case. We part company, however, on the path to that result. 52 My colleague takes the position that the investigative technique herewas an intercept within the meaning of s. 183, and would thereby hold the general warrant invalid. I prefer, instead, to resolve this case on the basis that the investigative technique here was substantively equivalent to an intercept and, in light of that conclusion, would hold the general warrant invalid. 53 I choose a different path because I am reluctant to use this case as a vehicle to undertake an analysis of what constitutes an intercept for purposes of Part VI. In approaching the matter as I have, I am not unmindful of the need to address the risks to privacy posed by the digital age. The task of adapting laws that were a product of the 1970s to a world of smartphones and social networks is a challenging and profoundly important one. But the resolution of whether what occurred here was or was not, strictly speaking, an intercept is unnecessary, in my view, because there is a narrower basis for decision that guards against unforeseen and potentially farreaching consequences in this complex area of the law. III. Analysis A. The General Warrant Provision 54 Parliament enacted the general warrant provision in 1993 together with several new search powers as part of its response to a series of decisions of this Court concerning electronic surveillance. Section 487.01 was a specific response to R. v. Wong, [1990] 3 S.C.R. 36 (S.C.C.). That decision held that police video monitoring of activities in a hotel room intruded on an individual's reasonable expectation of privacy and thus required prior judicial authorization pursuant to a valid legislative provision. Parliament's response, in the form of s. 487.01, went beyond the authorization of video monitoring. The provision states in relevant part: 487.01 (1) [Information for general warrant] A provincial court judge, a judge of a superior court of © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 20 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property if (a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. (2) [Limitation] Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person. (3) [Search or seizure to be reasonable] A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances. 55 The breadth of the general warrant — judicial sanction to "use any device or investigative technique or procedure or do any thing" that if not authorized would constitute an unreasonable search or seizure — is kept in check by several prerequisites to its availability and conditions on its operation. Chief among them and what, in my view, lies at the heart of this appeal is the requirement in s. 487.01(1)(c) that "there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done". 56 The requirement that there be "no other provision" that would provide for the search ensures that the general warrant is used sparingly as a warrant of limited resort. It guards against the general warrant becoming "an easy back door for other techniques that have more demanding pre-authorization requirements": S. C. Hutchison et al, Search and Seizure Law in Canada (loose-leaf), at p. 16-40.3. Without ascribing any improper motive to the police, that, I believe, is what occurred in this case. B. The General Warrant in This Case 57 In a typical scenario where TELUS Communications Company ("Telus"), the telecommunications service provider here, is served with an authorization under Part VI, the company installs a device that automatically copies all activity for the identified phone number, including all text messages, and automatically delivers such data to a police "wire room". The Crown does not dispute that the acquisition of an individual's text messages in this manner constitutes a Part VI intercept, nor is there any dispute that a text message can constitute a "private communication" within the meaning of Part VI. 58 As a matter of corporate practice, however, Telus routinely stores a copy of a subscriber's incoming and outgoing text messages on its databases for at least 30 days. Though Telus is unique among major © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 21 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 telecommunications service providers in making such copies, it is legally entitled to do so pursuant to an exception in s. 184(2) of the Code. The company says it intercepts its subscribers' messages in this manner to aid in troubleshooting customer problems. 59 The fact that Telus stores its subscribers' text messages in this manner is significant — indeed, it is the reason this appeal exists — because it creates an investigative resource for the authorities. As Det. Sgt. Prosser of the Ontario Provincial Police said in his affidavit filed with this Court, Telus's practice "provides investigators with another option by which to access the content of these messages" (A.R., at p. 115). Relying on conventional search warrants (s. 487) or production orders (s. 487.012), the police have obtained copies of the messages stored in Telus's databases. 