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CONSTITUTIONAL ISSUES - Practice and procedure - Parties - Standing

Friday, December 08, 2017 @ 2:33 PM  

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Appeal from a judgment of the Ontario Court of Appeal affirming Jones’ convictions for firearms and drug trafficking offences and the pre-trial application ruling. Jones’ convictions rested on records of text messages seized from a Telus account associated with Waldron, his co-accused, pursuant to a production order obtained under s. 487.012 (now s. 487.014) of the Criminal Code (Code). As in the courts below, Jones challenged this production order under s. 8 of the Canadian Charter of Rights and Freedoms (Charter). He argued that law enforcement had to obtain a “wiretap” authorization under Part VI of the Code to seize records of historical text messages from a service provider in order for the seizure to comply with s. 8 of the Charter. Based on evidence gathered in an investigation conducted into firearms trafficking in the Ottawa area, the police obtained the production order directing Telus to disclose stored records of any incoming or outgoing text messages on a particular Telus subscriber account associated with Waldron. Telus complied with the production order and provided the requested records to the police. The records revealed a text message exchange concerning the potential transfer of a firearm. In his s. 8 Charter application, Jones led no evidence demonstrating that he authored and sent the impugned text messages. Instead, he argued that he was entitled to rely on the Crown’s theory that he was the author of these text messages. The trial judge found that Jones lacked standing to challenge the production order under s. 8 of the Charter. On appeal, the majority of the Court of Appeal upheld the trial judge’s decision regarding the s. 8 standing issue. The majority nevertheless went on to assess the lawfulness of the search at the second stage of the s. 8 inquiry and upheld the use of a production order to obtain records of historical text messages.

HELD: Appeal dismissed. Jones should have been permitted to rely on the Crown’s theory that he authored the text messages for the purposes of establishing his subjective expectation of privacy in the subject matter of the search. A s. 8 applicant could ask the court to assume as true for s. 8 purposes any fact that the Crown had alleged or would allege in the prosecution against him. In other words, where the facts alleged by the Crown, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she did not need to tender additional evidence probative of those facts in order to make out those same elements. On the totality of the circumstances, Jones had a reasonable expectation of privacy in the impugned text messages. Neither the absence of a contractual policy pertaining to confidentiality, nor the fact that the production order targeted a third party deprived him of that protection. Jones accordingly had standing to challenge the validity of the production order. There was no question that Telus initially intercepted the communications between Jones and Waldron, presumably pursuant to an exception under s. 184(2) of the Code. However, in light of the statutory scheme’s explicit distinction between interception, use and retention, and disclosure, it was clear that Telus’ subsequent storing and provision of the communications to law enforcement did not constitute additional interceptions. In this case, a Part VI authorization was unnecessary because the police did not seek an order authorizing the prospective production of future text messages. Accordingly, the search and seizure of Jones’ text messages were properly authorized by the production order provision in s. 487.012 of the Code (now s. 487.014), and did not breach Jones’ s. 8 Charter right.

R. v. Jones, [2017] S.C.J. No. 60, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté and M. Rowe JJ., December 8, 2017. Digest No. TLD-December42017012SCC