R v Vader, 2016 ABQB 309

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 309 Date: 20160609 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Travis Edward Vader Accused (Applicant) _______________________________________________________ Consolidated Written Reasons for Judgment In the matter of the Admission/Exclusion of Text Messages of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction . 2 II. Privacy Interest and Standing . 3

III. Intercept vs Production . 4 IV. The Constitutional Validity of Criminal Code , s 487.012 . 8 V. Conclusion . 9 I. Introduction [ 1 ] In response to an application by the Crown to enter into evidence certain text messages attributed to Mr. Vader, the defence applied on April 29, 2016 to exclude from evidence text message records that were obtained from Telus by RCMP investigators under a Criminal Cod e, RSC 1985, c C-46 s 487.012, production order. The current equivalent provision is Criminal Code , s 487.014. The Crown alleges the text messages in question were sent by Mr. Vader from several different cell phones to a number of recipient numbers. An oral

summary of Parts II and III of this consolidated decision was read in Court on May 5, 2016 at 2:00 p.m.

Part IV of this consolidated decision was read in Court in the morning session of Friday, May 27, 2016. [ 2 ] In respect to the first application made on April 29, the defence argues that the text message evidence was obtained from Telus in breach of Mr. Vader’s Charter , s 8 rights, and therefore should be excluded. The core of Mr. Vader’s argument is that text messages, in any form, are subject to a high degree of privacy and that text message information may only be obtained via the

Part VI provisions of the Criminal Code , which is the part of the Criminal Code that authorizes wiretaps and other private communication intercepts. [ 3 ] Subsequently, as an alternative argument conducted entirely on the basis of written arguments, Mr. Vader also challenged the admission of this text message information on the basis that Criminal Code , s 487.012 (as it was), is unconstitutional because the Charter of Rights and Freedoms requires any electronic interception of private communications must be necessary for the investigation, and supported by reasonable and probable grounds.

As I noted when giving my oral decision on this alternative argument on the morning of May 27, 2016, this was such a late-breaking application by the defence that I directed, and all parties agreed, that this motion would be dealt with on a written basis only. On May 27, 2016 I provided an opportunity to make further oral submissions to both Crown and the defence, but that opportunity was declined. [ 4 ] On both applications, the defence sought to exclude only the content of the text message communications.

The defence does not challenge admission of other related evidence, including the times these messages were sent, and the source and destination telephone numbers and telephones. [ 5 ] Although the Charter , s 8 and constitutional validity arguments were made separately, they ultimately involve the Court deciding some of the same issues to determine the admissibility of the same evidence.

For that reason I have integrated my reasons for the separate applications into this one written decision. [ 6 ] I have divided these two sets of applications into three parts for the purpose of this consolidated written decision, and those sequential applications are as follows: 1. Does Mr. Vader have a privacy interest in these text message communications, and therefore has standing to make the Charter , s 8 applications and the s 487.012 constitutional validity argument? 2.

Is a search that targets text messages that were previously sent and are now archived an “intercept” and only authorized under Criminal Code ,

Part VI, or instead, is evidence subject to court-ordered production per Criminal Code , s 487.012? and 3. Does Criminal Code , s 487.012 offend the Charter and is therefore unconstitutional, with the effect that the Telus message records were obtained as a warrantless search? [ 7 ] Mr. Vader and the Crown take opposite positions on all three issues outlined above. [ 8 ] As noted at the May 27 session where I pronounced an oral

summary of my decision on the third issue above (now

Part IV), the issue of a s 24(2) remedy was deferred until final argument on June 22 and 23, 2016. II. Privacy Interest and Standing [ 9 ] The question of whether or not Mr. Vader has standing involves a range of complications. [ 10 ] First, Mr. Vader denies through his counsel that he sent or received any of the text messages in question, but instead argues he should have standing to challenge admission of the text messages because the Crown alleges he sent or received the messages. A second complication is that I have received evidence that Mr.

Vader received one cell phone in question from Andrea Sexsmith (the “1685 phone”), while another cell phone was registered to Lyle McCann (the “McCann phone”), and still others to third parties.