60 In sum, prior to this case, with only a handful of exceptions, all police searches that sought copies of Telus subscribers' text messages were authorized either under Part VI or by a conventional search warrant or production order. The Crown in its factum puts the matter succinctly: police practice with respect to Telus subscribers has been to seek either "search warrants or production orders (for historic messages) or wiretap authorizations (for future messages)" (R.F., at para. 10 (emphasis added)). 61 The general warrant in this case thus represents a third option. In form, it resembles a production order because it authorizes police access to text messages already stored in Telus's database. And yet, in substance, it resembles a Part VI authorization, because it prospectively authorizes police access to future private communications on a continual basis over a sustained period of time. 62 The inherent hybridity of the general warrant in this case underscores the need for an inquiry into whether the "no other provision" test is satisfied to assess the substance of the police investigative technique, not merely its formal trappings. But that is not what happened here. C. Was the General Warrant Validly Issued? 63 The reviewing judge looked to binding authority from the Ontario Court of Appeal for guidance. InR. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751(Ont. C.A.), MacPherson J.A. observed: The focus in the s. 487.01(1)(c) analysis is not on whether there are other investigative techniques that might accomplish the purported investigative purposes or goals of the police; rather, the focus is on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute. [Emphasis added; para. 43.] 64 On the strength of Ha, the reviewing judge concluded that there was no other provision in theCode or any other statute that would authorize the investigative technique in this case — namely the "prospective and daily production of text messages" (2011 ONSC 1143, 105 O.R. (3d) 411 (Ont. S.C.J.), at para. 75). Though the police "could have gone to a justice of the peace every day for the 14 days covered by the General Warrant and obtained the same records using conventional warrants", the general warrant could issue precisely because it provided a single, comprehensive authorization for the search that was otherwise unanticipated by Parliament (para. 70).[FN1] 65 The analysis is, in my respectful view, incomplete. It is self-evident that the policecould have sought a © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 22 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 Part VI authorization and achieved their investigative objective. Crown counsel recognized this during the hearing of this appeal: I'm not sure that they really thought this through at the end of the day because if what the police are doing here is Part VI, well, you know, presumably, the police could go back to the issuing justice who was a Superior Court judge and say: Okay. Just issue this as a Part VI authorization. [Emphasis added; transcript, at p. 81.] On the record before us, the police have offered no explanation as to why they could not have sought a Part VI authorization. We do know that but for Telus's practice of routinely storing subscribers' messages, the police would have had no option other than to obtain such an authorization since what they were seeking was prospective authorization for the daily production of future text messages. Indeed, that is what they do — ostensibly without any trouble — with the other major telecommunications service providers, such as Rogers and Bell, who do not store text messages as Telus does. 66 Nonetheless, the question remains whether the law requires that the policeshould have sought such an authorization. At the hearing of this appeal, Crown counsel argued thatHa conclusively resolves the issue in the negative: [A]s the Ontario Court of Appeal pointed out in Ha, the test for determining whether a general warrant can be issued focuses on the nature of the investigative technique in question, not the nature of the investigative objective. The search of the Telus database for future records is a technique that'squite distinct from the seizure of a telecommunication. I mean, mechanically, the police were doing different things. It was a completely different process. [Emphasis added; transcript, at pp. 94-95.] 67 With respect, I cannot agree. To adoptHa in this way is to turn a blind eye to the substance of the search — and to common sense. What the police did in this case — securingprospective authorization for the delivery of future private communications on a continual, if not continuous, basis over a sustained period of time — was substantively equivalent to what they would have done pursuant to a Part VI authorization. It was thus, at a minimum, tantamount to an intercept. 68 I accept the Crown's contention that, as a technical matter, what occurred here was different from what would occur pursuant to a Part VI authorization. I do not accept, however, that that fact is determinative in light of the identical privacy interests at stake. But for the 24-hour time delay, the investigative techniques were the same. Indeed, if the Crown's logic is to be accepted, a general warrant could still issue had the delay been 24 minutes or, for that matter, 24 seconds.