Tristin Jones Appellant v. Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Ontario, 2017 SCC 60

SUPREME COURT OF CANADA Citation: R. v.

Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 Appeal Heard: March 23, 2017 Judgment Rendered: December 8, 2017 Docket: 37194 Between: Tristin Jones Appellant and Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Ontario Respondents - and - Attorney General of British Columbia, Director of Criminal and Penal Prosecutions, Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and British Columbia Civil Liberties Association Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ.

Reasons for Judgment: (paras. 1 to 82) Côté J. (McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ. concurring) Concurring Reasons: (paras. 83 to 87) Rowe J. Dissenting reasons: (paras. 88 to 119) Abella J.

R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 Tristin Jones Appellant v. Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Ontario Respondents and Attorney General of British Columbia, Director of Criminal and Penal Prosecutions, Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and British Columbia Civil Liberties Association Interveners Indexed as: R. v. Jones 2017 SCC 60 File No.: 37194. 2017: March 23; 2017: December 8.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Rowe JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Enforcement — Standing — Search and seizure — Evidence — Admissibility — Text messages — Accused seeking to exclude at trial text message records obtained by production order from telecommunications service provider — Whether accused has reasonable expectation of privacy in text messages stored by service provider and therefore standing under s. 8 of Canadian Charter of Rights and Freedoms to challenge production order — Whether accused permitted to rely on Crown theory for purposes of establishing subjective expectation of privacy.

Criminal law — Evidence — Production orders — Invasion of privacy — Interception of communications — Police obtaining order under s. 487.012 of Criminal Code for production of text messages stored on service provider’s infrastructure — Whether production order provides lawful authority for seizing stored text messages or w hether wiretap authorization under

Part VI of Criminal Code required for seizure to comply with s. 8 of Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c. C-46, ss. 183 “intercept”, 487.012. J was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co-accused that were obtained under a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014 ). Prior to trial, J sought to exclude the text messages on the basis that obtaining them by means of a production order contravened his s. 8 Charter right.

The trial judge found that J lacked standing to challenge the production order under s. 8 and he was therefore convicted. J’s appeal against conviction was dismissed. Held (Abella J. dissenting): The appeal should be dismissed and the production order upheld. Per McLachlin C.J. and Moldaver, Karakatsanis, Gascon and Côté JJ.: J had a reasonable expectation of privacy in the text messages stored by Telus and therefore standing under s. 8 of the Charter to challenge the production order.

Whether a claimant has a reasonable expectation of privacy must be answered with regard to the totality of the circumstances of a particular case. Claimants must establish that they had a direct interest in the subject matter of the search, that they had a subjective expectation of privacy in that subject matter and that their subjective expectation of privacy was objectively reasonable. In this case, the subject matter of the search is the electronic conversation between J and his co-accused.

J should have been permitted to rely on the Crown’s theory that he authored those text messages for the purposes of establishing his direct interest in their subject matter and his subjective expectation of privacy in the messages. An accused mounting a s. 8 Charter claim may ask the court to

assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire . This coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self-incrimination. It follows that J subjectively expected privacy in records of his electronic conversation found in the service provider’s infrastructure. Text messages are private communications. This is not in dispute in this case.

Moreover, as the application judge found, J and his co-accused used third-party names so as to avoid detection or association with the text messages. This suggests that they intended their communications to remain private. Finally, it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient. That is intuitive.

One would not reasonably expect the service provider to share the text messages with an unintended recipient, or post them publicly for the world to see. In this case, it was therefore reasonable for J to expect that the text messages that he sent would not be shared by Telus with any parties other than the intended recipient, notwithstanding that he relinquished direct control over those messages. Neither the absence of a contractual policy, nor the fact that the production order targeted a phone registered to a third party, deprives J of that protection.

On the totality of the circumstances, therefore, J had a reasonable expectation of privacy in the text messages and standing to challenge the validity of the production order. However, J’s s. 8 Charter right was not breached because records of text messages stored on a service provider’s infrastructure were lawfully seized by means of a production order under s. 487.012 of the Criminal Code . Based on its plain meaning and read in context, the term “intercept” in s. 183 of

Part VI of the Criminal Code does not encompass the production or seizure of historical text messages stored by a service provider. Historical text messages denote messages that have been sent and received, not those still in the transmission process. In this case, there is no question that Telus initially intercepted the communications between J and his co-accused, presumably pursuant to an exception for service delivery purposes under s. 184(2) of the Criminal Code .

However, in light of the statutory scheme’s distinction between interception, use and retention, and disclosure, it is clear that Telus’ subsequent storing and provision of the communications to the law enforcement did not constitute additional interceptions. Rather, Telus retained the intercepted communications under s. 184(3) and then disclosed them to the police as contemplated by s. 193(2) of the Criminal Code . In this case, a

Part VI wiretap authorization was unnecessary because the police did not seek an order authorizing the prospective production of future text messages. Nor is there any evidence that the production order resulted in the production of text messages that were still in the transmission process. Therefore, the search and seizure of J’s text messages were properly authorized by the production order provision in s. 487.012 of the Criminal Code , and did not breach J’s s. 8 Charter right. Per Rowe J.: There is agreement with the majority that, as a matter of statutory

interpretation, a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014 ) authorizes the police to request the disclosure of text messages from a service provider once those messages have been sent and received. Conversely, a

Part VI Criminal Code authorization is required to intercept those messages as they are being transmitted. Given that the records of text messages are stored by the service provider in this case the moment they are sent, however, it makes little difference whether the police “intercept” them or simply obtain them through a production order immediately after they are sent. It appears that the police can in effect sidestep the requirements of

Part VI by obtaining a production order immediately after the messages are sent. No settled view is expressed as to whether this anomaly reflects a failure of s. 487.014 to meet the requirements imposed by s. 8 of the Charter because this issue was not raised in argument. Per Abella J. (dissenting): There is agreement with the majority that J had a reasonable expectation of privacy in his sent text messages and, as a result, had standing under s. 8 of the Charter to challenge the production order. But since the messages were obtained pursuant to a production order rather than a

Part VI Criminal Code authorization, the search and seizure of those messages was not authorized by law and was therefore unreasonable. The police obtained several production orders pursuant to s. 487.012 of the Criminal Code directed at the service providers Bell, Rogers and Telus. Only Telus stored the content of incoming and outgoing text messages for a period of time after the messages were sent and received. No text messages were obtained from accounts held with the other service providers. Telus’ unique storage practices, rather than the underlying principles in

Part VI, led to the production of copies of historical text messages from the targeted Telus account, and the loss of J’s privacy protections available under

Part VI. By prioritizing a temporal distinction to determine the level of privacy protection for text messages, Telus customers are left with less protection than those using other service providers who do not store copies of text messages simply because Telus stores copies of text messages that pass through its infrastructure. This means that the privacy rights of those who text depend on which service provider they use rather than on the fact that they are texting as a means of privately communicating. The term “intercept” in s. 183 of the Criminal Code should be interpreted in the context of the broader

Part VI scheme and the purpose it is meant to serve, namely, to prevent the state from acquiring private communications without lawful authorization and to protect the privacy interests inherent in the content of private communications. The

Part VI protections should be available for historical as well as for prospective interception. The timing of the state’s request for information should not distort the communicative dimension of a text message exchange. Interpreting “intercept[ion]” of a private communication should focus on the content, not on the timing, of what the investigative technique seeks to access, or on the vagaries of the service provider’s technological practices.

When the police obtain copies of text messages from a service provider, they are acquiring a complete record of all electronic conversations that took place during a given period. The informational content acquired by the state is a complete record of all private communications in the given period. A singular focus on the historical dimension of the record should not detract from the content and character of this record. It is a record of a conversation that took place between individuals, albeit in an electronic format, that has been assigned a specific timestamp.