Logically, a reasonable expectation of privacy would be reduced where a person uses someone else’s telecommunication devices and services. [ 11 ] Third, the contract terms under which text messaging services were conducted by Telus (or other telecommunication service providers), and the associated privacy interests and consent for access to those communications is not established. [ 12 ] Fourth, there is an outstanding question of who has a privacy interest in a text message.

The defence acknowledges that it is well established that an accused person can only apply to exclude evidence from a proceeding based on his or her own privacy interests,

and not those of a third party: R v Edwards, (SCC), [1996] 1 SCR 128, 132 DLR (4th) 31. Though defence counsel(Mr. Whitling) in his oral submissions on May 6 sought to have the Charter applications affect all text message information, no matterthe source or recipient, the only evidence that can be potentially affected by these applications is evidence for which Mr.

Vaderestablishes a privacy interest. [13] If one were to consider text messages as analogous to a physical letter, then when a person sends a text message or letter theyare reducing or abandoning its privacy by sending that communication to someone else.

There is little question, however, that therecipient of a text message or letter would, themselves, have a privacy interest in that communication. [14] So an archived version of a ‘sent’ text message on the sender’s electronic devices would have an associated privacy interest,but the sender’s potential interest in the ‘received’ copy is less obvious, or easy to determine. A recipient might forward or share the‘received’ copy text message with a third party. The communication may be misdirected by sender error. The interplay of these interestsis discussed in R v Pelucco, 2015 BCCA 370, 376 BCAC 226.

The privacy interests of a person who sends or received text messagesfrom someone else’s cell phone is even more dubious, let alone a stolen cell phone. [15] In R v Pelucco, the majority of the British Columbia Court of Appeal considered the privacy interest associated with messagesreceived on another person’s cell phone. In that case, the cell phone had been seized by police while Pelucco and the phone’s ownerwere in the middle of arranging a cocaine purchase.

Groberman JA concluded that normally the sender of a text message has areasonable expectation of privacy in that message, however that depends on the context of the communications and the parties involved:paras 68-71. [16] R v Pelucco speaks of a presumption that text messages will remain private, however here the cell phone andtelecommunications services were purchased by someone else, i.e. the Andrea Sexsmith 1685 phone, or the cell phones belonged tosomeone else, namely the McCann phone. That subverts the normal arrangements of two private persons communicating with their ownprivate devices.

I, therefore, conclude that the R v Pelucco private communications presumption does not apply here. [17] Instead, the context in which these communications occurred is, at best, uncertain. Mr. Vader declined to provide evidence ina voir dire setting on a number of occasions in relation to his privacy interests. He could have entered that testimony in a voir dire, butdid not do so. The onus to prove a breach of the Charter on a balance of probabilities falls to the party making the allegation.

As Côté JAobserved in R v Biscette, 1995 ABCA 234 at para 4, 99 CCC (3d) 326, affirmed (SCC), [1996] 3 SCR 599, 203 NR244 “... [T]he accused must adduce evidence about the alleged Charter breach; he bears the onus of proof.” Mr. Vader has not done so,and therefore I conclude he has not met his onus to establish a reasonable privacy interest in any of the text messages tendered foradmission by the Crown. It follows that he does not have standing. [18] This is the first of the bases on which I reject Mr. Vader’s applications to exclude the Telus text message data. III.

Intercept vs Production [19] The Supreme Court of Canada in R v TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3 made it clear that a courtmay only authorize the capture of future text messages via a court order under

Part VI of the Criminal Code. However, that is not whathappened here. The disputed text messages in question were text messages that had been sent before a warrant was issued. These were‘past’ text messages that were archived by Telus, and then were retrieved via a s 487.012 production warrant. [20] There is inconsistent case law in Alberta on whether ‘past and recorded’ text messages should be treated differently from‘hypothetical future’ text messages.

In R v Croft, 2013 ABQB 640, 573 AR 339 Burrows J concluded that a search which obtains a ‘pastand recorded’ text message from a telecommunication service is an interception of a private communication.

