Hot Off the Bench: Texting and the Supreme Court

Canadian courts continue to grapple with the implications of different forms of communication, technology and the right to privacy, in this electronic age.

Last week, the Supreme Court of Canada released a decision with respect to the procurement of text messages by authorities in the criminal context. In R. v. Telus Communications Co., 2013 SCC16, the Court was asked to decide whether a general search warrant was sufficient to secure the production of text messages, both existing and “prospective”, stored by Telus for two subscribers for a two week period of time. Telus’ policy is to retain its subscribers’ text messages for a period of 30 days.

Noting that texting is “in essence, an electronic conversation” the Court held that the transmission method was the only difference between texting and a voice communication. As such, text messages are to be treated as private conversations, requiring more than a general search warrant.

Practically speaking, given the privacy protections afforded by the Criminal Code, this means that authorities will require wiretap (interception) authority, which is more difficult to obtain than a general warrant, to secure text messages.

​The court was not unanimous in its decision, illustrating the complex nature of these issues. We will continue to watch with interest as the Canadian courts wrestle with these issues and as technology continues to evolve.