R v Hoelscher, 2016 ABQB 44

Court of Queen ’ s Bench of Alberta Citation: R v Hoelscher, 2016 ABQB 44 Date: 20160122 Docket: 130486905Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Jordan Michael Hoelscher Applicant Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction on publication ended September 16, 2016.

Corrected judgment: A corrigendum was issued on February 1, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _____________________________________________________ Reasons for Judgment on the Voir Dire of the Honourable Mr. Justice E.J. Simpson _______________________________________________________

Table of Contents Introduction . 3 Reasonable and Probable Grounds supporting Production Orders and Search Warrants . 3 Facts . 3 Issue . 4 Decision . 4 Parties’ Positions . 4 Law .. 5 Review of an Authorization . 6 Criminal Code Requirements for a Production Order 6 Standard of Reasonable and Probable Grounds . 6 Confidential Informants . 7 Analysis . 7 Conclusion . 10

Part VI Warrant or Production Order for Recorded Text Messages . 10 Background . 10 Facts . 11 Issues . 12 Decision . 12 Position of the Parties . 12 The Crown’s Position . 12 The Accused’s Position . 12 The Law .. 13 Analysis . 14 The Purpose of

Part VI . 14 Does

Part VI Include Historic Text Messages in the Definition of “Intercept”? . 15 The Privacy Interest in Historic Text Messages . 17 The Process Used by Service Providers Cannot Alter Parliament’s Intended Protection for Private Communications . 18 Conclusion . 19 Introduction [ 1 ] The Applicant, Jordan Michael Hoelscher, stands accused on a five count indictment regarding trafficking cocaine, conspiracy to traffic cocaine and participating in a criminal organization.

He brings an application for Charter remedies in relation to a number of alleged breaches of his Charter rights. [ 2 ] He also filed a Constitutional Notice asking the Court to declare that the former s. 487.012 of the Criminal Code , RSC 1985, c C-46 violates s. 8 of the Charter on the basis that it is overbroad and allows production of private communications, including private text messages, without the constitutional protections contained in

Part VI of the Code . [ 3 ] This Court previously heard Mr. Hoelscher’s applications pertaining to his right to disclosure and his right to cross-examine the affiant of three Informations to Obtain (ITO). The Court issued a written decision on the disclosure issue, and an oral one on the

amplification of the three ITO after the Crown and defence agreed to cross-examination on specified paragraphs. [ 4 ] There remain a number of alleged Charter breaches and the Constitutional issue. Counsel agreed to adjourn their argument with respect to s. 24(2) of the Charter pending the rulings on these issues. As the decisions on some issues will impact later rulings, this decision will only address:

a) whether a review of the October ITO reveals sufficient grounds to issue a production order and;

b) whether the police require a

Part VI Criminal Code warrant rather than a production order to obtain text message content retained by Telus Communications Company (Telus), and related details. [ 5 ] Once the Crown and Defence consider these rulings they can advise as to what, if any, arguments they might wish to make in addition to those already made on the remaining alleged breaches and the Constitutional question, and when they wish to proceed with their submissions on s. 24(2). Reasonable and Probable Grounds supporting Production Orders and Search Warrants Facts [ 6 ] During an investigation of Mr.

Hoelscher, the Red Deer RCMP obtained production orders for text messages on October 12, 2012 and November 9, 2012 based on two ITO sworn on October 12, 2012 and November 9, 2012.

All were sworn by Constable Joshua Matthies. [ 7 ] The October production order required Telus to produce text messages and other details with respect to cellular telephone numbers 587 679-0221 and 403 896-3778 for the period from April 1, 2012 to October 22, 2012. [ 8 ] The November production order required Rogers Communications (Rogers) to produce text messages and other details regarding cellular telephone number 403 848-0995 for the period from May 1, 2012 to November 8, 2012. [ 9 ] Both Telus and Rogers complied and copies of their data became exhibits in this hearing.

Telus supplied the written content of the text messages as the company retained the content for billing purposes for 150 days. Rogers did not retain the written content and therefore provided only the other details ordered to be produced such numbers as dates, rates, times and subscriber information. [ 10 ] The text messages obtained from the execution of the production orders became part of an ITO sworn on December 19, 2012.

On the strength of the December ITO, the RCMP obtained a Search Warrant to search three residences in Red Deer. [ 11 ] Copies of the production orders and search warrant became Exhibits VD2-16 and VD2-17 respectively. [ 12 ] Counsel for Mr. Hoelscher examined Cst. Matthies on certain paragraphs as agreed by the Crown and Defence. I issued a ruling on October 26, 2012 with respect to the amplification of the ITO. The ITO as amended became Exhibits VD2-18, 19 and 20. Issue Did the ITO Contain Sufficient Grounds to Support the Production Order Granted on October 12, 2012?