This record may capture electronic conversations between several people innocently participating in an electronic conversation with the targeted recipient, as well as electronic conversations involving multiple participants engaged in a group text.

Since no

Part VI authorization was obtained, the acquisition of copies of J’s historical text messages through the productionorder was invalid and breached J’s rights under s. 8 of the Charter. The messages should be excluded under s. 24(2) of the Charter. The evolution of shifting technology has resulted in acorrespondingly evolving jurisprudence which tries to keep pace with the impact of technology on constitutional rights.

Where no casedirectly on point has been decided, the police have two choices: to use the jurisprudential gap as a rationale for being more intrusive, orto exercise greater caution before interfering with legislatively endorsed privacy rights. The better judicial approach is one thatencourages conduct on the part of the police that errs on the side of being protective of the rights of the public, rather than one thatendorses Charter breaches in deference to the mechanics of new technologies.

The impact of the Charter-infringing conduct on J’s Charter-protected privacy interests under s. 8 of the Charter wassignificant. Whether they take the form of a historical record or occur in real-time, electronic conversations have the potential to revealinformation going to the individual’s biographical core, including information which tends to reveal intimate details of the lifestyle orpersonal choices of an individual. While the police did not technically act in bad faith, their failure to seek

Part VI authorization putpublic confidence in the administration of justice at serious risk. The impact of their conduct on J’s considerable, Charter-protectedprivacy interests under s. 8 of the Charter was significant, which outweighs the public’s interest in seeing a determination of J’s case onthe merits. Cases Cited By Côté J. Applied: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; considered: R. v. TELUS Communications Co., 2013 SCC 16,[2013] 2 S.C.R. 3; R. v. Shayesteh (1996), (ON CA), 31 O.R. (3d) 161; R. v. Duarte, (SCC), [1990] 1S.C.R. 30; referred to: R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v.Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Wong, (SCC), [1990] 3 S.C.R. 36; R. v. Marakah, 2017 SCC 59, [2017] 2S.C.R. 608; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Gauthier, (SCC), [1977] 1 S.C.R. 441; R. v. Jir,2010 BCCA 497, 264 C.C.C. (3d) 64; R. v. Hurry, 2002 ABQB 420, 165 C.C.C. (3d) 182; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R.609; R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544; R. v.

Jones, (SCC), [1994] 2 S.C.R. 229; R. v. White, (SCC), [1999] 2 S.C.R. 417; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Dyment, (SCC), [1988] 2 S.C.R.417; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Law,2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Pugliese (1992), (ON CA), 71 C.C.C. (3d) 295; R. v. Trapp, 2011 SKCA143, 377 Sask. R. 246; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27; R. v. Belcourt, 2015 BCCA 126, 322 C.C.C. (3d) 93; R. v.

McQueen (1975), (AB CA), 25 C.C.C.(2d) 262; R. v. Giles, 2007 BCSC 1147; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280; R. v. Finlay (1985), (ON CA), 23 C.C.C. (3d) 48; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Vu,2013 SCC 60, [2013] 3 S.C.R. 657. By Abella J. (dissenting) R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R.v. Hoelscher, 2016 ABQB 44; R. v. Croft, 2013 ABQB 640, 304 C.C.C. (3d) 279; R. v. Carty, 2014 ONSC 212; R. v. Grant, 2009 SCC32, [2009] 2 S.C.R. 353; R. v.

Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7, 8, 13, 24(2). Criminal Code, R.S.C. 1985, c. C-46, ss. 99, 164.2(1)(b)(ii), 164.3(4)(b), 182(2)(e),

Part VI, 183 “authorization”, “intercept”, “privatecommunication”, 183 to 196, 184, 184 to 192, 193, 462.34(6)(a)(ii), 462.41(3)(b), 462.42(1)(b), 487, 487.01(1)(c), 487.012 [ad. 2004, c.3, s. 7], 487.014 [ad. 2014, c. 31, s. 20; formerly s. 487.012], 490.4(3), 490.5(1)(c). Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 3, 5(3), 7. Authors Cited Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Fontana, James A., and David Keeshan. The Law of Search and Seizure in Canada, 9th ed. Toronto: LexisNexis, 2015. Hutchison, Scott C., et al.

Search and Seizure Law in Canada, vol. 1. Toronto: Carswell, 1991 (loose-leaf updated 2017, release 7). Magotiaux, Susan. “Out of Sync:

Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015), 71 S.C.L.R. (2d)501. Penney, Steven. “The Digitization of

Section 8 of the Charter: Reform or Revolution?” (2014), 67 S.C.L.R. (2d) 505. Stewart, Hamish. “Normative Foundations for Reasonable Expectations of Privacy” (2011), 54 S.C.L.R. (2d) 335. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, MacFarland and LaForme JJ.A.), 2016 ONCA 543,131 O.R. (3d) 604, 361 C.R.R. (2d) 350, 338 C.C.C. (3d) 591, 350 O.A.C. 274, [2016] O.J. No. 3737 (QL), 2016 CarswellOnt 10858(WL Can.), affirming the accused’s convictions for firearms and drug trafficking offences and the pre-trial application ruling. Appeal

dismissed, Abella J. dissenting. Patrick McCann, Peter Mantas and Ewan Lyttle, for the appellant. Nicholas E. Devlin and Jennifer Conroy, for the respondent Her Majesty The Queen in Right of Canada. Randy Schwartz and Andrew Hotke, for the respondent Her Majesty The Queen in Right of Ontario. Written submissions only by Daniel M. Scanlan, for the intervener the Attorney General of British Columbia. Ann Ellefsen-Tremblay and Daniel Royer, for the intervener the Director of Criminal and Penal Prosecutions. Susan M.

Chapman, Naomi Greckol-Herlich and Bianca Bell, for the intervener the Criminal Lawyers’ Association ofOntario. Christine Lonsdale and Charlotte-Anne Malischewski, for the intervener the Canadian Civil Liberties Association. Jill R. Presser and David A. Fewer, for the intervener the Samuelson-Glushko Canadian Internet Policy and Public InterestClinic. Gerald Chan, for the intervener the British Columbia Civil Liberties Association. The judgment of McLachlin C.J. and Moldaver, Karakatsanis, Gascon and Côté JJ. was delivered by Côté J. — I. Overview [1] The appellant, Mr.

Jones, was convicted of several firearms and drug trafficking offences. His convictions rest onrecords of text messages seized from a Telus account associated with his co-accused pursuant to a production order obtained unders. 487.012 (now s. 487.014) of the Criminal Code, R.S.C. 1985, c. C-46 (“Production Order”). As in the courts below, the appellantchallenges the Production Order under s. 8 of the Canadian Charter of Rights and Freedoms. He argues that law enforcement mustobtain a “wiretap” authorization under

Part VI of the Code to seize records of historical text messages from a service provider in order forthe seizure to comply with s. 8 of the Charter. [2] His appeal arises out of an Ottawa Police Service investigation into firearms trafficking in the Ottawa, Ontario area.Based on evidence gathered in that investigation, the police obtained the Production Order directing Telus to disclose stored records ofany incoming or outgoing text messages on a particular Telus subscriber account associated with the appellant’s co-accused,Mr. Waldron. The targeted account was registered in the name of “Kurt Gilles”.