[FN2] To draw a line between what was authorized here and a Part VI intercept on the basis of such a theory is to draw "an artificial and unrealistic distinction":R. v. Lyons, [1984] 2 S.C.R. 633 (S.C.C.), at p. 643. 69 As a result, the facts of the case at hand are distinguishable fromHa. Both Ha and R. v. Brand, 2008 BCCA 94, 229 C.C.C. (3d) 443 (B.C. C.A.) (sub nom. R. v. Ford), the other appellate authority interpreting s. 487.01, concerned unsuccessful attempts by the target of a search to invalidate a general warrant on the basis © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 23 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 that the police could have sought multiple conventional warrants. In Ha, the police were investigating a suspected drug lab. They sought the flexibility to enter the property covertly at any time within a two-month period and to engage in a broad range of evidence gathering activities therein, including photographing, taking chemical samples, and fingerprinting items. Likewise, in Brand, the police were investigating a large marihuana grow operation and needed covert access to multiple properties in order to verify the presence of drugs without compromising other aspects of their investigation. Fundamentally, in each instance, the request for covert access and temporal flexibility made clear that thesubstance of the investigative techniques for 70 Explaining why the search sanctioned by the general warrant inHa was thus substantively different from one involving multiple conventional warrants, MacPherson J.A. said: In this case, the police sought to obtain authorization to conduct an unlimited number of covert entries and searches on private property over a two-month period. Except for s. 487.01 of the Code, there is "no other provision in ... any other Act of Parliament" that could potentially accomplish this goal. [para. 43] Those are not our facts. Here, the police sought, in the reviewing judge's words, authorization for "the investigative technique or procedure of prospective and daily production of text messages" (para. 75). The simple fact is there is a provision that substantively provides for this technique. It is known as Part VI. 71 In emphasizing the importance of looking beyond the form of a search technique to uncover its true substance, a further point bears noting. In both Ha and Brand, if the police wanted the evidence, they had a choice between a series of conventional warrants or a general warrant. If the police sought a general warrant, they would have to meet the requirements of s. 487.01 which are deliberately stricter than those for a conventional warrant. For example, the requirements that a general warrant can only be issued by a judge, not a justice of the peace, and that issuance must be in the best interests of justice themselves serve to ensure that the general warrant remains a rearguard warrant of limited resort. 72 In other words, by dint of its more stringent requirements, the general warrant contains a disincentive to its everyday use. In Ha and Brand, where the only alternative was a series of conventional warrants, reliance on a general warrant did not provide the police with an easy way out from the rigours of a more demanding legislative authorization — the general warrant was the more demanding legislative authorization. Thus, in these cases, it is harder to see how the general warrant provision might be misused. 73 In this case, by contrast, the police actually had a choice between a Part VI authorization and a general warrant.[FN3] The incentives before the police were thus markedly different than they were inHa. Though both the general warrant and the Part VI provisions require that the issuing judge be satisfied that the order is in the best interests of justice, Part VI alone imposes several further requirements in the interest of protecting the right to privacy: 1. An authorization under Part VI is available only for certain offences (s. 183). 2. Only individuals designated by the Minister of Public Safety and Emergency Preparedness or Attorney General may seek a Part VI authorization (ss. 185(1), 186(6)). 3. A Part VI authorization is available only where "other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures" © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 24 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 (s. 186(1)(b)). 4. A Part VI authorization must state the identity of persons whose private communications will be intercepted, the place at which they are intercepted, and the manner of the interception (s. 186(4)(c)). 5. The Attorney General or Minister is required to provide notice to the target of the authorization within a certain timeframe (s. 196). 6. The Minister is required to make an annual report to Parliament concerning the number of applications made for authorizations under Part VI and the details thereof (s. 195). 