Decision [ 13 ] The ITO provided sufficient evidence for the granting of the Production Order. Parties’ Positions [ 14 ] The defence argues that the October ITO contains only information from confidential informer A with respect to the commission of the offence. This informer, the defence argues, provided so little detail and source information that it is unreliable. The only corroboration pertains to the black Navigator and the two phone numbers provided by the informer.

The defence argues that the overall information is not credible, corroborated or particularly compelling. [ 15 ] The defence points to paragraph 113(a)(ii-iv), noting Cst. Matthies had known confidential informer A for about seven months at the time of the swearing of the ITO. Although informer A had provided information on over 25 occasions, it appears that on only one occasion did it result in a seizure of illegal drugs and proceeds of crime.

Defence counsel submits this is equivocal: it could mean that information provided on all 25 occasions led to only one seizure, or that information provided on only one occasion led to a seizure.

[16] Further, paragraph 13(a)(vi) provides: “Confidential informant A has never provided information that he/she believed to befalse or misleading”. Defence counsel submits this is virtually meaningless, as Cst. Matthies could not know what confidential informerA believed. [17] With respect to paragraph 13(a)(vii), although informer A might have told the police his information was firsthand,secondhand or merely gossip, Cst. Matthies himself did not provide information as to whether the information in the ITO was firsthand,secondhand or gossip. [18] Counsel for Mr.

Hoelscher also reminded the Court that information such as a vehicle description, in this case a blackNavigator, is of little corroborative value as it is easily available to any member of the public in Red Deer. [19] He argues there is no corroboration from the police or any other source with respect to the commission of the offence referredto in paragraphs 17 and 18. [20] With respect to paragraph 20, he argues the affiant showed a cavalier attitude with respect to phone number 403 896-3778.Unlike the information provided with respect to cell number 587 679-0221, the ITO as amplified does not connect 403 896-3778 to thetrafficking of drugs. [21] Regarding paragraph 20(efg), counsel notes this information came from a paid informant with a minimal track record.

Again,Cst. Matthies did not indicate whether this information was firsthand, secondhand or rumor. Furthermore, the only corroboration wasthat Mr. Hoelscher drove a black Navigator, and the cell number 587 679-0221 was connected to him through his sister. The number 403896-3778 was registered to an unknown person, Jason Steman, only somewhat associated to Mr. Hoelscher. [22] The defence raises similar concerns with respect to confidential informer B in paragraph 13.

Although informer B hadprovided information on 10 occasions, it appears the information was used in only one investigation to obtain judicial authorizations.Further, Cst.

Matthies did not depose to the results of the judicial authorizations. [23] Defence counsel argues the information from confidential informer B set out at paragraph 25 is limited and amounts merely toa bare allegation. [24] The defence submits that the information gathered by the police amounts to little more than a phone number connected to theaccused’s sister and a truck connected to both Jason Steman and Rick Fletcher. [25] The Crown submits the information from the confidential informants was corroborated, and the entirety of the informationrevealed sufficient grounds.

Law Reasonable Search [26] The Supreme Court in R v Collins, (SCC), [1987] 1 SCR 265, [1987] SCJ No 15 held that a search isreasonable if: 1) it is authorized by law; 2) the authorizing law is reasonable; and 3) the manner in which the search was conducted was reasonable.

Review of an Authorization [27] A court reviewing the sufficiency of an authorization for a search must determine whether there was reliable evidence thatmight reasonably be believed on the basis of which the authorization could have issued: R v Araujo, 2000 SCC 65 at para 54, [2000] 2SCR 992. [28] The reviewing court does not determine if it would have issued the authorization, but whether there was credible and reliableevidence to permit the authorizing Justice of the Peace or Judge to find reasonable and probable grounds to believe that an offence hadbeen committed and that evidence of the offence would be found at the specified time and place: R v Morelli, 2010 SCC 8 at para 40,[2010] 1 SCR 253. [29] The reviewing court undertakes its review of the ITO after excluding erroneous information and adding any amplificationevidence: Morelli at para 41.

Criminal Code Requirements for a Production Order [30] The requirements for granting of a production order under the Criminal Code at the time of the issuing of the two productionorders in this case were found in s. 487.012(3) and (4): 487.012(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing informationon oath in writing, that there are reasonable grounds to believe that

(

a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (

b) the documents or data will afford evidence respecting the commission of the offence; and (

c) the person who is subject to the order has possession or control of the documents or data. 4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including termsand conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyeror a notary and their client. [31] The Court is bound by R v Fedossenko, 2014 ABCA 314, [2014] AJ No 1046, leave denied [2014] SCCA No 516.