There is no evidence as to whether Kurt Gilles exists orwhether Mr. Waldron merely used that name as an alias for the purposes of his cellphone subscription. [3] Telus complied with the Production Order and provided the requested records to the police. The records revealed atext message exchange (“Text Messages”) concerning the potential transfer of a firearm. The exchange occurred between the Gillesphone and a phone used by the appellant, but registered in the name of his spouse. [4] Relying in part on the Text Messages, the investigators obtained a Criminal Code

Part VI authorization (“FirstAuthorization”) for a number of phones associated with the suspects. Communications intercepted under it were then used to obtain anadditional

Part VI authorization (“Second Authorization”). On the basis of those subsequent interceptions, search warrants were grantedand executed. The fruits of those searches led to the appellant’s prosecution for marijuana trafficking and proceeds of crime charges. Thefirearm trafficking charges against him, on the other hand, were brought largely on the basis of the Text Messages obtained under theProduction Order. [5] Prior to the commencement of the trial, the appellant sought to exclude the Text Messages on the basis thatobtaining them by means of a Production Order contravened his s. 8 Charter right.

Additionally, he challenged the First and SecondAuthorizations, resulting search warrants and the admissibility of the evidence obtained on the basis of those authorizations insofar asthey derived from the Production Order. The latter authorizations and search warrants are not directly at issue on this appeal. Only theProduction Order — as lawful authorization — and the Text Messages — as evidence derived therefrom — are in question. [6] In his s. 8 Charter application, the appellant led no evidence demonstrating that he authored and sent the TextMessages.

Instead, he argued that he was entitled to rely on the Crown’s theory that he was the author of the Text Messages. Applyingthis Court’s decision in R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, the trial judge found that the appellant lackedstanding to challenge the Production Order under s. 8 of the Charter. The trial judge also dismissed an application to re-open her originals. 8 ruling following the release of this Court’s decision in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, duringMr. Jones’ trial.

In doing so, she reasoned that TELUS did not address the validity of a production order for obtaining records of historicaltext messages. The appellant was subsequently convicted of several firearms trafficking and drug trafficking offences. [7] On appeal, the majority of the Court of Appeal upheld the trial judge’s decision regarding the s. 8 standing issue(2016 ONCA 543, 131 O.R. (3d) 604). That was dispositive of the appeal.

The majority nevertheless went on to assess the lawfulness ofthe search at the second stage of the s. 8 inquiry and upheld the use of a production order to obtain records of historical text messages. Inseparate reasons, LaForme J.A. did not opine on the standing issue, but concurred with the majority’s holding regarding the lawfulness ofthe search. The Court of Appeal was therefore united in its disposition of dismissing the appeal. [8] The appeal to this Court raises three questions.

First, at his s. 8 Charter application, was the appellant entitled torely on the Crown’s theory that he authored the Text Messages in order to establish his subjective expectation of privacy in them?

Second, if so, was the appellant’s subjective expectation of privacy objectively reasonable such that he has standing to make his s. 8claim? And third, did the Production Order provide lawful authority for seizing records of historical text messages located in the hands ofa service provider? [9] I would answer all three questions in the affirmative. I conclude that an accused mounting a s. 8 claim may ask thecourt to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidenceprobative of those same facts in the voir dire. In this case, Mr.

Jones should have been permitted to rely on the Crown allegation that heauthored the Text Messages, and his subjective expectation of privacy in the subject matter of the search is accordingly established.Further, it is objectively reasonable for the sender of a text message to expect that a service provider will maintain privacy over therecords of his or her text messages stored in its infrastructure.

I conclude, however, that the appellant’s s. 8 rights were not breachedbecause records of historical text messages were lawfully seized by means of a production order under s. 487.012 of the Code (nows. 487.014). [10] For these reasons and the reasons that follow, I would dismiss the appeal and uphold the validity of the ProductionOrder. II. Analysis [11]

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.”Its basic interpretive structure is well known and consists of two stages. First, the claimant must show that a state act constituted a searchor seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search (R. v. Cole, 2012 SCC 53,[2012] 3 S.C.R. 34, at para. 34; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18).

Second, the claimant must show that the search or seizure was itself unreasonable.[1] As a general rule, a Charter claimant must prove both the existence of a reasonableexpectation of privacy in the relevant subject matter and the unreasonableness of the search or seizure of that subject matter in order tomake out a breach of s. 8 (see R. v. Collins, (SCC), [1987] 1 S.C.R. 265). [12] This appeal engages both stages of the s. 8 inquiry. A. Does the Appellant Have Standing to Challenge the Production Order? [13] I turn first to the question of standing.

Does the appellant have a reasonable expectation of privacy in the subjectmatter of the search? This question has always been answered with regard to the totality of the circumstances of a particular case (seeEdwards, at para. 31; R. v. Wong, (SCC), [1990] 3 S.C.R. 36, at p. 62). In R. v.

Spencer, 2014 SCC 43, [2014] 2 S.C.R.212, Cromwell J. explained that, in the context of an informational privacy claim, four lines of inquiry may assist in guiding the requiredanalysis (para. 18): (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totalityof the circumstances. (See also Cole, at para. 40.)

(1) What Is the Subject Matter of the Search? [14] First, properly characterizing the subject matter of the search is vital. As explained in R. v. Marakah, 2017 SCC 59,[2017] 2 S.C.R. 608, where the state searches records of text messages, it is “the electronic conversation between two or more people”that it seeks to access (para. 19, per McLachlin C.J.). Following Marakah, then, the subject matter of the search here is properlycharacterized as the “electronic conversation” between Mr. Jones and the user of the Gilles phone.

(2) Does the Claimant Have a Direct Interest and Subjective Expectation of Privacy in the Subject Matter of the Search? [15] In this case, the courts below held that the appellant’s s. 8 claim fails at the doorstep because he never establishedthat the Text Messages were indeed his own. On appeal, we may readily infer that if the appellant authored the Text Messages, then hehad a direct interest in their subject matter insofar as they were capable of describing aspects of his biographical core.

As a factual matter,it is also uncontested that if the appellant authored the Text Messages, then he had a subjective expectation of privacy in records of themstored by the service providers involved in their transmission. Therefore, the real question dictating the result at the second and thirdsteps of the above framework is whether the appellant should have been permitted to rely on the Crown’s theory that he was the authorof the Text Messages for the purposes of establishing s. 8 standing. As explained below, I would answer that question in the affirmative. (

a) Should the Appellant Have Been Permitted to Rely on the Crown Theory for the Purposes of Establishing His SubjectiveExpectation of Privacy in the Text Messages?

[16] At trial, the Crown tendered the Text Messages as evidence that Mr. Jones offered to transfer a firearm, contrary tos. 99 of the Criminal Code. At his Charter application challenging their admission, Mr. Jones argued that he need not admit authorshipof the impugned evidence in order to mount his s. 8 claim.

Instead, he said that for the purposes of establishing his subjective expectationof privacy, he was entitled to rely on the Crown’s allegation that he is indeed the author of the Text Messages, without admitting asmuch. [17] In reply, the respondent Crowns state, correctly, that the burden in a Charter voir dire is on the claimant, and thatdischarging that burden typically requires the claimant to present evidence.

They say the appellant’s s. 8 claim must fail because theaccused is not entitled to rely on the federal Crown’s theory in the voir dire, and “[t]here was no admission of [his] identity as the senderof the texts anywhere in the pre-trial motion record”. [18] With respect, I would decline to endorse this position. It effectively creates a catch-22 for an accused in Mr. Jones’shoes: admit that you are the author in the Charter voir dire, or forego the ability to challenge admission of the evidence tendered toprove that you are the author in the trial proper. [19] Instead, I conclude that Mr.

Jones should have been permitted to rely on the Crown’s theory that he authored theText Messages for the purpose of establishing his subjective expectation of privacy in the subject matter of the search. As I explainbelow, this result coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element inthe totality of the circumstances analysis, as well as the principle against self-incrimination. [20] To begin, the subjective expectation requirement has never been “a high hurdle” (R. v. Patrick, 2009 SCC 17, [2009]1 S.C.R. 579, at para. 37). And for good reason.