74 Consequently, in this case, a narrow focus on the mechanics of the search is to miss the forest for the trees. The general warrant must be analogized to a Part VI authorization if one is to appreciate the actual incentives before the police. A mechanistic interpretation of the "no other provision" requirement cannot hold because, put bluntly, a general warrant can prove easier to obtain than a Part VI authorization. For that reason, one can hardly fault the police for seeking a general warrant instead of a Part VI authorization. There was little to be lost (a delay in the receipt of the data sought, which may well have had little consequence) and much to be gained (no requirement to meet the onerous burdens Parliament has chosen to impose under Part VI). 75 The facts suggest that this is precisely what has happened as a consequence of Telus's unsuccessful challenge of the warrant in this case. The affidavit of Det. Sgt. Prosser states that the police seek general warrants only in those "rare circumstances" requiring access to text messages "under a more immediate timeline" (A.R., at p. 116). And yet, though Telus received only six general warrants prior to 2010, counsel for the company informed us at the hearing of this appeal that the number has since grown to "several hundred" in light of the decision below (transcript, at p. 42). 76 The logic that led to this predictable result effectively nullifies the "no other provision" safeguard by inviting the police to distinguish an investigative technique in some manner — any manner, even if substantively immaterial — so as to avoid the rigours of a more demanding legislative authorization such as Part VI. Faced with the choice of having to seek an authorization under Part VI and being able to proceed down a less demanding path, it should be expected that the police will elect the latter — and understandably so. It follows, in my view, that the "no other provision" test must be given interpretive teeth if it is to serve its purpose of ensuring that general warrants do not become a means to avoid more onerous search authorizations. D. Summary of the Approach to the "No Other Provision" Requirement 77 The test under s. 487.01(1)(c) must consider the investigative technique that the police seek to utilize with an eye to its actual substance and not merely its formal trappings. The provision must be interpreted so as to afford the police the flexibility Parliament contemplated in creating the general warrant, while safeguarding against its misuse. As the facts of this case illustrate, there is a need for heightened judicial scrutiny where Parliament has provided an authorization for an investigative technique that is substantively equivalent to what the police seek but requires more onerous pre-conditions. 78 In so concluding, I note that in creating the general warrant, Parliament did not erase every other search authorization from the Code and leave it to judges to devise general warrants on an ad hoc basis as they deem fit. Courts must therefore be careful to fill a legislative lacuna only where Parliament has actually failed to anticipate a particular search authorization. To do otherwise would chip away at the foundation that shapes the © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 25 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 respective roles of the courts and Parliament in our system of criminal justice when individual rights and freedoms are at stake. 79 That said, I recognize, as I must, that this approach accepts a measure of uncertainty by tasking judges with the job of inquiring into the substance of purportedly "new" investigative techniques. In my view, an interpretation that is faithful to the purpose of the "no other provision" requirement in s. 487.01(1)(c) necessarily demands as much. Two practical guidelines, however, should serve to mitigate concerns that may arise. 80 First, it is important for the police to appreciate that general warrants are not warrants of general application. On the contrary, they are to be used sparingly, when the investigative technique they wish to employ is truly different in substance from an investigative technique accounted for by another legislative provision. Where uncertainty exists, the police would do well to err on the side of caution. They must know — with certainty — that general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions. 81 Second, when judges are faced with an application for a general warrant where the investigative technique, though not identical, comes close in substance to an investigative technique covered by another provision for which more rigorous standards apply, they should proceed with extra caution. At a minimum, judges should look closely at the material filed and satisfy themselves that the request for a general warrant is genuine and not merely a device to escape the rigours of another authorization provision. Where careful scrutiny establishes that a proposed investigative technique, although similar, has substantive differences from an existing technique — not simply that it is similar in substance but different in form — judges may grant the general warrant, but they should be mindful of their obligation under s. 487.01(3) to impose terms and conditions that reflect the nature of the privacy interest at stake. In doing so, they may borrow as appropriate from the conditions that Parliament has chosen to impose on the substantively similar existing authorization. 