Section s.487.012(3) does not require the police to have reasonable and probable grounds to believe an offence was in fact committed. However,the majority of the Court of Appeal in that decision did not expressly decide the constitutionality of that provision. For the purposes ofthis application, counsel agree the test with respect to ss. 3(

a) is reasonable grounds to believe rather than a reasonable suspicion. Standard of Reasonable and Probable Grounds [32] The evidentiary standard of reasonable grounds to believe requires something more than mere suspicion but less that the civilstandard of proof on the balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para114, [2005] 2 SCR 100. It is a standard of “reasonable probability” or “reasonable belief” rather than “proof beyond a reasonable doubt”or “prima facie case”: R v Debot, (SCC), [1989] 2 SCR 1140 at 1165, [1989] SCJ No 118.

Confidential Informants [33] The Court must address three issues outlined in Debot at 1165 in weighing whether information received from a confidentialinformer supports reasonable grounds: 1. Was the information with respect to the commission of a criminal offence compelling? 2. Was the source credible? 3.

Was the information corroborated by the police? [34] The Court must consider whether the informant's tip contained sufficient detail to ensure it was based on more than mererumour or gossip. [35] Corroborating information does not necessarily have to relate to the alleged crime itself in order to substantiate the reliabilityof the informant's information: R v Caissey, 2007 ABCA 380 at para 25, [2007] AJ No 1342, aff'd 2008 SCC 65, [2008] 3 SCR 451. [36] The Court must consider the totality of the circumstances.

The three Debot factors do not form three separate tests; weaknessin one may be compensated by strength in the others. Analysis [37] This Court must consider the totality of the evidence available with respect to the production order granted October 12, 2012,in order to determine whether there was reliable evidence that might reasonably be believed on the basis of which the authorizing judgecould have issued the Production Order.

The applicable standard is reasonable probability. [38] Two offences were alleged in the October ITO: possession for the purpose of trafficking cocaine, and possession of propertyobtained by crime. The information available to the authorizing judge came only from informer A. Accordingly, it is necessary toconsider whether the information is compelling, credible and corroborated. [39] Informer A provided the majority of the information to Cst.

Matthies in October 2012, supplementing information he hadpreviously provided in May and June 2012. [40] Paragraphs 18 and 20 establish the alleged offence of the possession and trafficking of illegal drugs, when considered in lightof the comments of the investigator. The ITO also provides information with respect to large sums of cash in the possession of anindividual known to the informer as “Jordan”. Informer A connects Jordan to a safe house and three other individuals with whom Jordansells drugs. Informer A identifies an amount and type of illegal drug, being a half-pound of cocaine.

He connects two cell phonenumbers, 587 679-0021 and 403 896-3778, to Jordan. He states that Jordan uses the first number for selling drugs. Regarding the secondnumber, he can only state that Jordan uses it. [41] Counsel for the defence took the position the information with respect to the second number is insufficient to connect it todrug trafficking. However, considered in the context of the entire ITO, the word “using” supports a reasonably probable inference that ittoo was connected to Jordan’s drug trafficking activities. [42] Cst. Matthies detailed his experience at paragraph 30.

In particular, he indicated that drug traffickers often use text messagingthrough cell phones to do business. [43] I find Informer A provided compelling evidence that Jordan was involved with others in trafficking drugs, was making use ofone cell phone for the trafficking of drugs, and it was reasonably probable that he was using a second cell phone for the same purpose. [44] Having found the information to be compelling, I must go on to consider whether it was credible. Cst. Matthies did not explain

whether the information coming from informer A was firsthand or secondhand knowledge, or merely rumor. The information provided at paragraph 13 provides general information with respect to informer A’s reliability. Informer A provided information on 25 occasions, some of which led to the seizure of illegal drugs and proceeds of crime. Although informer A was paid for the information, he knew he would be paid nothing if the information he provided was not truthful and reliable. This provided a motive for informer A to be truthful in order to be paid in the present, and to be used again in the future.

This incentive and informer A’s past conduct in providing information leading to the seizure of drugs and crime provide a degree of reliability. [ 45 ] Further, there is significant detailed corroborating information supporting the credibility of informer A with respect to the allegation of trafficking drugs and the phone numbers provided. [ 46 ] In paragraph 25, confidential informer B connected Jordan with an individual known as “Monkey”, whose real name is Shane Connolly. This corroborates paragraph 20(

h) wherein informer A connected Jordan to Monkey and informed that the two were selling drugs. Defence counsel alleges an inconsistency in that informer A referred to Jordan as selling drugs with Monkey, whereas confidential informer B stated Jordan works for Monkey. The phrase “works for” specifies the relationship working between Jordan and Monkey. I find no inconsistency. [ 47 ] Cst. Matthies’ personal observation detailed in paragraph 29 corroborates the information provided by informer A with respect to the type of vehicle operated by Jordan. Further information provided by Cst.