Overemphasizing the presence or absence of a subjective expectation of privacy cannotbe reconciled with the normative nature of the s. 8 inquiry. As Justice Binnie explained in Tessling, at para. 42: The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded bys. 8 to the values of a free and democratic society. . . . It is one thing to say that a person who puts out the garbage has no reasonableexpectation of privacy in it.

It is quite another to say that someone who fears their telephone is bugged no longer has a subjectiveexpectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard.[Underlining added.] [21] The idea here is simple: a Charter claimant’s subjective belief that Big Brother is watching should not, through theworkings of s. 8, be permitted to become a self-fulfilling prophecy.

The importance of the subjective expectation element is thereforeattenuated in the s. 8 analysis, and the evidentiary foundation required to establish that element is accordingly modest. A subjectiveexpectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at thevoir dire (see Patrick, at para. 37; Tessling, at para. 38; Cole, at para. 43).

The modest evidentiary foundation necessary to establishone’s subjective expectation of privacy therefore reflects the notion that s. 8’s normative import transcends an individual claimant’ssubjective expectations. [22] This modest evidentiary foundation also aligns with the practical reality of criminal proceedings. For the defence, itmay be a dangerous gambit to call an accused to the stand. That is equally true in a voir dire, insofar as an accused’s testimony may laterbe used for incrimination or impeachment purposes or result in tactical disadvantages.

Therefore, to the extent that the subjectiveexpectation element can be presumed or inferred in the circumstances, the law has not required an accused to assume the risks oftestifying in order to prove that he subjectively expected privacy in the subject matter of the search. [23] The potential risks of testifying or making an admission through counsel in a s. 8 voir dire are apparent in Mr. Jones’case. An admission that he authored the Text Messages was tantamount to admitting the charged offence of illegally offering to transfera firearm. Indeed, at trial, Mr.

Jones was convicted because the Crown proved beyond a reasonable doubt that “a series of textmessages . . . between Waldron and Jones demonstrate[d] a concerted effort to work together to offer to transfer firearms” (trialjudgment, reproduced in A.R., vol. I, at pp. 42-102, at paras. 94 and 95-100). An admission that he was the author was therefore, inpractical terms, an admission of both identity and the actus reus of the offence. [24] I am mindful of the rule that evidence in the voir dire is not automatically admissible in the trial proper (see R. v.Gauthier, (SCC), [1977] 1 S.C.R. 441, at p. 452; R. v.

Jir, 2010 BCCA 497, 264 C.C.C. (3d) 64, at para. 10). Still, anadmission at the voir dire can restrict the permissible scope of defence evidence and submissions at trial. If Mr. Jones admittedauthorship of the Text Messages at the voir dire, his counsel would have been ethically barred from arguing that someone else hadauthored the Text Messages in the trial proper. In theory, he could have still held the Crown to its burden to prove authorship of the TextMessages (see, e.g., R. v. Hurry, 2002 ABQB 420, 165 C.C.C. (3d) 182, at paras. 1 and 3). But in practice, this presents an accused inMr.

Jones’ shoes with difficult tactical decisions. Should he admit authorship in the s. 8 voir dire in order to have a chance at holding thestate to its Charter obligations? Or should he forego a s. 8 claim in order to more rigorously contest the Crown’s theory at trial? Perhapsmore significantly, should he assume the risk that the admission could be used by the Crown for inculpatory or impeachment purposes?[2] [25] The federal Crown submits these choices follow from the fact that the Charter is not a “tactical Bill of Rights”which permits the accused to have his cake and eat it too.

With respect, I see the matter differently for three reasons. [26] First, the Crown’s argument on this point cuts both ways. As the intervener Criminal Lawyers’ Association ofOntario argues, the Crown should not be permitted to say there is sufficient evidence proving Mr. Jones’ authorship of the messagesbeyond a reasonable doubt at trial, but argue that he has not discharged his burden on the balance of probabilities in the voir dire. TheCrown is right to argue that it is the accused’s s. 8 motion. But that motion arises within the Crown’s prosecution.

And it is the Crown,as a quasi-minister of justice, that is charged with ensuring the overall fairness of that prosecution. Therefore, as between the accused andthe Crown, it is more fitting that the Crown be restrained from adopting inconsistent positions.

[27] Second — and on a more practical note — I respectfully reject the Crown’s argument that allowing the accused torely on the Crown’s theory in his Charter application would be procedurally inefficient because the accused would not be tacticallybound to his position at the voir dire. In this case, the trial judge had the benefit of at least the following on the s. 8 Charter claim: (

i) The Information to Obtain the Production Order listing Mr. Jones as the user of the cellphone from which the Text Messageswere sent; and (ii) A submission from the Crown that “the evidence is very clear that it is [Mr. Jones’ and Mr. Waldron’s] communication, butthey haven’t said that”. [28] At first instance, the s. 8 claim turned on the novel legal question that is now before this Court. It was not a factuallydriven dispute.

In that situation, permitting the accused to rely on the Crown’s theory is more efficient than requiring the accused to callcircumstantial evidence in an attempt to ground his desired inference. [29] Third, requiring an accused to admit Crown allegations in order to have a shot at holding the state to itsconstitutional obligations under s. 8 sits uneasily alongside the principle against self-incrimination.

The principle against self-incrimination is a principle of fundamental justice under s. 7 of the Charter and provides a “general organizing principle of criminal lawfrom which particular rules can be derived” (R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 123, quoting R. v. Jones, (SCC), [1994] 2 S.C.R. 229, at p. 249). It reflects the basic tenet that “the Crown must establish a ‘case to meet’ before therecan be any expectation that the accused should respond” (R. v. White, (SCC), [1999] 2 S.C.R. 417, at para. 41).

Like s.8, it is grounded in the value “placed by Canadian society upon individual privacy, personal autonomy and dignity” (Hart, at para. 123,citing White, at para. 43). However, requiring an accused to effectively admit Crown allegations as a pre-requisite to making full answerand defence through bringing a s. 8 Charter challenge creates a tension with the principle against self-incrimination. Indeed, this tensionmay well have resulted in Mr. Jones’ decision not to lead evidence going to his subjective expectation of privacy. [30] In my view, however, this tension need not arise.

Although the principle against self-incrimination is not a free-standing legal protection, it is to be considered in fashioning legal rules in the development of the common law and Charter law (see,e.g., Hart, at para. 123; White, at para. 45). As Iacobucci J. explained in White, at para. 45: The principle against self-incrimination demands different things at different times, with the task in every case being to determineexactly what the principle demands, if anything, within the particular context at issue. [31] What, if anything, does the principle demand in the instant context?

It is clear that, to the extent possible, theelements of s. 8 — which in itself provides a fundamental principle of justice — should be informed by, and reconciled with, theprinciple against self-incrimination. [32] In my view, that is best accomplished by concluding that counsel for a s. 8 applicant may ask the court to assume astrue for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him.

In other words, where the allegedCrown facts, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she need not tender additionalevidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory maynot be apparent at the time of the voir dire, the court may infer it from the nature of the charges.

Alternatively, the court may encourageprosecutors to be forthright in regards to their theory. [33] The preceding lays out an exception to the rule that a Charter applicant “bears the burden of persuading the courtthat [his] Charter rights or freedoms have been infringed or denied” (Collins, at p. 277). Mr. Jones is entitled to rely on this exceptionbecause, as explained above, Ontario Crown counsel tendered the Text Messages to prove that he was the author of their inculpatorycontents, and admitted in the voir dire that the evidence was “very clear” in that respect.

