The Supreme Court of Canada in R v. Telus has ruled that text messaging is essentially another form of conversation and should receive the same protection to which private communications are entitled under the Criminal Code. The Court held that text messages are private communications, even if they are stored on a service provider's computer.

However, the Court was divided in its opinions on what type of warrant is needed for police to gain access to a text message, given the fact that unlike traditional voice communication, a text message may or may not be delivered to its intended recipient 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 cell tower, and whether the user has accessed the message. Furthermore, unlike voice communications, text communications, by their nature, generate a record of the communication which may easily be copied and stored.

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 private communication exists in more than one place and may therefore be acquired by the state from the transmission stream and from computer storage. In other words, the same private communication may be intercepted by police more than once from different sources.

Justices Abella, LeBel and Fish felt that a narrow or technical interpretation of intercept under the Criminal Code that requires the act of interception to occur simultaneously with the making of the communication itself, was not appropriate in addressing new, text-based electronic communications.

The Court stated that "[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 the concept of interception. There is no requirement in the Code definition of intercept that the interception of a private communication be simultaneous or contemporaneous with the making of the communication itself. If Parliament intended to include such a requirement, it would have included it in the definition of intercept. Instead, it chose to adopt a wider definition, consistent with Part VI's purpose to offer broad protection for private communications from unauthorized interference by the state."

Moldaver and Karakatsanis JJ did not think it necessary to ponder the definition of "intercept" as they found the authorities failed to establish one of the prerequisites needed to obtain a general warrant, and hence they joined Abella, LeBel and Fish JJ, in allowing the appeal.

Interestingly, Justices Cromwell and McLachlin in their dissent found a distinction under the Code between intercepting, i.e. listening to, recording or acquiring a communication or the substance, meaning or purpose thereof, and using or disclosing a private communication. Cromwell and McLachlin JJ held that when Telus provided the police with copies of text communications from its databases that it had previously intercepted and stored for its own lawful purposes, it was disclosing the communications and the police were not intercepting private communications. The dissenting Justices held that the general warrant that authorized a technique that was different from an interception was sufficient.

The dissent noted that stored private communications have long been accessible to police under ordinary search warrants and the ruling by Abella J would run counter to a line of cases in which Canadian courts have found that search warrants are sufficient to allow police to access documents and data stored on a computer.

It will be interesting to see how this decision will be applied in the future in the context of emails and Internet chats.

http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12936/index.do