Matthies in that paragraph connects that vehicle to the residence of Mary-Jo Hoelscher, an individual with the same surname as Jordan Hoelscher. [ 48 ] Cst. Matthies noted the vehicle at 32 Adamson Avenue, which he connected to Jordan Hoelscher by way of a PROS check. Indeed, he had conducted a check at the residence while Jordan Hoelscher remained on release for previous alleged criminal conduct and required to reside at the residence. Cst. Matthies also noted that a prior search of Jordan Hoelscher’s residence at 32 Adamson Avenue and 29 Shaw Close resulted in seizure of drugs, including 0.8 pounds of cocaine.

Jason Steman and Jordan Hoelscher were together at one of the residences searched. [ 49 ] Defence argues the information with respect to the black Navigator is of little corroborative value as it could be known to anyone. Certainly Cst. Matthies cannot be faulted for including this information in the ITO as part of full and frank disclosure. The fact that some of the information provided by informer A could have been known by others does not mean it should not be included in the ITO nor that it should not be given any weight in assessing corroborative elements. [ 50 ] At paragraph 15, Cst.

Matthies referenced previous alleged criminal conduct of Jordan Hoelscher involving the possession of .8 pounds of cocaine, an illegal drug, Ecstasy, and approximately $10,000 cash. While only amounting to allegations, the circumstances surrounding this allegation do provide some corroboration of information provided by confidential informer A that Jordan Hoelscher was trafficking cocaine in October 2012. [ 51 ] The information at paragraph 15 connects Jordan Hoelscher to the address of 32 Adamson Avenue.

Subscriber information for cellular telephone number 587 679-0021 connects that number to his sister, Christina Hoelscher, who also resided at 32 Adamson Avenue. [ 52 ] Paragraphs 21 through 24 support the information at paragraph 20(

a) where confidential informer A advised that Jordan Hoelscher is also using a second phone number, 403 896-3778. [ 53 ] Cst. Matthies deposed at paragraph 22 that drug traffickers often register phone numbers under a fictitious name or another person’s name.

At the time he swore the ITO, he knew that: - subscriber information connected cellular telephone number 403 896-3778 to a Rick Fletcher at a non-existent address in Sylvan Lake, Alberta - there was an address very close to it associated with a numbered company, 948760 Alberta Limited - the numbered company was associated to a motor vehicle parked in the driveway of Jason Steman’s residence - the results of a PROS query for the number also associated it to Jason Steman at 29 Shaw Close on March 16, 2011 - a corporate search associated the numbered company back to Rick Fletcher at an address of 18 Fieldstone Way, Sylvan Lake - this address did not match the address of the phone number listed for Rick Fletcher in paragraph 21(d). [ 54 ] In this case, a phone number was associated with two different individuals, Steman and Fletcher, and a numbered company.

Cst. Matthies provided information to the effect that drug traffickers will use phone numbers under another person’s name or fictitious names. It would be reasonable for the authorizing judge to conclude that a reasonable probability existed that Jordan Hoelscher was using others’ names for a cell phone he was using.

The fact that Jason Steman had been arrested with Jordon Hoelscher in May 2011 and now showed up as being associated to this phone number supports this inference. [ 55 ] This information does not connect directly to informer A’s information that Jordan was involved in trafficking drugs, but it does corroborate some of his information and therefore adds to his reliability. [ 56 ] Further information supports the credibility and reliability of confidential informer A. This is information which would likely

only known by an individual with knowledge of the activities of Jordan Hoelscher, and not by the public or indeed even a larger group of associates. [ 57 ] The information with respect to the color and type of his motor vehicle would be known to a number of people and indeed might be known to the public at large. The reference to a legitimate job would also be available a large circle of persons.

Paragraph 16 provides a description of Jordan: he is bald and has tattoos on his neck, more information known to a larger circle of persons. [ 58 ] However, paragraphs 18 and 20 provide specific information which would be known to a much smaller circle of individuals. Informer A identified a safe in Jordan’s residence in which he kept drugs, and a safe house at 31 Shaw Close. He stated Jordan would keep the cocaine in a safe, but not for long periods of time. He knew the names of individuals associated with Jordan, i.e., Monkey, Cam, and RJ. He provided Cam’s phone number.

He provided an amount of cocaine recently in the possession of Jordan. He knew Jordon sold cocaine and pills, and had some information with respect to the sale of firearms. A drug trafficker would guard this type of information in order to avoid discovery by the police or other drug dealers. This level of detail of the information is a factor to be considered. [ 59 ] While there was less evidence supporting the issuing of a production order with respect to the second phone number, 403 896- 3778, I find that informer A’s information provided a sufficient basis to connect it to Mr.