Pursuant to the Crown’s theory, then, he shouldhave been presumed to be the author of the Text Messages for the purposes of his s. 8 application. [34] In the instant circumstances, it follows that Mr. Jones subjectively expected privacy in records of his electronicconversation found in the service provider’s infrastructure. As the Court of Appeal correctly noted, text messages are privatecommunications. This is not in dispute. Further, as the application judge found, Mr.

Jones and his co-accused used third-party names soas to “avoid detection or association with” the Text Messages (application judgment, reproduced in A.R., vol. I, at pp. 1-41, at para. 31).This suggests they intended their communications to remain private. Accordingly, we may infer that Mr. Jones had a subjectiveexpectation of privacy in the subject matter of the search.

(3) Is the Appellant’s Subjective Expectation of Privacy Objectively Reasonable? [35] Having determined that Mr. Jones had a subjective expectation of privacy in the subject matter of the search, thequestion then becomes whether that expectation is an objectively reasonable one. To be clear, the issue here is whether the sender of atext message has a reasonable expectation of privacy in records of that message stored in the service provider’s infrastructure.

The furtherquestion of whether or not it is reasonable for that expectation to persist when the information is in the hands of the intended recipient isthe focus of the Marakah appeal. [36] The application judge held that Mr. Jones did not have a reasonable expectation of privacy in the Text Messages, andthe majority of the Court of Appeal upheld her decision. The arguments in support of their respective holdings can be distilled into twolines of thought.

The first is a general proposition that the sender of a text message does not have a reasonable expectation of privacy inrecords of that message in the hands of the service provider because he voluntarily relinquished control over the message when he sent it.The second points to the rest of the totality of the circumstances in this case, namely that: (

i) the appellant was not a party to a confidentiality agreement with Telus; and

(ii) the Production Order and attendant seizure targeted a Telus account in the name of a third party. [37] In my view, these arguments are no answer to Mr. Jones’ claim for s. 8 standing. As I see it, it was reasonable forhim to expect that the Text Messages he sent would not be shared by a service provider with any parties other than the intended recipient.And, as explained below, neither the absence of a contractual policy, nor the fact that the Production Order targeted a third party,deprives him of that protection. (

a) Does the Sender of a Text Message Have a Reasonable Expectation of Privacy in Its Informational Contents in the Hands of aService Provider? [38] Like all Charter rights, s. 8 demands a purposive

interpretation (R. v. Big M Drug Mart Ltd., (SCC),[1985] 1 S.C.R. 295, at p. 344). It is therefore helpful to begin by recalling its essential purpose.

Section 8 protects an individual’sreasonable expectation of privacy — his or her reasonable “right to be [left] alone by other people” (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 159). As understood by this Court, personal privacy is vital to an individual’s dignity, autonomy,and personal growth (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 89-90; R. v. Dyment, (SCC), [1988] 2S.C.R. 417, at pp. 427-28; R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at p. 292; Spencer, at para. 48).

The protection ofpersonal privacy is accordingly a basic prerequisite to the flourishing of a free and healthy democracy. [39] In the context of informational privacy, specifically, this Court has long recognized that “all information about aperson is in a fundamental way his own, for him to communicate or retain for himself as he sees fit” (Dyment, at p. 429, quoted inSpencer, at para. 40). The concern here is informational self-determination.

Just as individuals may choose to be left alone in their ownhomes by closing the door on the state and reasonably expect privacy, they may choose to divulge certain information for a limitedpurpose, or to a limited class of persons, and nonetheless retain a reasonable expectation of privacy, depending on the circumstances.When it comes to s. 8, protecting such choices is essential. [40] In the totality of the circumstances analysis, a s. 8 claimant’s direct control over the subject matter of the privacyclaim and his or her ability to directly regulate access thereto have figured prominently in the analysis (Edwards, at para. 31; Patrick, atpara. 27; Tessling, at para. 32; Cole, at paras. 45-58).

For example, relinquishing control over physical subject matter by putting it out forgarbage collection, or by discarding it into a garbage can, may reasonably reflect a meaningful choice to abandon one’s privacy interestin that subject matter (see, e.g., Patrick; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607). On the other hand, keepingfinancial documents in a locked safe may reflect a choice to keep the information private (R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227).The control and access factors have also been particularly salient in territorial privacy cases.

As suggested above, land owners andtenants have a practical ability to exclude visitors from their territory and maintain a choice to be left alone by controlling access to theirdomicile (Patrick; Edwards; R. v. Pugliese (1992), (ON CA), 71 C.C.C. (3d) 295 (Ont. C.A.)).

In these traditionalcircumstances, it is meaningful to speak of direct control, access and choice in the same breath, since relinquishing control and givingothers access to the subject matter of a privacy claim may indicate that it is unreasonable to expect privacy in that subject matter. [41] However, as this Court recognized in Spencer and TELUS, control and access are not all or nothing concepts. [42] In Spencer, police requested subscriber information associated with a particular Internet Protocol (“IP”) addressfrom an Internet service provider.

An IP address leaves a trail of “digital breadcrumbs” with the service provider (see S. Magotiaux, “Outof Sync:

Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015), 71 S.C.L.R. (2d) 501, at p. 502). Thosebreadcrumbs are capable of revealing a history of one’s private activity on the Internet (see R. v. Trapp, 2011 SKCA 143, 377 Sask. R.246, at para. 36). But once left in the hands of the service provider, they are out of the Internet user’s direct control. The Court in Spencernevertheless recognized that Mr.

Spencer had a reasonable expectation of privacy in the subject matter of the search, even if an Internet“user cannot fully control or even necessarily be aware of who may observe a pattern of online activity” (para. 46).

In doing so, the Courtrelied in part on the legislative framework in the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5(“PIPEDA”): Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a mannerthat recognizes the right of privacy of individuals with respect to their personal information” . . . it would be reasonable for an Internetuser to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA’sgeneral prohibition on the disclosure of personal information without consent. [Underlining added.] (Spencer, at para. 62) [43] Similarly, in TELUS, a plurality of the Court recognized that: . . . telecommunications service providers act merely as a third-party “conduit” for the transmission of private communications and oughtto be able to provide services without having a legal effect on the nature (or, in this case, the protection) of these communications . . . .[para. 41] [44] TELUS implicitly acknowledges that, as a normative matter, it is reasonable to expect a service provider to keepinformation private where its receipt and retention of such information is incidental to its role of delivering private communications tothe intended recipient.

That is intuitive. One would not reasonably expect the service provider to share his text messages with anunintended recipient, or post them publicly for the world to see. [45] This case is akin to Spencer and TELUS in the sense that Mr. Jones’ decision to message Mr. Waldron necessarilyleaves a trail of digital breadcrumbs with Telus. However, as in Spencer and TELUS, this does not eliminate Mr. Jones’ reasonableexpectation that a service provider would keep the Text Messages private. Like the service provider in Spencer, the service provider here

is subject to the provisions of PIPEDA, which strictly limit its ability to disclose information (see, e.g., ss. 3, 5(3) and 7 of PIPEDA). AsSpencer demonstrates, those limitations operate regardless of whether or not the target of the search is a subscriber of that particularservice provider. Here, as in Spencer and TELUS, the only way to retain control over the subject matter of the search vis-à-vis the serviceprovider was to make no use of its services at all. That choice is not a meaningful one. Focusing on the fact that Mr.

Jones relinquisheddirect control vis-à-vis the service provider is accordingly difficult to reconcile with a purposive approach to s. 8. Canadians are notrequired to become digital recluses in order to maintain some semblance of privacy in their lives. I therefore conclude that the sender of atext message retains a reasonable expectation of privacy in records of text messages stored in a service provider’s infrastructurenotwithstanding that he relinquished direct control over those messages. This result comports with contemporary social norms and apurposive approach to s. 8.

