Sep 11, 2020

R v July, 2020 ONCA 492

R. v. July, 2020 ONCA 492 (CanLII)

Key Takeaway: Police officers do not need to prove it is necessary for an investigation in order to seize old text messages stored by a cell phone provider. They only need to show "reasonable and probable grounds" that an offence has been committed or will be committed and that there is likely relevant evidence to be found in the messages.

Investigative necessity means that the police can obtain a production order from a judge to seize physical or electronic records, but they must first prove that they cannot acquire this evidence through any other means because:

  • Other investigative procedures have been tried and failed;
  • Other investigative procedures are unlikely to succeed; or
  • The urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Introduction and Arguments on Appeal

The principle issue in this case was whether the seizure of historical text messages based on a production order granted pursuant to s. 487.012 (now s. 487.014) of the Criminal Code and served on a third party service provider, is constitutional.

Mr. July (“the appellant”) argued that the right to be free from unreasonable search and seizure under s. 8 of the Charter was violated because the police failed to establish “investigative necessity” when they obtained a production order for the search and seizure of J’s historical text messages. He argued that investigative necessity is constitutionally required for future, non-existent communications, commonly referred to as wiretaps or intercepts, and should therefore be equally required for an order to produce historical text messages. In addition, he argued that the law authorizing the production order was arbitrary and unreasonable due to the different requirements for the seizure of historical as opposed to prospective text messages.

The Crown respondent disputed any need to establish investigative necessity. It argued that it is not a constitutional requirement for wiretaps. They argued establishing this requirement would be contrary to settled case law would impose an unjustified and unreasonable restriction on the ability of law enforcement to seek such records through production orders.

Held: Appeal dismissed.

Sidebar: Section 8 of the Charter

Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.” The Majority of the Supreme Court agreed in R v Jones, 2017 SCC 60 that to establish a breach of section 8, a claimant must first show that a state act invaded his or her reasonable expectation of privacy in the subject matter of the search. Second, the claimant must show that the search or seizure was itself unreasonable.

Sidebar: Production Orders Under the Criminal Code

The provision authorizing general production orders of the kind considered in this case can be found in section 487.014 (formerly s. 487.012) of the Criminal Code.

Justice Doherty described the parameters of a production order in R v Vice Media Canada Inc, 2017 ONCA 231. He stated that a production order may be authorized by a justice or judge if satisfied that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. The justice or judge can authorize the production order if these conditions exist. However, they also have the discretion to choose not to. In deciding whether or not to grant the order, they must consider the impact of that order on the constitutionally protected rights of both the order’s target and the public. The more significant the negative impact, the more important the grounds for seeking the order becomes.

Background Facts

In early 2011, the Toronto police established a task force to investigate four murders that took place over 75 days in fall 2010. Mark Moore was identified as the prime suspect. The police obtained a production order under s. 487.012 of the Code for records relating to the phone number associated with Moore, in order to obtain text messages between Moore and the victim. The order required Telus to produce all text messages related to that number from August 14, 2010 to January 11, 2011.

On examining the records, the police found text messages discussing the potential sale of firearms by the appellant to Moore. Based on these text messages, the police then were authorized to intercept further communications sent to the appellant. They revealed that the appellant was planning to sell a gun on August 18, 2011. On that afternoon, the police arrested the person who bought the gun. They conducted further surveillance on the appellant and arrested him on October 13, 2011. On November 6, 2012, he was indicted on four counts of firearms trafficking offences.

The appellant brought a s. 8 Charter application at trial to exclude the text messages obtained from telus on the basis that they were obtained in an unreasonable search and seizure. The application judge dismissed the applications, and the appellant subsequently pled guilty.

Analysis

On appeal, the appellant stated in an affidavit while he pled guilty after losing his Charter application, he always intended to appeal his conviction. He stated that he was not advised that by pleading guilty, we would be waiving his right to appeal that decision. The Crown consented to the admission of fresh evidence, and it was granted by the court, allowing the appellant to set aside his guilty plea.