Hoelscher through one of his associates, Jason Steman. The information with respect to various addresses, combined with Cst. Matthies’ information that drug traffickers will use cell phones registered to other persons or to fictitious persons, supported the inference that the second phone number was connected to Mr. Hoelscher.

Conclusion [ 60 ] Having considered the October ITO as amplified, I conclude that the information with respect to the trafficking of drugs and the two telephone numbers was compelling, credible and sufficiently corroborated so as to constitute reliable evidence upon which the judge could have issued the authorization. [ 61 ] Accordingly, there was evidence supporting a reasonable probability with respect to the offences alleged and the allegation that the data sought would afford evidence regarding the commission of those offences, such that the authorizing judge could have issued a production order for the information contained in cellular phone records for numbers 587 679-0221 and 403 896-3778.

Part VI Warrant or Production Order for Recorded Text Messages Background [ 62 ] Prior to April of 2013, Telus for billing purposes stored a copy of all text messages sent through its transmission service. In this case, the police acquired historical text messages, stored for this purpose, with a production order, rather than a

Part VI authorization. [ 63 ] The defence argues a

Part VI authorization is required in these circumstances, as this is an interception of a private telecommunication. The Crown argues this is not an interception, as an interception must be of future communications, not of historic ones. [ 64 ] The Supreme Court in R v TELUS Communications Co , 2013 SCC 16 , [2013] 2 SCR 3 [ R v Telus ], found that the seizure of text messages stored with a service provider, by way of a prospective authorization, constitutes an intercept and therefore requires a

Part VI authorization. The important factual elements of this case and R v Telus are essentially the same. The difference is the time at which the police sought the authorization to collect the text messages. In R v Telus , the police requested the authorization prior to the sending of text messages, while in this case the authorization was requested after the sending of the messages. [ 65 ] Therefore, the question in this case is whether the time at which the state seeks the authorization has an impact on the applicability of

Part VI. Facts [ 66 ] Debra Czerski, a Telus security analyst, explained the manner in which Telus transmitted text messages between cell phones. Her description of the storage of text messages applies only to those sent prior to April 2013, as Telus stopped storing text messages thereafter. [ 67 ] Ms. Czerski acknowledged she does not understand all of the routing with respect to text messages sent through Telus. However, for the purpose of this matter, the basic information she provided suffices. [ 68 ] Ms.

Czerski explained that when an individual types a text message and sends it, the message goes to the closest cell tower with the strongest reception. The message is then routed to a switching control centre which handles the transport of the message. Upon delivery of the message to a recipient, it transfers from the switching centre to a database owned by Telus. Telus stored the content of the message for 150 days in the database. In addition to the content of the text message, Telus stored the date, time, length, and other particulars important to Telus.

She explained Telus retained the content for billing purposes. [ 69 ] Ms. Czerski did not explain why Telus required the content of the message for billing purposes. No one asked her, in chief or cross-examination, to explain how Telus could bill a customer for a voice transmission without recording the content of the transmission,

but required the text message content for the billing of text messages. She knew, however, the practice of maintaining the content of text messages for billing ceased as of April 2013. [ 70 ] Ms. Czerski explained that when a message could not be delivered to a recipient, the system continued attempting delivery for five days, after which the system deleted the message. The system provided no notification to the sender of the failure to deliver. Accordingly, the sender would not know the message remained undelivered. [ 71 ] Ms.

Czerski emphasized that the database only retained the content of messages sent and received. She testified the Telus database retained a copy of the message even if the originator, recipient, or both deleted it. After the passing of the 150 days, Telus deleted it. [ 72 ] Pursuant to an Information to Obtain a Production Order under

Section 487.012 of the Criminal Code , the Royal Canadian Mounted Police (“RCMP”) obtained the text message records of Jordan Hoelscher, from and including September 24, 2012 to and including October 11, 2012. The Crown and defence agree all of the messages with respect to this hearing were stored in the database as messages sent and received. [ 73 ] Upon service of a court order on Telus requiring information, a security analyst makes certain computer queries to obtain the information. Ms.

Czerski explained that, depending on the court order, she could filter out certain information either before or after receiving the information queried from the database. To her recollection, she had never received such a court order. Issues [ 74 ] There are three aspects of the issue to be determined in deciding whether the RCMP required a

Part VI authorization to obtain the historical text messages stored by the service provider: 1) Is

Part VI intended to establish more stringent authorization standards because the private communication has not yet come into existence, or because the protection relates to the content of a private communication. 2) Does the definition of “intercept” in

Part VI include historic text messages? 3) Is there a reduced expectation of privacy in historic text messages versus future text messages? Decision [ 75 ]

Part VI protects the individual’s privacy interest in the content of a private communication. When the state seeks an authorization to collect the information makes no difference. The broad drafting of the legislation includes historic text messages in the definition of “intercept”. Finally, there is no reduced expectation of privacy in a historic text message versus a future message. [ 76 ] Accordingly, a

