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Wednesday, September 16, 2020 @ 6:13 AM  

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Appeal by the accused from conviction for trafficking in firearms. During a 2011 murder investigation, police obtained a production order under s. 487.012 of the Criminal Code for records relating to the phone number associated with M, a suspect. On examination of those records, the police discovered text messages in late 2010 and early 2011 to a cell phone number registered to the appellant. In these messages, the appellant and M discussed the potential sale of firearms and the previous sale of ammunition by the appellant to M. Based on these text messages, the police obtained an authorization to intercept communications associated with various numbers pursuant to s. 186 of the Code. Police identified the appellant as a target and intercepted messages sent and received on his phone. The intercepted messages revealed the appellant was arranging the sale of a gun. The appellant argued his right under s. 8 of the Canadian Charter of Rights and Freedoms (Charter) was violated because the police failed to establish investigative necessity when they obtained the production order for the search and seizure of his historical text messages. He argued that investigative necessity was constitutionally required for wiretaps 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.

HELD: Appeal dismissed. Based on the controlling and settled jurisprudence, investigative necessity was not a constitutional requirement for wiretap authorizations. As the jurisprudence did not require that investigative necessity be a constitutional requirement for wiretaps, investigative necessity was not a constitutional requirement for production orders for historical text messages. A production order was not without safeguards. The statutory conditions must be met and s. 487.012 was permissive in nature, and the presiding justice had discretion to grant or refuse the requested production order even if the statutory conditions were met. 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. The seizure of the text messages did not infringe s. 8 of the Charter because the distinction between historical and prospective text message searches was not arbitrary.

R. v. July, [2020] O.J. No. 3314, Ontario Court of Appeal, S.E. Pepall, C.W. Hourigan and L.B. Roberts JJ.A., August 5, 2020. Digest No. TLD-September142020005