TELUS Communications Company Appellant v. Her Majesty The Queen, 2013 SCC 16

SUPREME COURT OF CANADA Citation: R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3 Date: 20130327 Docket: 34252 Between: 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 Coram: McLachlin C.J. and LeBel, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 46) Reasons Concurring in Part and in Result: (paras. 47 to 108) Dissenting Reasons: (paras. 109 to 196) Abella J. (LeBel and Fish JJ. concurring) Moldaver J. (Karakatsanis J. concurring) Cromwell J. (McLachlin C.J. concurring) R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3 TELUS Communications Company Appellant

v. 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 Indexed as: R. v. TELUS Communications Co. 2013 SCC 16 File No.: 34252. 2012: October 15; 2013: March 27.

Present: McLachlin C.J. and LeBel, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the ontario superior court of justice Criminal law — Interception of communications — General warrant — Telecommunications company employing unique process for transmitting text messages resulting in messages stored on their computer database for brief period of time — General warrant requiring telecommunications company to produce all text messages sent and received by two subscribers on prospective, daily basis — Whether general warrant power in s. 487.01 of Criminal Code can authorize prospective production of future text messages from service provider’s computer — Whether investigative technique authorized by general warrant in this case is an interception requiring authorization under

Part VI of Criminal Code — Whether general warrant may properly issue where substance of investigative technique, if not its precise form, is addressed by existing legislative provision — Criminal Code, R.S.C. 1985, c. C-46, s. 487.01. Unlike most telecommunications service providers, TELUS Communications Company routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.

The police in this case obtained a general warrant and related assistance order under ss. 487.01 and 487.02 of the Criminal Code requiring Telus to provide the police with copies of any stored text messages sent or received by two Telus subscribers. The relevant part of the warrant required Telus to produce any messages sent or received during a two-week period on a daily basis.

Telus applied to quash the general warrant arguing that the prospective, daily acquisition of text messages from their computer database constitutes an interception of private communications and therefore requires authorization under the wiretap authorization provisions in

Part VI of the Code . The application was dismissed. The focus of the appeal is on whether the general warrant power can authorize the prospective production of future text messages from a service provider’s computer. Held (McLachlin C.J. and Cromwell J. dissenting): The appeal should be allowed and the general warrant and related assistance order should be quashed. Per LeBel, Fish and Abella JJ.:

Part VI of the Criminal Code provides a comprehensive scheme for “wiretap authorizations” for the interception of private communications. The purpose of

Part VI is to restrict the ability of the police to obtain and disclose 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. In considering whether the prospective, daily production of future text messages stored in Telus’ computer falls within

Part VI, we must take the overall objective of

Part VI into account. Text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under

Part VI.

Section 487.01 of the Code , the general warrant provision, was enacted in 1993 as part of a series of amendments to the Code in Bill C-109, S.C. 1993, c. 40. It authorizes a judge to issue a general warrant permitting a peace officer to “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”. Notably, 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.

Section 487.01(1)(

c) should be broadly construed to ensure that the general warrant is not used presumptively to prevent the circumvention of the more specific or rigorous pre-authorization requirements for warrants, such as those found in

Part VI. To decide whether s. 487.01(1)(

c) applies, namely, whether another provision would provide for the authorization sought in this case, requires interpreting the word “intercept” in

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. It should

also be informed by the rights enshrined in s. 8 of the Charter , which in turn must remain aligned with technological developments. 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. A narrow definition is also inconsistent with the language and purpose of

Part VI in offering broad protection for private communications from unauthorized interference by the state. 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. 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. The use of the word “intercept” implies that the private communication is acquired in the course of the communication process. 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. 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 the Code . 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. 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. The technical differences inherent in Telus’ transmission of text messages should not deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to. The general warrant in this case 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. Per Moldaver and Karakatsanis JJ.: There is agreement with Abella J. that the police are entitled to a general warrant only where they can show that “no other provision” of the Criminal Code or any other Act of Parliament would provide for the investigative technique, including a substantively equivalent technique, for which authorization is sought. The investigative technique in this case was substantively equivalent to an intercept. The general warrant is thus invalid.