Part VI authorization is required to obtain historic text messages, stored by a service provider incidental to the transmission of telecommunications. This is an interception of a private telecommunication. Position of the Parties [ 77 ] The parties agree text messages are a form of private communication. The issue is whether the definition of an “intercept” of a communication includes the acquisition of historical text messages by way of a retrospective authorization, or if it is limited to acquisitions of text messages acquired by a prospective authorization. The Crown’s Position [ 78 ] The Crown argues that a

Part VI authorization is not required, as the acquisition of historical text messages is not an “intercept”. The underlying premise is that a transmission is complete once the intended recipient receives the text message. Therefore, obtaining a historical text message by way of a retrospective authorization after delivery of the text message is not an interception of a communication. By implication, it is only an interception if the seizure occurs pursuant to a prospective authorization for future messages. The Crown relies on this temporal definition of “intercept” which implies the protection of

Part VI turns on the time the police seek the authorization. The Accused’s Position [ 79 ] The defence argues it is irrelevant whether the acquisition is of historical text messages under a retrospective authorization or of text messages by way of a prospective authorization as the content and the privacy interest are identical. Defence counsel submits the temporal distinction relied on by the Crown is incorrect, and an “intercept” of a communication includes obtaining the communication from a transmission service provider with an authorization granted either before or after the sending of the text message.

The Law [ 80 ] In R v Telus , the Supreme Court of Canada considered a similar question. In that case, the police acquired text messages stored by Telus for billing purposes. Telus recorded the messages in the same way and for the same purpose as in this case. However,

the general warrant in R v Telus was requested prior to the sending of the text messages, while in this case the RCMP requested theauthorization after the messages had been sent and received. [81] The Supreme Court in R v Telus found that the seizure of text messages stored by a service provider, by way of a prospectiveauthorization, constitutes an intercept and therefore requires a

Part VI authorization. [82] Although the Supreme Court did not comment on historical text messages, the Court did not preclude historical text messagesfrom inclusion in the

Part VI regime. The Supreme Court made no binding decision on the issue. Abella J. (writing for herself, Lebel andFish JJ.) stated: 15 We have not been asked to determine whether a general warrant is available to authorize the production of historical text messages, orto consider the operation and validity of the production order provision with respect to private communications. Rather, the focus of thisappeal is on whether the general warrant power in s. 487.01 of the Code can authorize the prospective production of future text messagesfrom a service provider’s computer.

That means that we need not address whether the seizure of the text messages would constitute aninterception if it were authorized after the messages were stored. [83] Although the Court did not opine on historical text messages, Abella J.’s decision (Moldaver and Karakatsanis JJ. concurringin the result) provided a framework for analyzing whether prospective authorizations require a

Part VI authorization. Various courts haveapplied this framework regarding retrospective authorizations for the seizure of historical text messages: R v Belcourt 2015 BCCA 126,R v Webster 2015 BCCA 286, leave denied [2015] SCCA No 376, R v Pazder 2015 ABQB 493, R v Carty 2014 ONSC 212, R v Frank2014 ONSC 2853, R v Croft 2013 ABQB 716. [84] Of these cases, all except R v Croft impose a temporal restriction on the definition of “intercept”, thereby limiting theprotection of

Part VI authorizations to authorizations for future text messages and excluding the acquisition of historical messages with aretrospective authorization: R v Belcourt, R v Webster, R v Pazder, R v Carty, R v Frank. [85] The Court in R v Croft concentrated on the content and privacy interest attached to the communication, not the temporalaspect, thereby including historical text messages as communications in the definition of an “intercept” which require a

Part VIauthorization for their acquisition. [86] There is no appellate authority in Alberta with respect to this issue. However, applying the framework and reasoning outlinedin R v Telus to historical text messages brings me to the conclusion that the acquisition of these text messages requires a

Part VIauthorization. Analysis The Purpose of

Part VI [87] The first issue in the analysis is to determine why Parliament imposed a higher threshold for

Part VI authorizations asopposed to production orders. [88] If the purpose of

Part VI is only to protect an individual’s privacy interest in communications acquired with a prospectiveauthorization, then the police in this case required only a production order to seize historical text messages. [89] Conversely, if the purpose is to protect the privacy interest inherent in the content in private communications, regardless ofthe timing of the seizure or the time at which the authorization is requested, then a

Part VI authorization is required to seize historicaltext messages. [90] The purpose of the legislation is to protect an individual’s privacy interest in the content of their private communications.Abella J. made it clear in R v Telus that the privacy interest is in the content of the communication. [91] Abella J. examined the legislative history of s. 184 of the Criminal Code and the corresponding

Part VI provisions whichallow police to intercept such communications, stating: 23 Section 184(1) makes it an indictable offence to “wilfully intercep[t] a private communication” by use of a device.

