Supreme Court Says Police Wiretaps Can Be Used in Civil Proceedings

The Supreme Court of Canada has ruled that once a private communication has been "intercepted" for use in a criminal investigation, it becomes available to a party in a civil proceeding who may have a claim to it based on relevance. 

In the early summer of 2004, the Competition Bureau of Canada began an investigation (the “Octane Investigation”) into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec.   To carry out the investigation, the Competition Bureau obtained from the Superior Court of Quebec, 7 judicial authorizations that enabled it to intercept and record more than 220,000 private communications.  These authorizations for the wiretaps were obtained under Part VI of the Criminal Code of Canada.

 

In 2008 as a result of the Octane Investigation, a series of charges were laid against a number of people alleging that they had conspired to fix pump prices in certain regions of Quebec.  In July 2010 and September 2012, other charges for the same offences were laid bringing the total number of persons charged to 54.

 

Parallel with the criminal proceedings, certain individuals and the Automobile Protection Association, instituted a class action in the Quebec Superior Court against a number of persons, including the accused, alleging that they had breached duties imposed on them under the Civil Code of Quebec and under section 36 of the Competition Act, by engaging in anti-competitive practices.  The class action was subsequently authorized by the Quebec Superior Court. 

 

In support of the class action, the plaintiffs filed a motion for disclosure of documents under the Quebec Code of Civil Procedure and requested that the Federal Director of Public Prosecutions (“DPP”) and the Competition Bureau disclose to them all the private communications/wiretaps that had been intercepted in the course of the Octane Investigation.   Shortly before the motion was heard, the plaintiffs narrowed the scope of their request limiting it to the recordings that had already been disclosed to the accused in the parallel criminal proceedings.  The accused contested the motion.

 

The motions judge granted the plaintiffs’ motion and ordered that the Competition Bureau and the DPP disclose the wiretaps, but only to the lawyers and experts participating in the class action and screen the recordings to protect the privacy of third parties who had nothing to do with the class action.  

 

The accused persons appealed to the Quebec Court of Appeal.  In two separate judgments, the Court of Appeal declined to review the merits of the motion judge’s decision.

 

The accused persons further appealed to the Supreme Court of Canada ( see Imperial Oil v. Jacques, 2014 SCC 66).  The Supreme Court, in a 6–1 decision, dismissed the appeal.  The majority of the court (decision was written by Mr. Justice LeBel) held that a party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. 

The Supreme Court held that although section 29 of the Competition Act provides for confidentiality of the Competition Bureau’s record of investigation, it does not prohibit the disclosure of private communications intercepted under Part VI of the Criminal Code.  In addition, even though section 193(1) of the Criminal Code lays down the principle that it is unlawful to disclose or use an intercepted private communication without the consent of the originator or the intended recipient of the communication, there are exceptions to this general prohibition.  For example, section 193(2)(a) provides that a disclosure is not an offence if it is made “in the course of or for the purpose of giving evidence in any civil proceedings”.  Nothing in the words of this provision justifies limiting its application to the time when evidence is being given.  The documents requested at the exploratory stage of any civil proceeding may be requested “for the purpose” of testifying at the hearing.  The Court concluded that section 193(2)(a) does not have "facilitating the fight against crime "as its sole purpose; rather its objective is to ensure that courts will have access to all information relevant to the proceedings before them.

 

The Supreme Court held that the Quebec Civil Code of Procedure empowers a judge to order disclosure of documents relating to the issues between the parties that are in possession of a third party.  Judges have great discretion, but should generally favour disclosure.  Nevertheless, the judge must deny a request for disclosure if immunity from disclosure is either provided for in legislation or established by the courts.  Judges must remain sensitive to the duty to protect a person’s privacy.  However, the scope of the protection of the right of the innocent to privacy must always be assessed in light of the various interests at stake.

 

The majority of the Court reasoned that judges have great discretion to control the process of disclosing evidence at the exploratory stage of proceedings and to set conditions for and limits on disclosure.  Where the request of documents results from a criminal investigation, the judge must also consider the impact of disclosure on the efficient conduct of the criminal proceedings and on the right of the accused to a fair trial.

 

Here, the Supreme Court found that the motion judge’s order was consistent with those principles and there was no factual or legal impediment to disclosure of the documents.  The requested evidence was relevant.  Further, the scope of the disclosure order was limited so as to protect the right to privacy of all those whose communications were intercepted.  The disclosure would not hinder the efficient conduct of the criminal proceedings or violate the rights of the parties still facing charges to a fair trial. 

Regards,

Blair

 

Police need to obtain wiretap authority to access future text messages.

The Supreme Court of Canada recently released a decision which held that the police could not rely on the general warrant provisions of the Criminal Code (Code) to compel Telus Communications Company (Telus) to provide them with copies of future text messages sent or received by two Telus subscribers. Rather,  if the police wanted to obtain access to these text messages, they would have to obtain a specific wiretap authorization under Part VI of the Code.

Unlike most mobile telephone providers, Telus routinely makes electronic copies of all text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.   In the case decided by the court, the police obtained a general warrant which required Telus to produce on a daily basis any future messages which would be sent or received during a two week period.  Telus applied to quash the general warrant arguing that it constituted an interception of private communications and therefore required authorization under the wiretap authorization provisions in Part VI of the Code.

The Ontario Superior Court of Justice dismissed Telus' application and the appeal went directly to the Supreme Court of Canada.  The majority of the court allowed the appeal and ordered that the general warrant be quashed.

Justice Abella wrote that, "The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI of the Code. The general warrant provision of the Code should be broadly construed to ensure that it is not used to circumvent the more specific or rigorous pre-authorization requirements for warrants, such as those found in Part VI". Justice Abella then embarked on interpreting the meaning of the word "intercept" and held that the word must be broadly interpreted and must focus "on the acquisition of informational consent and the individual's expectation of privacy at the time the communication was made".

Finally, the learned judge held that text messages are private communications and even if they are stored on a service provider's computer, their production requires authorization under Part VI of the Code. If Telus did not maintain its computer database there is no doubt that the police would be required to obtain an authorization under Part VI of the Code to secure the prospective production of text messages. Most service providers do not routinely copy text messages to a computer database. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wire tap authorization under Part VI of the Code to compel the production. This creates a "manifest unfairness" to individuals who are unlikely to realize that their choice of telecommunication service provider can dramatically effect their privacy. Using Telus should not deprive it subscribers of the protection of the Code to which every other Canadian is entitled.

Regards,

Blair