Unlike most telecommunications service providers, TELUS
temporarily stores electronic copies of text messages sent and
received by its customers. In 2010, the Owen Sound Police Service
obtained a "general warrant" under Part XV of the
Criminal Code requiring TELUS to disclose copies of any
text messages sent or received by two of TELUS' customers
throughout a two-week period in the immediate future.
A general warrant is only available if authorization for a
method of investigation is not available under another, more
specific, provision of the Criminal Code or another
federal statute. TELUS applied to quash the general warrant on the
basis that it purported to authorize the interception of private
communications, for which a "wiretap" authorization must
be obtained under Part IV of the Criminal Code.
In R. v. TELUS Communications Co.1, a majority of the
Supreme Court of Canada agreed with TELUS that the general warrant
was invalid. According to the majority, the text message
communication process included TELUS' temporary storage of
messages in its computer database: "The use of the word
'intercept' implies that the private communication is
acquired in the course of the communication process", which
"encompasses all activities of the service provider which are
required for, or incidental to, the provision of the communications
The majority also emphasized the importance of ensuring that
"intercept" is interpreted in a manner that keeps pace
with technological developments: "
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
Had the police acquired the same private communications directly
from the transmission stream, instead of from the stored copies,
the Crown concedes that a Part VI authorization would be required.
The level of protection should not depend on whether the state
acquires a copy of the private communication that is being
transmitted or a copy that is in storage by a service provider as
part of the communications process. Parliament drafted Part VI
broadly to ensure that private communications were protected across
a number of technological platforms...
The communication process used by a third-party service provider
should not defeat Parliament's intended protection for private
In a dissenting decision, a minority of the Court distinguished
between interceptions and the disclosure of previously intercepted
messages. The minority would have upheld the general warrant on the
basis that it was TELUS that "intercepted" the text
messages (lawfully, in accordance with a statutory exemption) when
it copied them to its database, and that the general warrant did
not authorize interceptions, but rather simply required TELUS to
disclose certain messages that TELUS had previously
The minority therefore expressed concern that the majority's
broad interpretation of "intercept" could result in the
more stringent "wiretap" requirements being applied to
the search and seizure of personal communications, such as email
messages and stored copies of Internet chats, stored on
According to the minority, this "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 might be argued that the majority's decision avoids the
concern expressed by the minority, as it appears that the
"wiretap" requirements are triggered only when the police
seek prospective access to future text messages – and when
those future messages are stored "as part of the
What is perhaps most clear from the R. v. TELUS
Communications Co. case, however, is that the ongoing
evolution of technology will continue to present difficult legal
and interpretive challenges for the legislatures, the courts and
the police, as well as for businesses and individuals.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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