Part VI providesa 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 the Code to add

Part IV.1 (now

Part VI) entitled “Invasion of Privacy”. The goal of the legislation wasexplained by Zuber J.A. in R. v. Welsh an Iannuzzi (No. 6) (1977), (ON CA), 32 C.C.C. (2d) 363 (Ont. C.A.) asfollows: It is apparent that in enacting the Protection of Privacy Act, 1973-74 (Can.), c. 50, . . . Parliament had two objectives. The first was toprotect private communications by prohibiting interception and to render inadmissible evidence obtained in violation of the statute.

Thesecond objective, which balances the first, was to recognize the need to allow the appropriate authorities, subject to specific controls, tointercept private communications in the investigation of serious crime, and to adduce the evidence thus obtained. [p. 369] [92] Ultimately, Abella J. concluded at para 24 “the purpose of

Part VI is to restrict the ability of the police to obtain and discloseprivate communications” and as such the

Part VI provisions were “drafted broadly to ensure the necessary protection”. [93] Therefore, when considering the definition of the word “intercept of a communication,” the proper focus is on theindividual’s reasonable expectation of privacy in the content of the communication. The

interpretation of “intercept of a communication”

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 be aligned with technological developments: R v Telus at para 33 . [ 94 ] The higher threshold imposed on the state under

Part VI does not depend on whether the communication exists at the time of the request for an authorization. Rather, it protects the privacy interest in the content of the communication and the corresponding s. 8 Charter rights, regardless of the timing of the request for an authorization to intercept it. Does

Part VI Include Historic Text Messages in the Definition of “Intercept”? [ 95 ] If the purpose of the legislation is to protect an individual’s privacy interest in the content of a private communication, then we must determine whether the wording of the legislation includes a historic text message in the definition of “intercept”. [ 96 ] It does. [ 97 ] The Crown argues that the purpose of

Part VI is to require authorizations only for future text messages, not those sent, received and recorded by the third party transmission provider. The Crown relies on R v Belcourt , R v Carty , and R v Frank , R v Pazder , R v Webster . These cases, premised on a narrow

interpretation of “intercept”, limit the protections of

Part VI to prospective authorizations. This narrow definition presumes that once the text message has been recorded, the acquisition of that information is no longer an intercept, since the police are not taking steps to acquire the communication before its transmission. [ 98 ] I disagree with this narrow

interpretation of “intercept”, as it fails to recognize the purpose of

Part VI and is contrary to the broad

interpretation of “intercept” outlined in R v Telus . [ 99 ] With respect to the broad definition of the word “intercept”, Abella J. stated: 35 …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, 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. [emphasis added] [ 100 ] Notwithstanding the words “simultaneous” and “contemporaneous,” it is important to remember that the acquisition by the police of text messages stored by a service provider, whether by way of a retrospective or prospective authorization, will never occur simultaneously or contemporaneously with the sending of the message. A retrospective authorization will of course always make for the acquisition of stored material.

It cannot occur simultaneously with the sending of the text message. Similarly when the police, with a prospective authorization, exploit the storage system of Telus, then the information is always stored before the police acquire it. [ 101 ] The Crown argues the definition of “intercept” must include a temporal element, in which the state acquires the communication on the basis of a prospective authorization.

Once the communication is sent, received and recorded, the Crown submits acquiring it from the transmission provider under a retrospective authorization is no longer an interception. [ 102 ] If “intercept” has any temporal requirement, it must not trump the focus of

Part VI, which is to protect the privacy interest in the content of the communication. Abella J. rejected a definition of “intercept” which relies largely on a temporal element: 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. [ 103 ] In this case, the police seek to acquire the content of a recorded telecommunications from the transmission service provider. It does not matter whether the police request the authorization one week before the text is sent, one minute before it is sent, or one week after it is sent, in all instances it is the acquisition of a private telecommunication from a service provider, and it is the content of those communications

Part VI aims to protect. The acquisition of the content from the service provider is the interception, not the time which the police request the authorization. [ 104 ] To give meaningful

interpretation to the protections of

Part VI, the Court must reject arbitrary temporal distinctions and concentrate on the privacy interest in the content of the communication. [ 105 ] Finally, “intercept” includes any activities of the service provider incidental to the transmission service, as outlined in R v Telus : 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. [ 106 ] Abella J. found that the storage of text messages was incidental to the transmission service, and was therefore protected by

Part VI: 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 (see Lyons ). [ 107 ] Accordingly, a text message transmitted and recorded by the service provider before the granting of the authorization qualifies as a communication in the definition of intercept. When the police acquire it, they intercept it.