Resolution of whether what occurred in this case was or was not, strictly speaking, an “intercept” within the meaning of s. 183 of the Code is unnecessary. A narrower decision guards against unforeseen and potentially far-reaching consequences in this complex area of the law. The result is driven by the failure of the authorities to establish the requirement in s. 487.01(1)(

c) that there be “no other provision” that would provide for the search. This provision ensures that the general warrant is used sparingly as a warrant of limited resort. 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.

The “no other provision” requirement must be interpreted so as to afford the police the flexibility Parliament contemplated in creating the general warrant, while safeguarding against its misuse. 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 preconditions. Thus, 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 approach to the “no other provision” requirement accepts a measure of uncertainty by tasking judges with the job of inquiring into the substance of purportedly “new” investigative techniques. When uncertainty exists, the police would do well to err on the side of caution. General warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous preconditions.

Judges faced with an application 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 should therefore proceed with extra caution. Where careful scrutiny establishes that a proposed investigative technique, although similar, has substantive differences from an existing technique, judges may grant the general warrant, mindful of their obligation under s. 487.01(3) to impose terms and conditions that reflect the nature of the privacy interest at stake.

A literal construction of s. 487.01(1)(

c) must be rejected. Such an approach strips the provision of any meaning and renders it all but valueless. Legislative history confirms that general warrants were to play a modest role, affording the police a constitutionally sound path for investigative techniques that Parliament has not addressed. Ensuring that general warrants are confined to their limited role is the true purpose of s. 487.01(1)( c ). While the “best interest” requirement in s. 487.01(1)(

b) serves to prevent misuse of the general warrant, this provision should not be interpreted as swallowing the distinct analytical question that the “no other provision” test asks. A purposive approach to s. 487.01(1)(

c) has nothing to do with investigative necessity. Under the “no other provision” test, the police are not asked to show why an alternative authorization would not work on the facts of a particular case, but rather why it is substantively different from what Parliament has already provided. In this case, the general warrant is invalid because the investigative technique it authorized was substantively equivalent to an intercept. What the police did — securing prospective 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. Though there is no evidence to suggest that the police acted other than in good faith, the police failed to meet their burden to show that the impugned technique was substantively different from an intercept. On the facts here, the general warrant served only to provide a means to avoid the rigours of

Part VI. The police could and should have sought a

Part VI authorization.

Per McLachlin C.J. and Cromwell J. (dissenting): The question of whether what the police did under this general warrant is an interception of a private communication is one of statutory

interpretation. When the text of the statutory provisions is read in its full context, it is clear that the general warrant does not authorize an interception that requires a

Part VI authorization. While there is no doubt that the text message is a private communication and that text messages here were intercepted by Telus by means of an electro- magnetic, acoustic, mechanical or other device, the police in this case, did not intercept those messages when Telus turned over to them copies of sent and received messages previously intercepted by Telus and stored in its databases. Therefore, the investigative technique authorized by the general warrant in this case was not an interception of private communication.

Fundamental to both the purpose and to the scheme of the wiretap provisions is the distinction between the interception of private communications and the disclosure, use or retention of private communications that have been intercepted. The purpose, text and scheme of

Part VI show that the disclosure, use or retention of intercepted private communications is distinct from the act of interception itself. That is, if disclosure or use of a private communication were an interception of it, there would be no need to create the distinct disclosure or use offence. Similarly, the exemptions from criminal liability show that Parliament distinguished between interception on one hand and retention, use and disclosure on the other. In this case, it is not disputed that Telus was intercepting text messages when it copied them for its own systems administration purposes.

However, it is also agreed that Telus lawfully intercepted private communications. Under the general warrant, the police sought disclosure from Telus of information that it had already lawfully intercepted. The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes. As the scheme of the legislation makes clear, disclosure or use of a lawfully intercepted communication is not an interception.