82 With these twin considerations in mind, and despite Justice Cromwell's concerns about certainty, to which I shall turn momentarily, if the police proceed in good faith and the authorizing judge proceeds with caution, it is unlikely that a general warrant issued in such circumstances will be found to be defective at trial — and even less so that evidence obtained pursuant to it will be excluded under s. 24(2) of theCanadian Charter of Rights and Freedoms. E. The Competing Approach to the "No Other Provision" Requirement 83 I have had the opportunity to read the reasons of Cromwell J., who is of the view that the "no other provision" test was satisfied in this case because the investigative technique does not meet the definition of "intercept" for purposes of Part VI. He would accordingly dismiss the appeal. Insofar as the definition of an intercept is concerned, my colleague's analysis hinges on distinguishing between the interception of a private communication (s. 184) and the subsequent disclosure of such intercepted communications (s. 193). As I have explained, I do not find it necessary to reach that question in this appeal and, for that reason, do not comment on this aspect of his reasons. 84 My colleague does, however, take issue with my interpretation of s. 487.01(1)(c) and its application to the case at hand. It is clear that my colleague and I have fundamentally different understandings not only of the "no other provision" requirement, but the proper role of general warrants more broadly. He has offered a careful analysis that warrants a response. © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 26 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 85 Justice Cromwell maintains that s. 487.01(1)(c) should be construed literally and he rejects the purposive approach I have taken, asserting that it "creates unnecessary uncertainty and distracts the issuing judge from the question of whether the technique sought to be authorized is inconsistent with the right to be free from unreasonable searches and seizures" (para. 171). According to my colleague, "predictability and clarity in the law are particularly important in the area of judicial pre-authorization of searches" (para. 172). 86 Justice Cromwell further challenges my construction of s. 487.01(1)(c) on the basis that it impermissibly adds "investigative necessity" as a further precondition to the issuance of a general warrant — that is, to obtain a general warrant, the police must be able to show that there are no other ways by which they can achieve their investigative objective. My colleague maintains that Parliament did not see fit to add such a requirement and it is impermissible for the Court to do so. 87 I propose to address each of Justice Cromwell's concerns. 88 First, for reasons that should be clear from the above, I cannot accept my colleague's literal construction of s. 487.01(1)(c). With respect, such an interpretation strips the provision of any meaning and renders it all but valueless. Writing in 1996, soon after the general warrant was introduced, the authors of a leading treatise on this subject predicted: Of the four preconditions [to a general warrant] the most difficult for investigators will be [the "no other provision" requirement], a novel provision intended to prevent this residual warrant power from becoming an easy back door for other techniques that have more demanding preauthorization requirements. [Emphasis added; Hutchison et al, at p. 16-40.3.] My colleague's approach, however, would reduce that provision to a paper tiger. 89 On my colleague's literal interpretation of s. 487.01(1)(c), any deviation — no matter how slight or insignificant — that takes an investigative technique outside the four corners of another authorization provision in the Code or an Act of Parliament is sufficient to satisfy the "no other provision" requirement. Thus, in this case, had the police sought a general warrant requiring Telus to provide copies of all stored text messages using a 24-second delay (as opposed to a 24-hour delay), I gather that my colleague would hold that the "no other provision" requirement had been met. Likewise, on my colleague's construction, had the police sought a general warrant requiring both the contemporaneous interception of text messages and a dial number recorder warrant, it would appear that this too would suffice to satisfy the "no other provision" requirement. 90 If, as my colleague reasons, Parliament truly intended that the police could satisfy the "no other provision" requirement by coming up with a hook — any hook — that would take the investigative technique outside the four corners of an existing authorization, then we are left to conclude that Parliament chose to enact an absurdity. I cannot accept any such conclusion. 