Justice Simpson came to thesame conclusion in R v Hoelscher, 2016 ABQB 44, that obtaining a ‘past and recorded’ text message is an “intercept”, stressing: 1. that the technology of text messaging will always mean that a warrant that authorizes ‘hypothetical future’ text messages willnever be ‘real time’ but instead that any text message intercepted will always undergo some form of storage prior to its being delivered tothe police (para 100), 2. the high privacy interest in text messages is the same for both ‘future’ and ‘past’ text messages, because the senders andrecipients of a future, unreceived, or an unread text message have no opportunity to delete that information (paras 115-118), and 3. whether ‘past and recorded’ text messages even exist reflects policies of a cell phone service provider, and different persons inCanada should not be subject to different standards of privacy depending on the particular technical solutions used by a particulartelecommunications company (paras 122-135). [21] Counsel for Mr.

Vader argues I should adopt the reasoning in R v Hoelscher because it is “by far the most persuasive analysison this subject”. [22] The opposite conclusion was reached in a number of Alberta and British Columbia appeal court decisions: • R v A.J.B., 2015 BCCA 126, 368 BCAC 294, • R v Webster, 2015 BCCA 286, 374 BCAC 129, leave denied [2015] SCCA No 376, • R v Didechko, 2015 ABQB 642, 27 Alta. LR (6th) 290, adopting R v A.J.B., • R v Pazder, 2015 ABQB 493, 21 Alta LR (6th) 130, and • R v Cuthill, 2016 ABQB 60, adopting R v A.J.B.

[23] R v A.J.B. at paras 46-47, 50-51 provides the basic reasoning followed in the subsequent cases: The distinctive feature of the police investigation discussed above is that they interject themselves in the communication process byusing an investigative technique that comes between the sender and receiver of a message. As I discuss below, and as Moldaver J.observes in his reasons in Telus, this is exactly the type of technique that

Part VI authorization was meant to encompass. Thisinvestigative technique, however, is different from the case where the police seek to obtain a stored electronic record of a text messageafter it has been sent or received. The detailed requirements found in

Part VI exists to address the fact that the evidence sought to be acquired by the police has not comeinto existence at the time that the judicial authorization for its acquisition is being sought ... Indeed, the constitutionality of

Part VIderives from the safeguards that are imposed by the role of the judge granting the authorization, which exist because of the danger thatthe interception of private communications could easily transform into a fishing expedition ... Put simply, it is inherent in the nature ofPart VI authorization that the investigative technique to be utilized by the police is prospective, which requires a distinct form of judicialauthorization in comparison to other search warrant provisions. In my view, applying

Part VI to evidence already in existence is amisapprehension of the form of authorization provided for in that

section of the Code. ... As I have said, the acquisition of stored, historical communications is not, and cannot be, prospective. As a result, it is outside the ambitof

Part VI of the Code to require that existing communications stored in electronic form be authorized under that section. In my view,requiring

Part VI authorization for acquisitions of evidence already in existence is inconsistent with the law of search and seizure inCanada. Belcourt’s submission, taken to its logical extension, would require the police to obtain

Part VI authorization for any acquisition ofprivate communication in any circumstance, regardless of how far in the past it had been made. In my opinion, a fair reading of JusticeAbella’s reasons does not support such an expansive proposition. As I indicated above, her analysis was carefully circumscribed to thequestion of the prospective acquisition of messages, which was, moreover, the principal issue before the Court. [Emphasis added.] [24] R v Pazder is also helpful, since Germain J concludes that whether “intercept” should have a broad or narrow

interpretation isalso considered in light of R v McQueen, (AB CA), [1975] 6 WWR 604, 25 CCC (2d) 262 (Alta CA), which stressed“intercept” means to intervene in, interrupt, or intrude. Justice MacLeod in R v Cuthill makes the same distinction: para 15. [25] Beyond that, Justice Germain simply observes that there is no logical distinction between a ‘past and recorded’ message andother preserved data, such as notes, medical information, or any other electronic information. Parliament has set up different schemes forsearches that target existing evidence, data or physical, vs future communications.

