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LEGAL REPORT/Forensics & criminal law Telus challenged but was dismissed by the applications judge. Telus was then granted leave by the Supreme Court to challenge that decision. The federal Crown, supported by the Ontario Ministry of the Attorney General as an intervener, argued there was no need to obtain an "intercept" warrant under the more rigorous Part VI provisions of the Criminal Code, in part because Telus routinely stores electronic copies of all text messages sent by its customers on a database for 30 days. In essence, the Crown suggested these messages were stored and not intercepted. Justice Rosalie Abella, who wrote the main judgment with justices Morris Fish and Louis LeBell concurring, pointed out if messages are not stored there is "no doubt" police would require a Part VI authorization to obtain texts prospectively. To accept the Crown's argument would create a "manifest unfairness" for the privacy rights of individuals who were customers of service providers that au- tomatically made copies of text messages. In describing the nature of text messages, Abella accepted they fit within a definition of private communications, just as a phone call would. "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," wrote Abella. In a separate opinion, justices Michael Moldaver and Andromache Karakatsanis concurred with the result, but declined to decide whether seizure of the text messages constituted an "intercept" under the Part VI provisions. "On the facts of this case, when one cuts through The Supreme Court of Canada's decision in R. v. TELUS Communications Co. is available at tinyurl.com/SCC-Telus 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," wrote Moldaver. "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 pre-conditions," said Moldaver. In dissent, Chief Justice Beverly McLachlin and Justice Thomas Cromwell concluded a general warrant was sufficient, because Telus legally made copies of the texts. "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," wrote Cromwell. The two judges disagreed there was a greater privacy infringement as a result of the issuing of a general warrant and noted it was LEAVE NO DOUBT WITH THE CONTRACTS YOU NEGOTIATE OR DISPUTE CHITTY ON CONTRACTS, 31ST EDITION GENERAL EDITOR: HUGH BEALE, Q.C. (HON.) Chitty on Contracts, 31st Edition has it all covered: the formation of contracts, the capacity of parties, terms, illegality and public policy, joint obligations, third parties and assignment, performance, discharge, and remedies. In-depth chapter contents headings and the index mean that you'll quickly find the right section and paragraph you need. VOLUMES 1&2 HARDCOVER ORDER # L14090-E31-65203 £455 GBP Jurisdiction: Commonwealth, United Kingdom, International October 2012 Sweet & Maxwell Other options available. Call for details. Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. 44 M ay 2013 www.CANADIAN Chitty on Contracts is also available as an eBook on Thomson Reuters Proview™. AVAILABLE RISK-FREE FOR 30 DAYS Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Email: carswell.international@thomsonreuters.com L a w ye r m a g . c o m

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