91 Moreover, my colleague's focus on the breadth of the general warrant provision — breadth that I readily accept — conflates the distinct questions of what the power can do, assuming it is available, withwhen it arises. As I have already observed, the general warrant provision was not meant to erase every other authorization provision from the Code and leave it to individual judges to fashion general warrants on anad hoc basis. On the contrary, general warrants were created "to fill any potential 'gap'" (Schreiber v. Canada (Attorney General), [1997] 2 F.C. 176 (Fed. C.A.), at para. 86 (emphasis added), rev'd on other grounds,[1998] 1 S.C.R. 841 © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 27 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 (S.C.C.)), to provide a "legislative 'failsafe'" that "supplement[s] rather than supplant[s]" (Scott C. Hutchison, Hutchison's Canadian Search Warrant Manual 2005(2005), at pp. 143 and 163 (emphasis added)), to "fill an investigatory hiatus" (J. A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (8th ed. 2010), at p. 459 (emphasis added)), and to serve as a "residual power" (Hutchison et al, at p. 16-36 (emphasis added)). 92 Though little was said of general warrants in debates or committee hearings in 1993, we do know that Parliament did not get out of the warrant business after enacting s. 487.01. Multiple new authorizations have been created since then, including production orders in 2004. Existing authorizations have been amended to reflect evolving investigatory needs and privacy concerns, including the provisions of Part VI. And even today Parliament continues to consider warrant proposals introduced — and sometimes withdrawn — by the government. See, e.g., Bill C-30, Protecting Children from Internet Predators Act, 1st Sess., 41st Parl., (First Reading, February 14, 2012); Bill C-55, Response to the Supreme Court of Canada Decision in R. v Tse Act, 1st Sess., 41st Parl., (First Reading, February 11, 2013). 93 This history confirms that general warrants were to play a modest role, affording the police a constitutionally sound path for investigative techniques that Parliament had not addressed. They were thus rearguard warrants of limited resort, not frontline warrants of general application. They were meant to fill gaps, not create them. 94 In sum, ensuring that general warrants are confined to their limited role, in my view, is the true purpose of s. 487.01(1)(c). Justice Cromwell's literal construction of the provision turns that purpose on its head by inviting the police to seek judicial sanction of purportedly "new" investigative techniques on the basis of substantively meaningless distinctions. Manifestly, this approach puts a premium on form over substance. 95 My colleague takes comfort in the "best interests" clause in s. 487.01(1)(b) as an adequate safeguard against misuse of the general warrant. Parliament, he contends, enacted subsection (1)(b) to deal alone with "potential abuses of the general warrant" (para. 190). But if that is so, one might ask why Parliament enacted s. 487.01(1)(c) in the first place. 96 No doubt, the "best interests" requirement serves to prevent misuse of the general warrant. But this provision should not be interpreted as swallowing the distinct analytical question that the "no other provision" test asks. The role of each provision must be respected. First, under s. 487.01(1)(c), the question is whether there is any other provision in the Code or other Act of Parliament that actually or substantively provides for the investigative technique for which the police seek authorization. Second, under s. 487.01(1)(b), only if the first question is answered in the negative does the inquiry shift to whether issuance of the warrant is in the best interests of the administration of justice. 97 The two hypotheticals I mentioned earlier illustrate the point. I would hope that a 24-second delay and a dial number recorder warrant piggy-backed on an authorization for the contemporaneous interception of text messages would meet my colleague's definition of abuse. Why? Because both investigative techniques would presumably be seen for what they are — the substantive equivalent of a Part VI authorization. In the end, all roads lead to Rome. But the interpretation of s. 487.01(1)(c) that I endorse gives some meaning and purpose to the provision; my colleague's interpretation strips it of both. 98 Insofar as s. 487.01(1)(b) is concerned, take, as just one example, the fact that the availability of a Part VI authorization is limited to certain offences included under the definition of "offence" in s. 183. Should the police seek authorization for a search concerning an offence not included within that definition, though the "no © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 28 2013 CarswellOnt 3216, 2013 SCC 16, 356 D.L.R. (4th) 195, 294 C.C.C. (3d) 498, 100 C.R. (6th) 221, 107 W.C.B. (2d) 73, 442 N.R. 1, 304 O.A.C. 1, 279 C.R.R. (2d) 100, [2013] 2 S.C.R. 3 other provision" test would be satisfied, it would fall to an analysis under subs
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