The Privacy Interest in Historic Text Messages [ 108 ] The Crown argues the text messages in this case do not attract the same level of privacy because they have been sent and received. [ 109 ] No meaningful difference exists in the privacy interest between historical and future text messages. They contain identical content. The invasion of the individual’s privacy interest is identical.

The state gains the same information by way of a prospective or retrospective authorization. [ 110 ] The protection of the privacy interest must take into account the invasion of the individual’s privacy, not the time at which the information is collected by the police or the time at which the police seek the authorization. [ 111 ] This content focused approach recognizes the vast amount of information that police may acquire from a service provider, not otherwise available through a search of an individual’s cell phone. [ 112 ] An authorization to acquire text messages stored with a service provider launches a particularly serious intrusion into the individual’s privacy interest.

It permits the acquisition of a large amount of information entrusted by the sender to the transmission service provider. [ 113 ] When the police obtain a search warrant for an actual cell phone of a sender or a recipient of a text message, the police only acquire what remains preserved of a communication on the cell phone. They might not acquire everything an individual has sent or received.

In order to protect certain private communications from unwanted intrusions, a sender or recipient might delete the message, go a step further and electronically clear the information or go so far as to destroy the cell phone. [ 114 ] However, when police intercept text messages from a service provider, they acquire every message sent and received for the phone number, for a specific period of time.

The owner of the cell phone has no control over the storage or disposition of the messages by the service provider. [ 115 ] The acquisition of information from the service provider can therefore be distinguished from the acquisition of information from the sender’s cell phone or the recipient’s cell phone, as in those cases, the respective individuals have some control over the information present on the cell phone. This loss of control of a private communication in the hands of the service provider, and the serious level of intrusion justify the protections of

Part VI. [ 116 ] This loss of control and the high level of intrusion are identical whether the police seek the authorization for future communications or historic communications. Accordingly, if the focus is on the content and the privacy interest, as the Supreme Court recognized in R v Telus , then the protections of

Part VI must apply equally to historic text messages. [ 117 ] The Crown also argued the sender of a text message has a reduced privacy interest in the communications stored by Telus once the recipient has it stored on his cell phone because the recipient can then do with it as he pleases. This, the Crown says, reduces the sender’s privacy interest in the content stored by Telus. [ 118 ] Not so.

Whatever privacy interest the sender may have in the content of his messages on the recipient’s cell phone does not reduce the privacy interest of the sender in the massive amount of information stored by the service provider. The Process Used by Service Providers Cannot Alter Parliament’s Intended Protection for Private Communications [ 119 ] Customers trusted Telus to provide a transmission service of text messages. In order to provide this service, Telus chose until April 2013 to store the text messages for billing purposes.

Storing the text messages was incidental to the transmission of a communication. [ 120 ] If the incidental storage of these text messages is not subject to

Part VI, then a simple change in the service provider’s operations could dramatically affect an individual’s privacy interest. [ 121 ] A change in the service provider’s policy cannot negate Parliament’s intended protection for private communications under

Part VI. As Abella J. stated in R v Telus : 40 ...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 (see Lyons ). 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 and Music Publishers of Canada v. Canadian Assn. of Internet Providers , 2004 SCC 45 , [2004] 2 S.C.R. 427 , at paras. 100-101 ). [ 122 ] To adopt the Crown’s position, the

Part VI regime would protect individuals based on the practice of their service provider. If a service provider, such as Telus, stores the messages as a part of its service, the police could simply wait for the messages to be stored, then request them by way of a production order under less stringent requirements. [ 123 ] Conversely, if the same individual had a second cell phone with a different service provider, one that does not store the text messages, the police would have to comply with the more onerous requirements of

Part VI. [ 124 ] In both cases, the police acquire the identical type of information with respect to the same individual having the same privacy interest, but the requirements to obtain the information would turn on the manner in which a service provider chooses to operate. [ 125 ] The police cannot bypass the

Part VI requirements simply because a service provider deems it necessary to store text messages incidental to the provision of the transmission service. Conclusion [ 126 ] For the reasons set out, although the ITO set out reasonable grounds for the judge to grant the production order, the RCMP required a

Part VI authorization. [ 127 ] Accordingly, the production order authorizing the seizure of the content of the text messages stored by Telus must be set aside. In the result the police conducted the search for and the seizure of the content of the text messages without a warrant. Heard on the 13 th through the 28 th days of October, 2015. Dated at the City of Edmonton, Alberta, this 22 nd day of January, 2016. E.J. Simpson J.C.Q.B.A. Appearances: Dennis C. Hrabcak Public Prosecution Service of Canada for the Crown

S.M. Renouf, Q.C. Simon Renouf Professional Corporation for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment on the Voir Dire of The Honourable Mr. Justice E.J. Simpson _______________________________________________________ A Restriction on Publication notice has been added to page 1 of the judgment.