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Part VI of the Criminal Code creates a comprehensive scheme that must be followed before police are permitted to intercept private communications. This section has historically been used to obtain a judicial authorization to listen in on private telephone calls in real time.
S. 487.01 of the Criminal Code contains the “general warrant” provisions. This section applies only if the Criminal Code does not provide a more specific scheme, such as part VI.
Part VI authorizations contain important limitations that are not present for a general warrant, including:
- Requires proof that other investigative steps have failed or are unlikely to succeed;
- Limits the offences interceptions can be used to investigate, many minor offences are not included;
- Authorizations are for a limited time period;
- Authorizations must be disclosed to the target(s) after the authorization expires.
In the case recently argued before the Supreme Court of Canada (Telus Communications Company v. The Queen), the question was whether police need to obtain a part VI authorization to have access to text messages sent and/or received by a target for a specified future time period or whether they can rely on the general warrant provisions. Read Peterborough Examiner
The argument in the case focused on the interpretation of the term “intercept.” The real question is whether we should afford text messages the same protections as telephone calls.
The answer is yes. Listening in on private communications is a significant intrusion into the privacy rights of individuals. Of course, these privacy interests have to be counter-balanced against the public’s interest in the investigation and prosecution of crime. Parliament has addressed this tension and created a thorough and well-balanced scheme for authorization under part VI.
The definition of “intercept” in part IV was enacted in 1974. Since that time communication mediums have changed drastically; first by the introduction of cellphones and then by the explosion of text-based communications including email, SMS and BBM. It has become common for individuals to have lengthy, detailed and extremely private conversations via text. To treat text-based conversations differently than voice conversations in the context of the privacy interests of individuals is to create an artificial legal distinction out of touch with modern society.
If police are permitted to rely on the general warrant provisions they could, in essence, listen in on a private conversation between two people via text message, in almost real time, for an unlimited time period to investigate a minor offence. Further, and perhaps most disturbingly, the targeted individual would never know that their privacy was so severely violated.
The sphere of private information is shrinking as technology evolves. The Internet and social media sites have allowed anyone with a computer to learn a significant amount of information about most people. The state can obtain a warrant to search a computer or cellphone and have access to a huge amount of highly-private information. We must take care not to surrender the entire sphere as we seek to interpret dated terms in the 21st Century.