It is inconsistent with the fundamental distinction made by the legislation to conclude that the police were intercepting private communications when Telus provided them with copies of previously intercepted and stored text messages. The distinction in the statute between interception and disclosure cannot be dismissed as a mere “technical difference”. The distinction is fundamental to the scheme of the provisions. When Telus turns over to the police the copies of the communications that it has previously intercepted, Telus is disclosing the communications, not intercepting them again.

This disclosure by Telus from its databases cannot be an interception by the police. Acquiring the content of a previously intercepted and stored communication cannot be an interception because that broad reading is inconsistent with the clear distinction between interception and disclosure in the provisions. Applied broadly, this

interpretation of “acquire” would extend the scope of investigative techniques which require wiretap authorizations far beyond anything ever previously contemplated. Further, introducing a temporal aspect of interception would confuse the act of interception with the nature of its authorization. Interception is a technique, a way of acquiring the substance of a private communication. It could not be that exactly the same technique, which acquires information in exactly the same form, may be either a seizure of stored material or an interception, depending on the point in time at which the technique is authorized.

The general warrant is not one of limited resort that should be used sparingly. On the contrary, as numerous authorities have acknowledged, the provision is cast in wide terms. Therefore, it is not accepted as an imperative that s. 487.01 must be interpreted with a view to heavily restricting its use.

The focus of the inquiry is on two matters (in addition of course to reasonable grounds to believe that an offence has been committed and that information concerning the offence will be obtained): Is authorization for the “technique, procedure or device to be used or the thing to be done” provided for in any other federal statute, and is it in the best interests of the administration of justice to authorize it to be done?

Section 487.01(1)(

c) provides that a general warrant may issue if “there is no other provision . . . that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done ”. The words “technique”, “procedure”, “device to be used” and “thing to be done” all are concerned with what the police want to do, not why they want to do it. This paragraph does not require issuing judges to consider whether other techniques are similar or allow access to the same evidence; it simply asks if the same technique can be authorized by another provision. This is not simply a narrow, literal

interpretation of s. 487.01. Rather, it is an

interpretation that reflects its purpose of conferring a broad judicial discretion to authorize the police to “use any device or investigative technique or procedure or do any thing ”, provided of course that the judge is satisfied that it is in the best interests of the administration of justice to do so, having due regard to the importance of the constitutional right to be free of unreasonable searches and seizures. However, courts should not authorize anything the police seek to do simply because it is not authorized elsewhere.

The judicial discretion to issue the warrant must give full effect to the protection of reasonable expectations of privacy as set out under s. 8 of the Charter . There is no support in the text or the purpose of s. 487.01(1)( c ), or in the jurisprudence, for building into it a “substantive equivalency” test. The paragraph asks a simple question: Does federal legislation provide for “a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done”? Where this threshold is met, the judge is entitled to consider granting the requested authorization.

The further question of whether the authorization ought to be granted is not the focus of this paragraph of the section. Rather, whether a general warrant ought to issue is properly considered under s. 487.01(1)( b ), which asks whether authorizing the warrant would be in the best interests of the administration of justice.

This approach is not only supported by the text, purpose and jurisprudence, but by the application of a “substantive equivalency” test 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. Predictability and clarity in the law are particularly important in the area of judicial pre- authorization of searches.

The primary objective of pre-authorization is not to identify unreasonable searches after the fact, but to ensure that unreasonable searches are not conducted. The requirements for pre-authorization should be as clear as possible to ensure that Charter rights are fully protected. The technique sought to be authorized here is not the substantive equivalent of a wiretap authorization. On the facts of this case, a wiretap authorization alone would not allow the police to obtain the information that Telus was required to provide under the general warrant.

Three separate authorizations would be required in order to provide the police with the means to access the information provided to them under the general warrant. Therefore, even if one were to accept reading into s. 487.01(1)(

c) a “substantive equivalency” test, neither the facts nor the law would support its application in this case. The police did not seek a general warrant in this case as a way to avoid the rigours of

Part VI. The general warrant achieved the legitimate aims of the police investigation in a much more convenient and cost-effective manner than any other provision would have

allowed. There is no evidence of “misuse” of s. 487.01. The effective and practical police investigation by a relatively small municipalpolice force was fully respectful of the privacy interests of the targets of the investigation and other Telus subscribers. Cases Cited By Abella J. Referred to: R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751; R. v. Brand, 2008 BCCA 94, 229 C.C.C. (3d) 443 (sub nom. R.v. Ford); R. v. Welsh and Iannuzzi (No. 6) (1977), (ON CA), 32 C.C.C. (2d) 363; Lyons v. The Queen, (SCC), [1984] 2 S.C.R. 633; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v.

Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v.Wong, (SCC), [1990] 3 S.C.R. 36; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. ofInternet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427. By Moldaver J. Referred to: R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751; Lyonsv. The Queen, (SCC), [1984] 2 S.C.R. 633; R. v. Brand, 2008 BCCA 94, 229 C.C.C. (3d) 443 (sub nom. R. v. Ford);Schreiber v. Canada (Attorney General), (FCA), [1997] 2 F.C. 176, rev’d (SCC), [1998] 1 S.C.R.841; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

By Cromwell J. (dissenting) Tele-Mobile Co. v. Ontario, 2008 SCC 12, [2008] 1 S.C.R. 305; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Jones,2011 ONCA 632, 107 O.R. (3d) 241; R. v. Bahr, 2006 ABPC 360, 434 A.R. 1; R. v. Cross, ; R. v. Little, ; R. v. Tse, 2008 BCSC 906 ; R. v. Weir, 2001 ABCA 181, 281 A.R. 333; R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751,leave to appeal refused, [2009] 3 S.C.R. vii; R. v. Lauda (1998), (ON CA), 37 O.R. (3d) 513, aff’d (SCC), [1998] 2 S.C.R. 683; R. v. Noseworthy (1997), (ON CA), 33 O.R. (3d) 641; R. v. Brand, 2008 BCCA 94, 229C.C.C. (3d) 443 (sub nom. R. v. Ford); R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. Statutes and Regulations Cited Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40 (Bill C-109). Bill C-30, Protecting Children from Internet Predators Act, 1st Sess., 41st Parl., 2011-12 (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., 2011-12-13 (First Reading,February 11, 2013). Bill C-176, Protection of Privacy Act, 1st Sess., 29th Parl., 1973, Explanatory Note.

Canadian Charter of Rights and Freedoms, ss. 8, 24(2). Criminal Code, R.S.C. 1985, c. C-46,

Part VI, ss. 183 “intercept”, “private communication”, 184, 184.4, 185, 186, 189, 193, 195, 196,487, 487.01 [ad. 1993, c. 40, s. 15], 487.012, 487.02, 492.2(1), (2).

Interpretation Act, R.S.C. 1985, c. I-21, s. 35 “telecommunications” [am. 1993, c. 38, s. 87]. Protection of Privacy Act, S.C. 1973-74, c. 50. Authors Cited Coughlan, Steve. “R. v. Ha: Upholding General Warrants without Asking the Right Questions” (2009), 65 C.R. (6th) 41. Fontana, 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 withJudicial Pre-Authorization of Investigative Techniques, 2nd ed. Toronto: Thomson Carswell, 2004.

Hutchison, Scott C., et al. Search and Seizure Law in Canada, vol. 1. Toronto: Carswell, 2005 (loose-leaf updated 2012, release 7). 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 from a decision of the Ontario Superior Court of Justice (Sproat J.), 2011 ONSC 1143, 105 O.R. (3d) 411, [2011]O.J. No. 974 (QL), 2011 CarswellOnt 1331, upholding the validity of a general warrant and related assistance order. Appeal allowed,McLachlin C.J. and Cromwell J. dissenting. Scott C.

Hutchison, Michael Sobkin and Fredrick Schumann, for the appellant. Croft Michaelson and Lisa Matthews, for the respondent. Michal Fairburn, for the intervener the Attorney General of Ontario.