Both have safeguards that are appropriate to the formand extent of privacy intrusion. [26] I agree, and note it is not difficult to come up with strange results by applying the reasoning in R v Hoelscher outside the textmessage context. The distinction in R v Hoelscher appears to be that an elevated level of privacy is appropriate when a communicationcan be destroyed (a text message) or is otherwise transient (a telephone call).

However, the problem is that ‘destructible’ communicationscan emerge in many contexts, and the idea that communications which have not been potentially subject to recipient destruction have anelevated privacy interest results in particularly odd consequences. For example, what if police execute a search warrant on the residenceof a suspected ‘dial-a-doper’, and that warrant authorizes the investigators to seize and search communications devices and computersand their contents. Would an unread email located on a computer be an “intercept”? A unheard message on an answering machine orservice?

These messages clearly have an associated privacy interest for the recipient, and also potentially the sender: R v Pelucco. Ineach case the unread or unheard message has not reached its ‘destination’, and in fact has been blocked from that by the search andseizure. This meets the language of “intercept” in R v McQueen. The ‘delay’ is a consequence of the mode of technology in question;had the alleged ‘dial-a-doper’ used a ‘webmail’ service, then there would be nothing on the computer to seize. [27] The schemes of

Part VI intercept warrants vs s 487.012/487.014 production orders and other search and seizure warrants arevery different. Justice Wilson in R v Siggelkow, 2014 ABQB 101 at paras 97-98, 123 WCB (2d) 128 identifies this very issue in relationto emails located on a computer. These are indeed communications, but the fact they are recorded communications means theiracquisition by government authorities falls into a different privacy protection and court supervision scheme. [28] The correct approach to the

interpretation of legislation is well established by the Supreme Court of Canada: Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 SCR 27, 154 DLR (4th) 198, most recently cited Canadian Imperial Bank ofCommerce v Green, 2015 SCC 60 at para 50, [2015] 3 SCR 801: ... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. [29] The courts should not interpret legislation in a manner that ‘breaks’ the internal operation of legislation, as to do so is anabsurd result. Returning to the hypothetical dial-a-doper search, government and police investigators are not required to be prescient andsomehow be able to divine which of the several very different Criminal Code search provisions apply when they attempt to search forprivate communications.

It would be nothing more than guesswork to predict whether communications on a particular device or servicewere received and voluntarily not destroyed, and therefore subject to ‘conventional’ searches for property or evidence, or were receivedbut unread/heard communications that are instead “intercepts” that attract a higher privacy interest and are therefore subject to the PartVI procedures. [30] Creating a distinction on this point is an absurd result, particularly since Parliament and many court judgments have identifieda clear and logical division for law enforcement and government investigators to follow:

1) capture of future and hypothetical communications are “intercepts” and conducted by Criminal Code,

Part VI. 2) suspected existing evidence and information which have a privacy interest may be searched for, produced, and seized whereauthorized by Criminal Code warrant procedures. Each has its own evidentiary and safeguard thresholds and mechanisms that are tailored to the kind of privacy interests in play. [31] In this case there is an even more fundamental issue. I conclude that obtaining the text messages from Telus cannot be aninterception per Criminal Code, s 184.

That provision makes intercepting a “private communication” an indictable offence: 184(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a privatecommunication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. [32] Subsection 184(2) then creates a number of exceptions. One is where the interception is authorized (Criminal Code, s 185), ormade pursuant to Criminal Code, s 184.4. This permits court-ordered interception. However, ss 184(2)(

c) and 184(2)(

e) permit lawfulinterception of communications services and computer communications where that interception is used for performance or mechanicalpurposes, or is a part of the service. Further, section 184(2)(

a) permits interception where the source or recipient of the communicationconsents to that interception. [33] Interception is “by means of any electro-magnetic, acoustic, mechanical or other device”: Criminal Code, s 184(1). Who used“electro-magnetic, ... mechanical or other device” means to intercept the text messages? Telus.