It also comports with the purpose of PIPEDA, and the approaches adopted by this Court in Spencer andTELUS. [46] The next question is whether that expectation is rendered unreasonable in the appellant’s case because he had noconfidentiality agreement with Telus and the Production Order and attendant seizure targeted a Telus account in the name of a thirdparty. As the Ontario Crown concedes, that the Text Messages were sent from a phone registered to Mr. Jones’ spouse does not detractfrom his reasonable expectation of privacy. (

b) The Absence of a Confidentiality Agreement Does Not Defeat Mr. Jones’ Standing Claim [47] The application judge’s finding that “[t]here is nothing to suggest that Telus was contractually bound to keep any ofthe records confidential” militated against the appellant’s s. 8 standing (para. 31). I agree that this factor operates against the appellant.But in my view, it does so only to a limited extent.

When considered in light of the totality of the circumstances, it does not defeat theappellant’s claim for standing. [48] This Court’s decisions indicate that because s. 8 “sets out normative limitations on state power . . . its scope cannot .. . be (entirely) dictated by exogenous norms like statute or contract” (S. Penney, “The Digitization of

Section 8 of the Charter: Reform orRevolution?” (2014), 67 S.C.L.R. (2d) 505, at p. 519). [49] In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, Deschamps J. reasoned for the plurality that “the fact that theperson claiming an expectation of privacy in information ought to have known that the terms governing the relationship with the holderof that information allowed disclosure may not be determinative” (para. 34).

She also warned that when dealing with contracts ofadhesion, in particular, it was necessary to “procee[d] with caution” when determining the impact they may have on one’s reasonableexpectation of privacy (para. 33). In Spencer, Cromwell J. held for a unanimous Court that Mr. Spencer had a reasonable expectation ofprivacy in the subscriber information notwithstanding that his sister was the subscriber, and hence party to the contract with the serviceprovider (see paras. 7, 12 and 57).

Further, he held that to the extent the contract contemplated dissemination of the subscriberinformation, it provided “little assistance in evaluating the reasonableness of Mr. Spencer’s expectation of privacy” (para. 55). [50] Therefore, in both Gomboc and Spencer, the presence of agreements permitting dissemination of the subject matterof the search could not singularly defeat the claimants’ reasonable expectations of privacy. [51] It follows a fortiori that the absence of any such agreement here does not defeat Mr. Jones’ reasonable expectationof privacy. (

c) That the Production Order Targeted a Third Party’s Account Does Not Render Mr. Jones’ Expectation of PrivacyUnreasonable [52] The respondent Crown for Ontario argues that the fact that the Production Order targeted a third party’s cellphoneaccount rather than Mr. Jones’ works against his claim for standing. In my view, it does not. As explained above, a sender of a textmessage has a reasonable expectation of privacy in that message when it is in the hands of a telecommunications intermediary.

In thiscase, it makes no difference whether the message was accessed through an authorization to peer into the recipient’s account or thesender’s account. In either case, the Text Messages are in the hands and control of the service provider. [53] The Ontario Court of Appeal’s decision in R. v. Shayesteh (1996), (ON CA), 31 O.R. (3d) 161,speaks to this point. In that case, Charron J.A. (as she then was) rejected the Crown’s argument that a person who was not targeted by aPart VI authorization had no standing to challenge the authorization.

Instead, she held that the applicant’s standing was grounded in thefact that his “own telephone calls were intercepted as a result of the targeting” of a third party (p. 173). This was sufficient to “give himstanding to dispute the legality” of the impugned interceptions (p. 174). [54] In the circumstances of this case, the analogy to Shayesteh is apt. While the Production Order targeted a third party,it was the appellant’s own text message communications that were seized from Telus. As in Shayesteh, then, the fact that theauthorization targeted a third party, but not Mr.

Jones, does not militate against his reasonable expectation of privacy. Holding otherwisewould ignore that, pursuant to PIPEDA, service providers at large may be expected to maintain privacy over individuals’ information,regardless of whether law enforcement targets one disinterested provider over the other. [55] As a result, I conclude that on the totality of the circumstances, Mr. Jones has a reasonable expectation of privacy inthe impugned Text Messages. He accordingly has standing to challenge the validity of the Production Order. B.

Reasonableness of the Search: Can Historical Text Messages Lawfully Be Seized by Means of a Production Order UnderSection 487.014? [56] The question remaining is whether, at the second stage of the s. 8 framework, the search and seizure of records ofhistorical text messages pursuant to a production order under what is now s. 487.014 of the Code was reasonable. The application judgeand the Court of Appeal held that it was. The appellant’s argument to the contrary is two-pronged.

First, he argues that the courts belowerred because the seizure of text messages from the service provider’s infrastructure is an “intercept” within the meaning of

Part VI ofthe Code. Second, he says that even if the police technique in this case was not, strictly speaking, an “intercept”, it was functionally

equivalent to one. On either view, it would follow that a

Part VI “wiretap” authorization was required to permit the seizure of the TextMessages stored in Telus’ infrastructure. [57] A search “will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which thesearch was carried out is reasonable” (Collins, at p. 278). Here, the search was authorized under s. 487.012 of the Code (nows. 487.014) — but the issue is whether this was a proper source of authority for the search in question. Since the parties agree that textmessages are private communications protected by

Part VI, the question of statutory

interpretation this Court must resolve is whether theword “intercept” in s. 183 of the Code encompasses the production or seizure of historical text messages held by a service provider. Tobe clear, the term “historical text messages” denotes text messages that have been sent and received (or are no longer capable ofreception), not text messages that are in the transmission process. It is only historical text messages — and not those in the transmissionprocess — that are at issue in this appeal. [58] As the trial judge and the Court of Appeal recognized, TELUS did not answer the question at hand. Writing for theplurality, Abella J. limited herself to the issue of whether a

Part VI authorization was required for the “prospective production of futuretext messages” (para. 15 (emphasis in original)). Similarly, Moldaver J.’s opinion that the police technique in TELUS was substantivelyequivalent to an intercept was based on the fact it “prospectively authorize[d] police access to future private communications on acontinual basis over a sustained period of time” (para. 61 (emphasis in original)).

In dissent, Cromwell J. went further and addressed thequestion at issue here; i.e., whether police could obtain stored text messages by means of a production order (para. 116). [59] In my view, when the relevant words in ss. 184 and 184(1) are read in “their entire context and in their grammaticaland ordinary sense harmoniously” with

Part VI’s scheme and undergirding purpose, they do not support the appellant’s

interpretation(Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction ofStatutes (2nd ed. 1983), at p. 87). Nor, in my view, is the police technique in this case an interception within the meaning of s. 184(1)that would require a

Part VI authorization. I therefore conclude that police may lawfully obtain the contents of historical text messagesby means of a production order under s. 487.014 of the Code.

(1) Purpose of

Part VI [60] I turn first to the purpose of

Part VI of the Criminal Code.

Part VI of the Code protects individuals’ privatecommunications from interception and surveillance by the state. In R. v. Duarte, (SCC), [1990] 1 S.C.R. 30, La ForestJ. cast its purpose as follows: The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted byanyone other than the person intended by the originator to receive it . . . has nothing to do with protecting individuals from the threat thattheir interlocutors will divulge communications that are meant to be private. . . .

Rather, the regulation of electronic surveillance protectsus from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent inallowing the state, in its unfettered discretion, to record and transmit our words.

The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronicrecordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that ourcommunications will remain private. [Emphasis added; pp. 43-44.] Two important observations follow from this passage.