Wendy Matheson and Rebecca Wise , for the intervener the Canadian Civil Liberties Association. Written submissions only by Tamir Israel , for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. The judgment of LeBel, Fish and Abella JJ. was delivered by [ 1 ] Abella J. — 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 the Criminal 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 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). 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. [ 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 the Code . [ 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 the Code 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 the Code . It authorizes a judge to issue a general warrant permitting a peace officer to “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”: 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, 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 also R. v. Brand , 2008 BCCA 94 , 229 C.C.C. (3d) 443 ( sub nom. R. v. Ford ), at para. 50 ). [ 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 (loose-leaf), 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 wasavailable to authorize the prospective production of future text messages stored on a service provider’s computer, maintaining that PartVI did not apply because the retrieval of messages from computer storage is not an “intercept”. That is the central issue that is engagedin this case. [22] This requires us to determine whether

Part VI applies to the prospective, and in this case continuous, production oftext messages sought by the police, or whether the fact that the messages are stored in Telus’ computer means that their retrieval by thepolice 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 ofPrivacy 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 ofthe legislation was explained by Zuber J.A. in R. v. Welsh an Iannuzzi (No. 6) (1977), (ON CA), 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 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] [24] Because the purpose of

Part VI is to restrict the ability of the police to obtain and disclose private communications, itis drafted broadly to ensure the necessary protection. In Lyons v. The Queen, (SCC), [1984] 2 S.C.R. 633, this Courtexplained this breadth as follows: This is broad legislation embracing in these extensive provisions the use of a wide range of radio, telephone, optical and acousticaldevices for listening to and recording private communications as broadly defined. It is not “wiretapping” legislation, nor eavesdroppinglegislation, nor radio regulation.

It is the regulation of all these things and “any other device” that may be used to intercept intelligencereasonably 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 thesubstance, meaning or purport thereof”. Consistent with the broad scope of

Part VI, this definition is not exhaustive and focuses on thestate acquisition of informational content — the substance, meaning, or purport — of the private communication.

It is not just thecommunication itself that is protected, but any derivative of that communication that would convey its substance or meaning. “[P]rivatecommunication” 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 originatorto be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expectthat it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-basedtelephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any personother 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 the

Interpretation 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 byany 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 authorizationunder

Part VI. Compared with other search and seizure and warrant provisions in the Code, the provisions in

Part VI contain morestringent requirements to safeguard privacy interests. Before granting an authorization under

Part VI, a judge must be satisfied that theauthorization 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 triedand have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical tocarry out the investigation of the offence using only other investigative procedures”. In R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992,this Court clarified that this criterion required the police to show that there was “no other reasonable alternative method of investigationin 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, theplace at which they are intercepted, and the manner of the interception. They are required to contain such conditions as the judgeconsiders advisable and will only be valid for a limited period of time not to exceed 60 days. Finally, a written application by theAttorney General, Minister of Public Safety or a designated agent is required. [30] In addition to these prerequisites for authorization,

Part VI contains a number of notice requirements.

Section 196requires that notice be given to targets of interceptions authorized under s. 186 within a certain timeframe. Under s. 189, an accusedmust be given notice of any interception intended to be produced in evidence. In addition, s. 195 requires the Minister of Public Safetyand Emergency Preparedness or the Attorney General for each province to produce an annual report with respect to the use of

Part VIauthorizations. In R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, this Court found that a notice requirement provides transparency andserves as a further check on the power of police to perform highly intrusive interceptions of private communications. The Courttherefore concluded that a notice provision was necessary to meet the minimal constitutional standards of s. 8 of the Canadian Charter ofRights 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 warrantprovisions in the Code. In considering whether the prospective, daily production of future text messages stored in Telus’ computer fallswithin

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 theInterpretation Act. They also acknowledged that these messages, like voice communications, are made under circumstances that attracta reasonable expectation of privacy and therefore constitute “private communication” within the meaning of s. 183. Similarly, there isno 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 thepurposes of

Part VI, but also by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technologicaldevelopments. In R. v. Wong, (SCC), [1990] 3 S.C.R. 36, this Court found that “the broad and general right to be securefrom unreasonable search and seizure guaranteed by s. 8 [of the Charter] 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, whatevertechnical form the means of invasion may take” (p. 44). A technical approach to “intercept” would essentially render

Part VI irrelevantto the protection of the right to privacy in new, electronic and text-based communications technologies, which generate and store copiesof 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 intendedrecipient 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 celltower, and whether the user has accessed the message.

