| R. v. Belcourt, 2015 BCCA 126 (CanLII) Lien vers la décision |
[42] In my opinion, it is necessary to closely examine the nature of the private communications sought to be obtained in this case to determine the appropriate form of authorization required.
[43] The text messages in question were transmitted and received on or before March 3, 2010. More than 30 days passed before the judicial authorization to seize the stored copies was granted. In my opinion, it is illogical to characterize a technique that seeks production of stored messages as “prospective”.
[45] I readily concede that the acquisition of a text message by the police in this interim transit period could constitute an interception within the plain meaning of the word. However, this is because the recipient has yet to receive the message, and may never receive the message. In stepping between a sender and recipient to acquire a message and its content before it is received, and when it may never be received, the police are “intercepting” the message in the most literal sense of the word.
[46] The distinctive feature of the police investigation discussed above is that they interject themselves in the communication process by using an investigative technique that comes between the sender and receiver of a message. As I discuss below, and as Moldaver J. observes in his reasons in Telus,this is exactly the type of technique that Part VI authorization was meant to encompass. This investigative technique, however, is different from the case where the police seek to obtain a stored electronic record of a text message after it has been sent and received.
[47] The detailed requirements found in Part VI exist to address the fact that the evidence sought to be acquired by the police has not yet come into existence at the time that the judicial authorization for its acquisition is being sought: see R. v. Finlay (1985), 1985 CanLII 117 (ON CA), 23 C.C.C. (3d) 48 (Ont. C.A.) at 63-64. Indeed, the constitutionality of Part VI derives from the safeguards that are imposed by the role of the judge granting the authorization, which exist because of the danger that the interception of private communications could easily transform into a fishing expedition: Finlay78; see also R. v. Araujou, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992 at para. 29. Put simply, it is inherent in the nature of Part VI authorization that the investigative technique to be utilized by the police is prospective, which requires a distinct form of judicial authorization in comparison to other search warrant provisions. In my view, applying Part VI to evidence already in existence is a misapprehension of the form of authorization provided for in that section of the Code.
[48] It is a necessary consequence of the very nature of the scheme that is set out in Part VI that any retrospective investigation technique is outside its ambit. In contrast to the prospective operation of Part VI, search warrants, whether part of the Code or another Act of Parliament, may not be issued in anticipation of an event or situation in the future which (if it existed in the present) would justify issuing a search warrant: see e.g., R. v. Cameron(1984), 1984 CanLII 474 (BC CA), 16 C.C.C. (3d) 240 (B.C.C.A.) at 242. On this point, it is important to note that the law regarding search warrants applies to production orders: see e.g., Canadian Broadcasting Corp. v. Manitoba (Attorney General) (2009), 2009 MBCA 122 (CanLII), 250 C.C.C. (3d) 61 (Man. C.A.).
[49] The requirement that the search warrant only pertain to the search and seizure of specified things already in existence is essential to the operation of the safeguards inherent in the authorization scheme common to s. 487, including s. 487.012 (i.e., that there are reasonable grounds to believe that the specified articles to be seized “will afford evidence with respect to the commission of an offence”): see e.g., CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743.
[50] As I have said, the acquisition of stored, historical communications is not, and cannot be, prospective. As a result, it is outside the ambit of Part VI of the Code to require that existing communications stored in electronic form be authorized under that section. In my view, requiring Part VI authorization for acquisitions of evidence already in existence is inconsistent with the law of search and seizure in Canada.
[52] The mischief created by an overly broad application of the reasons in Telus is exemplified by R. v. Sandhu, 2014 BCSC 303. In that case, the court found that text messages sent by an accused and received and stored on the phone of an extortion victim were “intercepted” when read much later by the police. In my opinion, such a finding is clearly beyond the scope contemplated by the decision in Telus. With respect, the court in Sandhu focused too narrowly on the purported nature of the intrusion by the police into the privacy interest of the accused without regard to the character of the evidence that the police sought to acquire to aid in their investigation.
[53] As the Crown points out in its factum, the reasoning in Sandhu is problematic because it would have the effect of requiring Part VI authorization for a plethora of investigative techniques that, as yet, have not and have never required such authorization. As a general principle, I consider the court inSandhu erred in failing to closely consider the nature of the evidence sought to be obtained by police or the investigative technique to be used in obtaining the evidence. This error misdirected the court, resulting in an overbroad interpretation of Part VI.