The first is that there is distinction between disclosure of information and theinterception of private communications through electronic surveillance. The second is that, as La Forest J. explained,

Part VI isparticularly concerned with regulating the use of intrusive investigation technologies and their impact on citizens’ privacy, not theprotection of private communications at large. As explained below, both of these aspects of

Part VI’s purpose should be borne in mind inresolving the issue at hand.

(2) The Structure of

Part VI and the Distinction Between Interception and Disclosure [61] As the Court of Appeal recognized,

Part VI’s structure reflects the distinction between interception and disclosure.Sections 184 to 192 offer protection against the interception of private communications.

Section 193 prohibits the disclosure ofinformation obtained through intercepted communications. This dual structure reflects Parliament’s purpose because it created distinctoffences for interception and disclosure. [62] The first of these offences, set out in s. 184 of the Code, prohibits the interception of private communications by theuse of certain devices unless one of the legislated exemptions in s. 184(2) applies.

Under s. 182(2)(e), telecommunication serviceproviders like Telus are exempted from the interception offence if they intercept communications for service delivery reasons.Section 184(3) then specifically addresses the use or retention of previously intercepted communications. It provides that: Use or retention

(3) A private communication intercepted by a person referred to in paragraph (2)(

e) can be used or retained only if (

a) it is essential to identify, isolate or prevent harm to the computer system; or

(

b) it is to be disclosed in circumstances referred to in subsection 193(2). [63] What is significant is that this

section of the scheme clearly distinguishes “between interception on the one hand anduse or retention of the intercepted communications on the other” (TELUS, at para. 143, per Cromwell J. (emphasis in original)). “Thissuggests that Parliament viewed those acts as different and distinct” (ibid., at para. 144). [64]

Section 193 is concerned with disclosure: Disclosure of information 193

(1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other devicewithout the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, everyone who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully (

a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or (

b) discloses the existence thereof, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. [65]

Section 193 makes it an offence to disclose a private communication that has been intercepted, subject to theexceptions in s. 193(2).

Under these exceptions, disclosure is not an offence where, inter alia, the disclosure of a previously interceptedcommunication is made “in the course of or for the purpose of any criminal investigation if the private communication was lawfullyintercepted” (s. 193(2)(b)), or when disclosure is made to a police officer and is “intended to be in the interests of the administration ofjustice in Canada” (s. 193(2)(e)). [66] In this case, there is no question that Telus initially intercepted the communications between Mr. Jones andMr. Waldron, presumably pursuant to an exception under s. 184(2) of the Code.

However, in light of the statutory scheme’s explicitdistinction between interception, use and retention, and disclosure, it is clear that Telus’ subsequent storing and provision of thecommunications to the law enforcement did not constitute additional interceptions. Rather, to use the language in

Part VI, Telus retainedthe intercepted communications under s. 184(3) and then disclosed them to the police as contemplated by s. 193(2). The appellant’stendered

interpretation is difficult to reconcile with these distinctions made within

Part VI.

(3) The Plain Meaning of “Intercept” and Its Surrounding Context [67] The appellant’s tendered

interpretation withers further when the word “intercept” is given its plain meaning and readin light of its surrounding context. The crucial context here lies in s. 184(1) and the definition of intercept in s. 183. [68] Section 184(1) provides that:

(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communicationis guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Intercept is defined in s. 183 as follows: intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; [69] Based on its plain meaning, interception suggests a prospective concept of authorization relating to communicationsnot yet in existence.

The word “intercept” denotes an interference between the sender and recipient in the course of the communicationprocess (see R. v. Belcourt, 2015 BCCA 126, 322 C.C.C. (3d) 93, at paras. 45-46; R. v. McQueen (1975), (AB CA),25 C.C.C. (2d) 262 (Alta. S.C. (App. Div.)), at p. 265; R. v. Giles, 2007 BCSC 1147, at para. 37 ). As explained in TELUS, the“word ‘intercept’ implies that the private communication is acquired in the course of the communication process” (para. 37). It followsthat in order for a

Part VI authorization to permit a real-time intercept of the communication, it must be granted in advance of thatcommunication. That is, it must be prospective. As the Court of Appeal for Ontario recently observed, “[t]he words sought for capture donot exist when the [Part VI] authorization is granted. They may never exist or disclose anything of relevance to any offence underinvestigation” (R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 93). [70] While the definition of “intercept” in s. 183 of the Code may read broadly because it features the word “acquire”, acomparison with the French version of the provision reinforces the conclusion that

Part VI authorizations relate only to futurecommunications. As the intervener the Director of Criminal and Penal Prosecutions points out, the French version diverges from theEnglish by employing the words “prendre . . . connaissance” in lieu of “acquire”. This is contrasted with numerous other sections of theCode where Parliament translated the English “acquire” to the French “obtenir” or “acquérir” (see, e.g., ss. 164.2(1)(b)(ii), 164.3(4)(b),462.34(6)(a)(ii), 462.41(3)(b), 462.42(1)(b), 490.4(3) and 490.5(1)(c)).

The distinct translation here suggests a different meaning than inthose other contexts. [71] Further, the word “acquire” in s. 183 must be read alongside the words surrounding it. As Justice Cromwellobserved in TELUS:

. . . “acquire” must be understood in the context of the text surrounding it; it is found in a list that includes “listen to” and “record”, bothactivities that occur simultaneously with the communication being intercepted.

It is also used to explain the word “intercept” and I thinkit is clear that there are many ways to acquire the content of a communication that could not be thought of as an interception. [para. 155] [72] Finally, the definition of intercept in s. 183 must be understood in the context of s. 184, which is at the heart ofPart VI and makes it an offence to intercept communications “by means of any electro-magnetic, acoustic, mechanical or other device”.For example, past practice has been that where police obtain a

Part VI authorization to intercept future text messages, “Telus installs adevice which automatically re-routes a copy of each text message to a police wire room or listening post” (TELUS, at para. 122). Thisclarifies that interception relates to actions by which a third party interjects itself into the communication process in real-time throughtechnological means. [73] This understanding of “intercept” coheres with

Part VI’s overall purpose. Recall that the policy motivating

Part VIwas a concern with the use of intrusive surveillance technologies and their impact on citizens’ privacy (Duarte, at pp. 43-44).

Statesurveillance may be continuous over a prolonged period of time and gives the police real-time access to information they wouldotherwise have to wait for, putting them in a better position to “conduct physical surveillance and gather physical evidence that might notbe available later” (I.F. (Attorney General of British Columbia), at para. 31). [74] Added to these concerns is the fear that when equipped with sophisticated surveillance technologies, the state maybe tempted to embark on forward-looking, “fishing expedition[s] in the hope of uncovering evidence of crime” (R. v.

Finlay (1985), (ON CA), 23 C.C.C. (3d) 48 (Ont. C.A.), at p. 70; see also Belcourt, at para. 47). It is that potential temptation whichrequires us to be “alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilateprivacy” (Wong, at p. 47). The constitutionality of the interception scheme accordingly stems from the heightened safeguards

Part VIimposes in light of the dangers created by prospective authorizations (Belcourt, at para. 47; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.992, at para. 29). As a result of these safeguards, “[a]n application for a conventional authorization to intercept private communicationsis” — in the words of one commentator — “the most exacting pre-trial investigative proceeding known to our criminal law” (S.C. Hutchison et al., Search and Seizure Law in Canada (loose-leaf), vol. 1, at p. 4-37 (footnote omitted)). Based on the statutory scheme,the disclosure of previously stored records does not trigger these concerns, and is accordingly not subject to these safeguards.