I have received no evidence or allegationsthat Telus’s interception of the text messages was either made without express or implied permission (Criminal Code, s 184(2)(a)), or notconducted as part of the operation of the text message infrastructure (Criminal Code, ss (184(2)(c), 184(2)(e)). [34] The RCMP investigators in this case did not intercept the text messages. Telus did, and the defence does not argue that Telusdid so unlawfully. The RCMP investigators did not cause Telus to intercept the text messages.

Those interceptions were either made withthe consent of the cell phone operators as part of their contracts with Telus, or the intercepts were an aspect of the operation,maintenance, or monitoring of the text message telecommunications process. [35] I therefore conclude the allegedly unlawful interception by the RCMP was no interception at all, and so the text messages arenot private communications subject to Criminal Code,

Part VI. That is yet another reason to reject Mr. Vader’s application to exclude thetext message data as being obtained as a breach of Mr. Vader’s Charter, s 8 rights. The first application to exclude text messages isdismissed. IV. The Constitutional Validity of Criminal Code, s 487.012 [36] The Defence’s May 11, 2016 written submissions of the defence in relation to the constitutional validity of Criminal Code, s487.012 argues conventional search warrants are not a constitutional basis for searches that recover evidence such as the Telus textmessage data.

The defence argument is that the degree of intrusion into private communications is such that a valid text messageinformation search cannot be based on suspicions and that the Crown must prove that a search of this kind is necessary for aninvestigation. [37] The Crown argues this is not the law, but in any case that Mr.

Vader is blocked from pursuing this application because helacks standing, and as a general principle of law that “... a court should not decide a constitutional issue when the case can be disposed ofotherwise.” The Crown also characterizes this application as “a blatant collateral attack”. [38] First, I do not think the legislation validity application is actually a true collateral attack, rather it is one of two branches bywhich Mr. Vader may seek to have the Telus text data excluded, on the basis that: 1. the RCMP used the wrong Criminal Code provision, s 487.012, vs 2.

Criminal Code, s 487.012 should be struck out or read down as it breaches Charter rights in a manner that cannot be saved byCharter, s 1. [39] The results of these two alternatives are the same: the Telus text message data is potentially excluded, but I conclude thesetwo alternatives involve substantially different analyses. One says the RCMP used the wrong provision, the other argues there was novalid legislation to permit a search warrant that would recover the Telus text message data. [40] I decline to conduct the second or constitutional analysis. I have found Mr.

Vader lacks standing to pursue this applicationbecause he has not established a privacy interest in the text message information. Second, Mr. Vader has chosen not to advance evidenceor testify in a voir dire setting as to how he is linked to the Telus text message data. This leaves the Court faced with a “factual vacuum”.In Danson v Ontario (AG), (SCC), [1990] 2 SCR 1086, 73 DLR (4th) 686, Sopinka J explained that one sometimesneeds “a proper factual foundation” before making a decision on the validity of impugned legislation.

As Cory J observed in MacKay vManitoba, (SCC), [1989] 2 SCR 357 at pp 361-362, 61 DLR (4th) 385: A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe theCharter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out.

Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants'position. [41] Therefore I will not continue to investigate the argument of the defence on this issue and this second application to excludetext messages is dismissed.

V. Conclusion [ 42 ] Mr. Vader’s applications are denied, and the disputed text messages are admitted into evidence on an unconditional basis. Heard orally on the 29 th day of April and the 6 th day of May, 2016; and on the basis of written argument filed by the Crown and the defence. Pronounced orally at the City of Edmonton, Alberta on the 5 th and 27 th days of May, 2016. Consolidated written reasons on both applications, dated at the City of Edmonton, Alberta this 9 th day of June, 2016. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr.

Nathan Whitling (Beresh Cunningham Aloneissi O'Neill Hurley) for the Accused (Applicant) Mr. Ashley Finlayson, Q.C., and Ms. Eman Joumaa (Crown Prosecutors - Specialized Prosecutions Branch) for the Crown (Respondent)