If Telus is unable to deliver the message, it remains in the transmissioninfrastructure for five days, at which point Telus stops trying to complete delivery. Furthermore, unlike voice communications, textcommunications, by their nature, generate a record of the communication which may easily be copied and stored.

A narrow or technicaldefinition of “intercept” that requires the act of interception to occur simultaneously with the making of the communication itself istherefore 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, technical definition, the statutory definition broadens theconcept of interception. There is no requirement in the Code definition of “intercept” that the interception of a private communication besimultaneous or contemporaneous with the making of the communication itself.

If Parliament intended to include such a requirement, itwould have included it in the definition of “intercept”. Instead, it chose to adopt a wider definition, consistent with

Part VI’s purpose tooffer 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 informationalcontent and the individual’s expectation of privacy at the time the communication was made. In my view, to the extent that there may beany temporal element inherent in the technical meaning of intercept, it should not trump Parliament’s intention in

Part VI to protect anindividual’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 thecommunication process. In my view, the process encompasses all activities of the service provider which are required for, or incidentalto, the provision of the communications service.

Acquiring the substance of a private communication from a computer maintained by atelecommunications 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 thedisclosure of those communications, fails to provide the intended protection under

Part VI. On the contrary, it allows technologicaldifferences 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 privatecommunication exists in more than one place and may therefore be acquired by the state from the transmission stream and fromcomputer storage.

In other words, the same private communication may be “intercepted” by police more than once from differentsources. [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 textmessages before they were even received by the intended recipient. Had the police acquired the same private communications directlyfrom the transmission stream, instead of from the stored copies, the Crown concedes that a

Part VI authorization would be required. Thelevel of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or acopy that is in storage by a service provider as part of the communications process. Parliament drafted

Part VI broadly to ensure thatprivate 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 intendedprotection for private communications.

As the interveners Canadian Civil Liberties Association and Samuelson-Glushko CanadianInternet Policy and Public Interest Clinic point out in their factums, this Court has recognized in other contexts that telecommunicationsservice providers act merely as a third-party “conduit” for the transmission of private communications and ought to be able to provideservices 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). [42]

Part VI recognizes the dangers inherent in permitting access to the future private communications of a potentiallyunlimited 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 the prospective 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. The reasons of Moldaver and Karakatsanis were delivered by 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 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 here was 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 far-reaching 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, (SCC), [1990] 3 S.C.R. 36. That decision held that police video monitoring of activities in a hotel room intruded on anindividual’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 criminal jurisdiction or ajudge as defined in

section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device orinvestigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonablesearch 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 anyother Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use ofthe 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 permittingthe 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 judgeconsiders 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 ordo any thing” that if not authorized would constitute an unreasonable search or seizure — is kept in check by several prerequisites to itsavailability and conditions on its operation.

Chief among them and what, in my view, lies at the heart of this appeal is the requirement ins. 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 ororder 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 warrantis used sparingly as a warrant of limited resort. It guards against the general warrant becoming “an easy back door for other techniquesthat 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 providerhere, is served with an authorization under

Part VI, the company installs a device that automatically copies all activity for the identifiedphone number, including all text messages, and automatically delivers such data to a police “wire room”. The Crown does not disputethat the acquisition of an individual’s text messages in this manner constitutes a

Part VI intercept, nor is there any dispute that a textmessage 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 outgoingtext messages on its databases for at least 30 days. Though Telus is unique among major telecommunications service providers inmaking 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 itssubscribers’ 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 thisappeal exists — because it creates an investigative resource for the authorities. As Det. Sgt. Prosser of the Ontario Provincial Police saidin his affidavit filed with this Court, Telus’s practice “provides investigators with another option by which to access the content of thesemessages” (A.R., at p. 115).

