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LEGAL REPORT/Criminal & Forensic were authorized after the messages were stored," wrote Abella. The status of old text messages is one many wish the Supreme Court would have determined, to provide clarity to the lower courts. "The production order regime has been misapplied, to the detriment of the privacy interests of Canadians," says Edward Sapiano, a Toronto defence lawyer. He notes at the initial Superior Court hearing in Telus, the applications judge was told that in the previous three years, the company had received about 10,000 production orders for text-based communications. The scope of production orders can be quite broad and should be subject to a higher level of judicial scrutiny, says Sapiano. "Are private communications protected or are they protected for the brief seconds or minutes you are actually having the communications?" he asks. Sapiano has filed a motion on behalf of a client in an upcoming trial to exclude several months worth of past text messages obtained through production orders, on the basis a Part VI authorization should have been required. The application, to be heard early in 2014, is believed to be one of the first cases where a Superior Court has been asked to address this issue directly since the Supreme Court findings in Telus, which provided a variety of opinions. The decision written by Abella was joined by only two other judges (Justice Michael Moldaver wrote a concurring judgment, joined by Justice Andromache Karakatsanis, which was more narrow in scope, while Chief Justice Beverley McLachlin and Justice Thomas Cromwell were in dissent and concluded a general warrant was sufficient even for seizure of prospective text messages, because they are stored on the databases of service providers). Steven Penney, a University of Alberta criminal law professor, says in looking at the full context of relevant Criminal Code sections, a production NEW EDITION CANADIAN MEDICAL LAW: AN INTRODUCTION FOR PHYSICIANS, NURSES AND OTHER HEALTH CARE PROFESSIONALS, 4TH EDITION JOHN C. IRVINE, M.A. (JURIS.), B.C.L., PHILIP H. OSBORNE, LL.B. (HONS.), LL.M. AND MARY SHARIFF, B.Sc., LL.B., LL.M., Ph.D. Canadian Medical Law is your first stop for research. A remarkably user-friendly guide to the legal issues relating to patient care and treatment, it gives you a comprehensive review of medical law in Canada from a multi-jurisdictional perspective – prepared by renowned experts in the area. Save time with all the relevant medical/legal principles and concepts at your fingertips. Work efficiently and confidently with helpful case studies, sample advance directives and other planning tools prepared by renowned experts. 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TRUSTED. 48 November/December 2013 www.CANADIAN L a w ye r m a g . c o m order should be sufficient for obtaining a past text message that has been stored (either saved on a wireless phone or on the database of a provider). "You don't need Part VI, because it is not an intercept," says Penney, who has written extensively on search and seizure law. He equated the requirement for a production order or search warrant as being similar to what police must do to search a computer hard drive, for example, to see if it contains illegal images. In one of the only rulings that has directly addressed whether the seizure of past text messages comes under the Part VI provisions, Ontario Superior Court Justice Ian Nordheimer concluded they do not. In his 2012 decision in R. v. S.M., Nordheimer agreed since the definition of intercept in the Criminal Code includes the word "acquire," it may suggest the seizure of past texts is an intercept. However, he stressed it is necessary to read the contents of Part VI "as a whole" and in doing so suggested the section is about the "contemporaneous seizure" of communications. "It is clear that the harm, which the provisions of Part VI were to guard against, was the acquisition by the state of personal communications that would otherwise be unattainable because their existence disappears once the words are spoken," wrote Nordheimer. "The seizure of text messages falls outside the scope of Part VI because a digital record of them continues to exist after the communication is over." The ruling issued by Nordheimer was released before the decision in Telus and Sapiano points to Abella's reasons where she concluded the definition of intercept did not mean it had to be contemporaneous or simultaneous with the making of the communication. Instead, the analysis should focus on "an individual's expectation of privacy at the time the communication was made," she wrote. In his reasons though, Moldaver came to the same conclusion on the result of the appeal, but he explicitly declined to define intercept within the Part VI provisions. As a result, the various reasons in Telus "do not quite resolve the status of stored messages," says Scott Hutchison,

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