Canada’s Supreme Court Protects Privacy in Texting

On March 27, 2013, the Supreme Court of Canada released its decision in R. v. TELUS Communications Co., in which it confirmed that text messages should be treated like telephone conversations in the context of search and seizure by law enforcement. Texting is therefore protected by the wiretap provisions in Part VI of the Criminal Code and its special regime for search and seizure of private communications.¹

The decision affirms that there is no practical difference between texting and a traditional phone conversation; nor should differences inherent in new technology determine the scope of protection afforded to private communications. The Supreme Court held that an intercept authorization under Part VI, with its strong privacy protections, is required when the police seek prospective production of text messages from a telecommunications provider. The police ought not obtain a general warrant under Part XV of the Code, as they did in this case.

The Case

In 2010, the police obtained a general warrant requiring Telus to provide, on a daily basis, copies of all stored text messages sent to or from two of its subscribers. Telus applied to quash the warrant. It argued that the effect of the warrant was to intercept private communications, and an intercept authorization under Part VI of the Code (often called a "wiretap") was therefore required.

The Decision

The majority of the Supreme Court quashed the general warrant.

In the first of two concurring majority decisions, three of the Supreme Court justices emphasized that text messaging bears many of the hallmarks of traditional voice communication, including a reasonable expectation of privacy in the communication. They held that text messages should therefore be afforded the same strong and principled privacy protections as traditional voice communication in the context of the search warrant provisions of the Criminal Code. Importantly, the justices held that "technical differences inherent in new technology should not determine the scope of protection afforded to private communications." They concluded that prospective production of text messages from a telecommunications company is an "interception" under Part VI of the Code and an intercept authorization under that Part was therefore required.

In the concurring decision, two of the Supreme Court justices arrived at the same conclusion by a different route. They focused on the narrow role of general warrants, holding that they should be used sparingly as warrants of limited resort. The justices held that the search and seizure of texts that was authorized by the general warrant was substantively identical to a wiretap. It secured "prospective authorization for the delivery of future private communications" on a continuous basis for a period of time. The texts therefore needed to be obtained through the wiretap provisions in Part VI of the Code, and not through a general warrant.

The two dissenting justices agreed that texting is private communication, but drew a technical distinction between the interception of private communications, requiring authorization under Part VI, and the disclosure, use or retention of private communications that have already been intercepted. They concluded that the texts had already been lawfully intercepted by Telus and Part VI was therefore not engaged.

Taken together, the majority decision is a broad endorsement of the role of Part VI in protecting the privacy interests of Canadians.

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¹ Torys LLP represented the Canadian Civil Liberties association, an intervener, in this case.