Relying on conventional search warrants (s. 487) or production orders (s. 487.012), the police haveobtained 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 Telussubscribers’ text messages were authorized either under

Part VI or by a conventional search warrant or production order. The Crown inits factum puts the matter succinctly: police practice with respect to Telus subscribers has been to seek either “search warrants orproduction 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 itauthorizes 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 isnot 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. In R. v. Ha, 2009ONCA 340, 96 O.R. (3d) 751, 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 purportedinvestigative purposes or goals of the police; rather, the focus is on the particular investigative technique or procedure that the policeseek 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 the Code or any otherstatute 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, at para. 75).

Though the police “could have gone to a justice of the peace every day for the 14days covered by the General Warrant and obtained the same records using conventional warrants”, the general warrant could issueprecisely because it provided a single, comprehensive authorization for the search that was otherwise unanticipated by Parliament (para.70).[1] [65] The analysis is, in my respectful view, incomplete. It is self-evident that the police could have sought a

Part VIauthorization 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, youknow, presumably, the police could go back to the issuing justice who was a Superior Court judge and say: Okay. Just issue this as aPart 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 doknow that but for Telus’s practice of routinely storing subscribers’ messages, the police would have had no option other than to obtainsuch 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 asRogers and Bell, who do not store text messages as Telus does. [66] Nonetheless, the question remains whether the law requires that the police should have sought such anauthorization.

At the hearing of this appeal, Crown counsel argued that Ha conclusively resolves the issue in the negative: . . . as the Ontario Court of Appeal pointed out in Ha, the test for determining whether a general warrant can be issued focuses onthe 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’s quite distinct from the seizure of a telecommunication.

Imean, mechanically . . . the police were doing different things. . . . [I]t was a completely different process. [Emphasis added; transcript,at pp. 94-95.] [67] With respect, I cannot agree. To adopt Ha in this way is to turn a blind eye to the substance of the search — and tocommon sense. What the police did in this case — securing prospective authorization for the delivery of future private communicationson a continual, if not continuous, basis over a sustained period of time — was substantively equivalent to what they would have donepursuant 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 occurpursuant to a

Part VI authorization. I do not accept, however, that that fact is determinative in light of the identical privacy interests atstake. But for the 24-hour time delay, the investigative techniques were the same. Indeed, if the Crown’s logic is to be accepted, ageneral warrant could still issue had the delay been 24 minutes or, for that matter, 24 seconds.[2] To draw a line between what wasauthorized here and a

Part VI intercept on the basis of such a theory is to draw “an artificial and unrealistic distinction”: Lyons v. TheQueen, (SCC), [1984] 2 S.C.R. 633, at p. 643. [69] As a result, the facts of the case at hand are distinguishable from Ha. Both Ha and R. v. Brand, 2008 BCCA 94, 229C.C.C. (3d) 443 (sub nom. R. v. Ford), the other appellate authority interpreting s. 487.01, concerned unsuccessful attempts by the targetof a search to invalidate a general warrant on the basis that the police could have sought multiple conventional warrants. In Ha, thepolice were investigating a suspected drug lab.

They sought the flexibility to enter the property covertly at any time within a two-monthperiod and to engage in a broad range of evidence gathering activities therein, including photographing, taking chemical samples, andfingerprinting items. Likewise, in Brand, the police were investigating a large marihuana grow operation and needed covert access tomultiple properties in order to verify the presence of drugs without compromising other aspects of their investigation.

Fundamentally, ineach instance, the request for covert access and temporal flexibility made clear that the substance of the investigative techniques forwhich authorization was sought differed from what could be authorized under a conventional warrant. [70] Explaining why the search sanctioned by the general warrant in Ha was thus substantively different from oneinvolving 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 propertyover a two-month period.

Except for s. 487.01 of the Code, there is “no other provision in . . . any other Act of Parliament” that couldpotentially 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 that 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. [3] The incentives before the police were thus markedly different than they were in Ha . 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) and 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” (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. The

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 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 preconditions. [ 81 ] Second, when judges are faced with an application for a general warrant where the investigative technique, though not identical, comes close in su

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