(4) The Police Technique Engaged in This Case Is Not an Interception [75] Unlike the police technique in TELUS, the technique in this case does not bear the hallmarks of an interception. InTELUS, the police sought a prospective order securing the recording and preservation of future messages, along with their automatic andcontinuous disclosure to police each day for a two-week period (para. 42). This made the investigative technique “substantivelyequivalent to an intercept” (para. 52 (emphasis deleted)).

The police in TELUS effectively deputized the service provider by requiring itto provide them with daily and comprehensive briefings of the targeted parties’ communications. [76] In contrast, the Production Order in this case, dated February 12, 2010, sought text messaging information andrecords relating to a prior period beginning January 5, 2010 and ending February 12, 2010.

Although the Order requests text messagessent or received on the date of the authorization itself, there is no evidence to the effect that some of the texts produced by Telus were inthe transmission process on February 12, 2010 at the time the Order was made. In the absence of such evidence, and in light of the factthat Telus was given 30 days to comply with the Order, it would be speculative to infer that the Order operated prospectively so as tocatch future text messages. Nor is there any evidence that the messages were stored and retained as part of Telus’ communicativeprocess.

Nor still is there evidence that Telus stored the messages at the request of the police or for law enforcement purposes. Finally,subsequent to the Production Order, when the police sought to intercept future communications between Mr. Jones and Mr. Waldron,they properly requested and obtained two

Part VI authorizations dated November 12, 2010 and January 12, 2011, respectively. [77] In short, the state action in this case respected

Part VI’s distinction between the interception of communications inss. 184 to 192 and the disclosure of previously intercepted and stored communications as contemplated by s. 193. Based on the evidence,it also respected the requirement in TELUS that a

Part VI authorization be obtained for text messages that are still in the transmissionprocess. Law enforcement cannot receive authorization to effectively intercept future communications through the “backdoor” of thegeneral search and seizure regime in s. 487 of the Code. But law enforcement could — and did, in this case — lawfully obtain records ofhistorical text messages by means of a Production Order under s. 487.012 of the Code (as they can still do now under s. 487.014). [78] I am mindful of the fact that text messages are inherently private and in many ways akin to conversations. However,the need for a

Part VI authorization does not vary with the level of privacy engaged by a state search. For example, as Justice Fishobserved in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, it is “difficult to imagine a search more intrusive, extensive, or invasive ofone’s privacy than the search and seizure of a personal computer” (para. 2). And indeed, like phones or service providers, computers maycontain stored records of digital conversations. Yet this Court has always held that seizures of computers may be authorized under thegeneral regime in s. 487 of the Code (R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; Cole; Morelli). As the Court of Appeal recognized,whether or not a

Part VI authorization is required “comes down to the specific investigative technique used by the police, and whetherthat technique constitutes an interception of private communications” (para. 32). [79] It follows that in considering whether or not to grant a production order under s. 487.014(1), the judicial officerseized of the application should reject it where the technique constitutes an interception under s. 184(1). This is evident from theinterplay between the wiretap provisions in

Part VI and the production order requirements of s. 487.014. With respect to the wiretapprovisions, s. 184(2) creates an exemption from the general prohibition in s. 184(1). This provision exempts, in relevant part,interceptions obtained “with an authorization” (s. 184(2)(b)). “Authorization” is a defined term: it “means an authorization . . . givenunder

section 186 or subsection 184.2(3), 184.3(6) or 188(2)” (s. 183). A production order issued under s. 487.014 is not an“authorization” for the purposes of

Part VI — thus, a production order would not make an interception lawful. With respect to therequirements for a production order, s. 487.014(1) provides that on an “ex parte application made by a peace officer or public officer, ajustice or judge may order a person to produce a document”. The Code therefore confers a discretion on the justice or judge to beexercised in accordance with the conditions set out in s. 487.014(2). In exercising this discretion, the judicial officer should considerwhether or not the technique sought to be authorized under the auspices of s. 487.014 is an intercept within the meaning of s. 184(1).

Where it is, a production order should be denied because the interception would nevertheless be unlawful absent a

Part VI authorization. [80] Production orders must therefore be carefully circumscribed to ensure that authorized police techniques comply withs. 184(1). A production order must not authorize, or potentially authorize, the production of any text messages that are either not yet inexistence or are still capable of delivery at the time the order is issued. This should be clear from the face of the order. Where thetechnique at issue is an intercept within the meaning of s. 184(1), then the application is properly rejected and a

Part VI authorizationmust be obtained. A production order should not be used to sidestep the more stringent

Part VI authorization requirements. [81] In this case, however, a

Part VI authorization was unnecessary because the police did not seek an order authorizingthe prospective production of future text messages. Nor is there any evidence before this Court that the Production Order resulted in theproduction of text messages that were still in the transmission process. Accordingly, the search and seizure of Mr. Jones’ text messageswere properly authorized by the production order provision in s. 487.012 of the Code (now s. 487.014), and did not breach Mr. Jones’s. 8 Charter right. III.

Conclusion [82] For these reasons, I would dismiss the appeal and uphold the validity of the Production Order. The following are the reasons delivered by [83] Rowe J. — I agree with Justice Côté that, as a matter of statutory

interpretation, a production order pursuant to s.487.014 of the Criminal Code, R.S.C. 1985, c. C-46 (pursuant to s. 487.012 in this case), authorizes the police to request the disclosureof text messages from a service provider once those messages have been sent and received. Conversely, a

Part VI authorization isrequired to intercept those messages as they are being transmitted. My comments that follow are obiter dicta; they address an issue notdealt with in the judgment, nor raised in argument. [84] An example is useful. At 8:00 a.m., police obtain an authorization pursuant to

Part VI to intercept text messages asthey are sent from A to B. Text messages sent from A to B at 9:00 a.m. are intercepted pursuant to this authorization. Alternatively,police at 10:00 a.m. obtain a production order pursuant to s. 487.014 for text messages sent by A to B at 9:00 a.m. In both instances, thepolice obtain the same information — the text messages sent at 9:00 a.m. The police, however, must meet markedly differentrequirements depending on which method they choose, with those under

Part VI being far more stringent than those under s. 487.014.This seems to me to be highly anomalous. [85] Are the requirements for a production order under s. 487.014 sufficient to give proper effect to the protection againstunreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms? Justice Côté writes that “[a] productionorder should not be used to sidestep the more stringent

Part VI authorization requirements” (para. 80). Given that the records of textmessages are stored by Telus the moment they are sent, however, it makes little difference whether the police “intercept” them or simplyobtain them through a production order immediately after they are sent. It appears, in other words, that the police can in effect sidestepthe requirements of

Part VI by obtaining a production order immediately after the messages are sent. [86] This sidestepping is only possible because Telus retains records of its customers’ text messages. When a Teluscustomer sends a text message, that message can be obtained via a production order only because Telus, as part of its transmissionprocess, keeps a record of all messages sent by their customers. As other major service providers do not at present keep records of theircustomers’ messages, the police would have to obtain a

Part VI authorization if they wanted to obtain text messages from Bell or Rogers,for example. [87] I express no settled view on whether these anomalies reflect the failure of s. 487.014 to meet the requirementsimposed by s. 8 of the Charter. In the result, I concur with Justice Côté. The following are the reasons delivered by [88] Abella J. (dissenting) — The police obtained copies of historical text messages through a Production Order pursuant to s. 487.012 of the Criminal Code, R.S.C. 1985, c. C-46.[3] Tristin Jones sent these messages to the Telus cellphone account associatedwith his co-accused.

These messages formed the basis of Mr. Jones’ conviction for offering to transfer a firearm. [89] As in the companion case of R. v. Marakah, 2017 SCC 59 , [2017] 2 S.C.R. 608, the first issue is whetherthe sender of a text message has a reasonable expec

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