Was There a Reasonable Expectation of Privacy?

There was no dispute that the appellant had a reasonable expectation of privacy in historical text messages stored by Telus. The principal question is whether the search and seizure was reasonable under the second branch of the s. 8 test. A search “will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” See R v Collins at p. 278, R v Jones at para. 57. The appellant accepted that the historical text messages may be the subject of a production order under s. 487.012 of the Code and that the police met all the statutory requirements. The issue is then whether the law itself is reasonable.

Is Section 487.012 of the Criminal Code Unreasonable?

Investigative Necessity

The appellant asserted that s. 487.012 is unreasonable because it did not require the police to establish investigative necessity when they obtained a production order to compel Telus to produce records of historical text messages sent and received by Moore. The appellant argued that the seizure of these messages without the need to establish investigative necessity is unreasonable and a violation of s. 8. The Court rejected this argument by first reviewing the case law on wiretaps and determining that if wiretaps did not constitutionally require investigative necessity, than neither did production orders under s. 487.012.

Section 186 of the Criminal Code allows the police to perform wiretaps and intercept the private communications of third parties where none of the parties to the communication consent to the interception (a “third party intercept”). To authorize a third party intercept, a judge must be satisfied (a) that it would be in the best interests of justice to do so, and (b) that other investigative procedures have been tried and failed, other investigative procedures aren’t likely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. This latter requirement, part (b) is known as the investigative necessity requirement.

Wiretaps and Investigative Necessity

Contrary to the appellant’s argument, the court stated that investigative necessity is not a constitutional requirement for wiretap authorizations. This is based on prior cases. In R v Garifoli, [1990] 2 SCR 1421, the Supreme Court stated that “reasonable and probable grounds” to believe that an offence has been committed and that there is evidence to be found at the place of the search is the minimum constitutional requirement. While investigative necessity is written into the text of section 186 of the Criminal Code, it is not constitutionally required.

If investigative necessary is not a constitutional requirement for wiretap authorizations, the court reasoned that it is also not a constitutional requirement for production orders because wiretaps are more intrusive of privacy interests than production orders. Wiretaps are sweeping and target future communications based on an investigative theory. The subject matter is speculative. By contrast, the scope of a production order for historical text messages may be focused, limited and less speculative than a wiretap.

The court concluded that after rejecting the appellant’s argument on this point, it followed that the law was not unreasonable.

Other Arguements

The Court gave four other reasons why the Appellant’s argument should be rejected.

First, production orders have built in safeguards. The statutory requirements must be met. Judicial discretion must be exercised with consideration to the individual’s interest in their privacy balanced with the state’s interest in intruding on that privacy for the purposes of law enforcement.

Second, the Crown argued that an investigative necessity requirement for all seizures of historical text messages would unduly hamper the ability of law enforcement to investigate and prevent crime without a corresponding benefit to the legitimate privacy interests of Canadians. To obtain a production order, thee must be reasonable grounds to believe both that an offence has been or will be committed and that the record sought will give evidence of the commission of the named offence. There may be cases where police receive information about communications that are central to the investigation of an offence, but it would be unreasonable to require that the police prove investigative necessity.

Third, the investigative necessity would be difficult to reconcile with other Supreme Court jurisprudence. Text messages can already be seized from phones and other devices with ordinary search warrants or searches incident to arrest without any investigative necessity requirement, and these seizures have been upheld on appeal.

Fourth, Parliament has not enacted any limitation on the ability of law enforcement to use production orders to seek historical text messages. Amendments were made to the Code as recently as 2014, and no investigative necessity requirement was incorporated into s. 487.014 at this time.

Conclusion

Based on prior rulings by the Supreme Court on the topic, the court rejected the appellant’s argument that investigative necessity is a constitutional requirement for wiretaps. Therefore, it follows that it should not be a requirement for historical text messages. The appeal was dismissed.