Canadian Lawyer

LEGAL REPORT/Criminal & Forensic A very texting question The legal test is not settled as to whether the seizure of past communications deserves the same protection as given to future electronic messages. I n the three decades federal law enforcement has been required to report to Parliament on the number of times it receives judicial authorization to conduct electronic surveillance on individuals, its use has declined steadily. From a high of 1,300 warrants issued for audio and video surveillance in 1976, the number dropped to 95 in 2012 and the annual total was just over 100 intercepts in each of the previous four years. The irony in the steep drop in seeking approval for wiretaps is seizure of private communications by local, provincial, and national police is now likely higher than ever and the legal hurdle is arguably much lower than the test for what are known as Part www.CANADIAN VI authorizations under the Criminal Code. The private communications of thousands, if not tens of thousands, of people are seized each year in Canada by law enforcement through production orders, which can be issued by justices of the peace rather than a Superior Court judge as is required for a Part VI authorization. The other main difference is these communications are not from real-time phone calls, but archived text messages stored by wireless phone providers on their databases. For law enforcement, it is an effective tool, since the text messages may often prove to be more incriminating than wiretaps on suspects who might already have some idea they are under police surveillance. In terms of the privacy rights of individuals who believe it should not be easy to obtain a text, especially one that is deleted, the legal test is not settled as to whether past communications deserve the same protection as future electronic messages. In its decision this spring in R. v. Telus Communications Co., the Supreme Court of Canada provided at least part of the answer. The majority decision, written by Justice Rosalie Abella, concluded text messages are indeed private communications. As a result, a request by police for a service provider to capture future texts requires a Part VI authorization. However, since the Telus appeal involved only "prospective" text messages, "we need not address whether the seizure of the text messages would constitute an interception if it L a w ye r m a g . c o m November/December 2013 47 Alexi Vella By Shannon Kari

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