[54] The nature of the intrusion by an investigative technique into the privacy interest of the target of an investigation does not, by itself, determine the appropriate form of authorization required for the police to lawfully seize evidence relevant to an investigation. For example, it is well-established that the privacy interests that are at issue in personal and workplace computers is substantial: see e.g., R. v. Morelli, 2010 SCC 8 (CanLII), at para. 105; R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 S.C.R. 34 at para. 3. That does not mean, however, the general search and seizure provision in s. 487 is inadequate for the purpose of ensuring that the state intrusion into the privacy of the investigation target is justified. The appropriate form of authorization is determined by the nature of the evidence sought to be acquired by the police and the type of investigative technique to be used in acquiring it. This explains the separate schemes for the production of data or documents held by third parties (s. 487.012), the production of financial data or documents in particular (s. 487.013) and the acquisition of bodily (DNA) samples (ss. 487.05-487.091). Where the question concerns the proper form of prior judicial authorization, it is imperative to pay close attention to the evidence that the police seek to acquire.
[55] In conclusion, I would not give effect to the argument that the use of a production order in the circumstances of this case constituted a breach of Belcourt’s privacy rights under the Charter. Privacy rights are not absolute. In this case, the acquisition of the historical text messages by police was authorized by law by way of s. 487.012. No issue has been raised as to the reasonableness of that provision and, as I discuss below, there is no issue as to the reasonableness of the search conducted by police. Consequently, there has been no Charter breach: see Collins v. The Queen, 1987 CanLII 84 (SCC),[1987] 1 S.C.R. 265.
[59] As a result of that information, the production orders were directed at two specific telephone numbers and all incoming and outgoing calls made to and from those numbers within a particularly narrow period of time. The issuing judge also attached four conditions to the order, including the non-production of data subject to solicitor-client privilege, and the non-production of “mail” (which I understand to mean the messages themselves) unless or until it is delivered or deemed by law to have been delivered to the addressee (which addresses the concern regarding the status of messages that might be “in transit” at the time the production order is pronounced).
[60] The foregoing authorization cannot be said to be overbroad. It clearly establishes that the police had reasonable grounds to believe that the specific information mentioned in the ITO would be found in the sought-after text message communications, which satisfies the requirement in s. 487.012(3)(b). There is a clear evidentiary nexus between those items sought to be disclosed under the production order and the offence which was being investigated by the police. As a result, there is no question that the judge could have, on the basis of the ITO, determined whether the text messages were “relevant or rationally connected to the incident under investigation”: CanadianOxy Chemicals Ltd. at 750-751.
[61] I note that, in any event, the production order in this case clearly provided the voir dire judge with sufficient material to assess whether the police had adequate grounds for seizing the text messages. The materials included information on the following matters: the facts relied upon to justify a belief that the authorization sought be given together with the particulars of the offence under investigation; the type of private communication that was to be acquired by the police; the identity of all known persons of whose private communications there were reasonable grounds to believe may assist with the investigation of the offence; along with a description of the sought-after messages and the proposed mode of acquiring them; and the period of time over which access to the communication was sought. This is the kind of evidence that would have been adduced to obtain authorization under Part VI (see s. 185(1)(c)-(g)). In this regard, it is difficult, in my view, to say that Belcourt did not have the benefit of a probing inquiry into whether an intrusion into his constitutionally protected privacy interest was warranted by public interest in having the police investigate a criminal offence: see e.g., Araujo at para. 29.
[62] Finally, in my opinion, the search conducted, pursuant to the production order, was not the kind of intrusive search discussed in R. v. Vu, 2013 SCC 60 (CanLII).
[63] The Court in Vu was concerned with the issue of whether the doctrine that permitted police to search any receptacle in a location authorized for search included the authorization to search any computer or cellar device that the police found at that location. The Court concluded that prior authorization was required for the police to search the computer or cellular device discovered in the execution of a search warrant: Vu at paras. 40-45. Prior and specific authorization was required on account of the substantial privacy interest that attaches to information stored on a computer or cell phone.
[64] In this case, the police had the kind of prior authorization that the Court in Vu held was required so as to ensure that the state’s interest in conducting the search justifies the intrusion into individual privacy on the basis of the production orders issued for the text messages under s. 487.012. As I described above, the search was otherwise reasonable and authorized by law. It was, therefore, not intrusive.
