Intercepting Text Messages in R v Doroslovac: An Unreasonable Search or Seizure?
Does an authorization to intercept an individual’s private communications include the ability to intercept text messages? The Ontario Court of Appeal recently considered this question in the case of R v Doroslovac, 2012 ONCA 680 [Doroslovac], which arose from an authorization to intercept the telephone calls of Doroslovac’s acquaintance, Ilic. After intercepting several text messages between the two men, the police arrested them for possession of cocaine for the purposes of trafficking.
The interception of private communications is considered to be a search or seizure. As a result, this matter is governed by s. 8 of the Charter, which protects individuals against “unreasonable search of seizure.” In R v Collins,  1 SCR 265 [Collins], the court determined that a reasonable search is one that is authorized by a reasonable law and conducted in a reasonable manner. Thus, to pass constitutional muster, an interception of private communications must first be authorized by a judge pursuant to s. 186(1) of the Criminal Code, RSC, 1985, c C-46 [Criminal Code].
The Trial Judge’s Decision
At trial, counsel for Doroslovac challenged the admissibility of the text messages on the grounds that they were intercepted in a manner that did not comply with the terms of the authorization. On the voir dire, the trial judge agreed and emphasized the fact that there was no way to confirm that Ilic was the person using the phone at the time the text messages were intercepted. Without confirmation that Ilic “was the author of the intercepted messages,” he concluded the search was unreasonable and the messages were deemed inadmissible pursuant to s. 24(2) of the Charter.
The Court of Appeal
On appeal, the Crown argued that the trial judge made an error of law when he interpreted “the relevant terms of the authorization.” More specifically, the Crown contended that requiring certainty of authorship effectively eliminated the interception of text messages “despite other authorization terms that expressly permit it.” Rather than reading each paragraph of the authorization in isolation, the Crown submitted that the “authorization must be read as whole and in a way that gives a common sense meaning to all of its terms.”
The respondent, on the other hand, submitted that “the judge’s reading of the clause was grammatically correct, compatible with the balance of the authorization and the only sensible interpretation that the restrictions imposed could reasonably support.” Even if the trial judge’s interpretation made it impossible to intercept text messages, the respondent argued that he was entitled to do so because “investigators could have sought specific authorization to permit these interceptions but chose not to do so.”
Watt J.A. ultimately accepted the Crown’s argument and ordered a new trial. In setting out a holistic interpretation of the authorization, he cautioned that “[i]nterpretations that yield absurd results, impose requirements that effectively neuter permissible interceptional activity, or ignore related terms in the order should be avoided.” In particular, his analysis focused on paragraph 5c of the authorization, which set out the devices that could be intercepted:
5. The communications of the persons in paragraph 3 may also be intercepted when made over:…c. any other device used to make a telecommunication, including mobile telephones, pages, or devices, believed on reasonable grounds to be used by the person in paragraph 3a and while being used by one of the persons named in 3a or 3b.
As well as paragraphs 6c and 6e:
c. Interception at the Business Places and Other Places in paragraph 4 shall be live monitored and, where practicable, be accompanied by live visual surveillance and be discontinued once it has been determined that the person in paragraph 3a (Slavko Ilic) is not a party to it. However, interception may be resumed at reasonable intervals to determine whether Slavko Ilic has become a party to the communication. If so, then the interception may continue…e. The interception of non-oral telecommunications, including pagers, faxes, electronic mail, modem, and internet communications, is not subject to the live visual surveillance, or live monitoring.
Watt J.A. determined that the reference to “a telecommunication” in paragraph 5c “does not distinguish between oral communications, such as telephone calls, and non-oral telecommunications, such as text messages.” The trial judge interpreted this paragraph as requiring certainty that Ilic was using the cellphone “to send a text message before that message could be intercepted.” However, Watt J.A. concluded that this interpretation was wrong for several reasons.
First, as a practical matter, it would be impossible to live monitor text messages because there is no human voice to identify the person. Because paragraph 6e permits the interception of “non-oral telecommunications” without live monitoring, Watt J.A. concluded that it would be impractical to assume that live surveillance was required for text messages.
Second, Watt J.A. emphasized that the authorization’s paragraphs must be interpreted in relation to the authorization as a whole. The fact that the authorizing judge knew that Ilic might use a mobile telephone made it reasonable to infer that the judge also knew he could use that telephone to send text messages. The interception of devices listed in paragraph 5c was subject to the condition that they were used by one of the named persons. However, Watt J.A. concluded that this paragraph must be interpreted in relation to paragraph 6e, which clearly states that the interception of non-oral telecommunications did not require live surveillance.
Finally, Watt J.A. rejected the trial judge’s interpretation because it required evidence that “exceeds the constitutional norm…and imposes different standards for interceptions involving the same device depending on the medium chosen for conveyance of the message.” In conclusion, Watt J.A. held that paragraph 5c authorized the interception of text messages “if investigators reasonably believed that Ilic was using the cell phone as a means of communication and that, at the time of the interception, either Ilic or another person described in paragraph 3b of the authorization, was using the cell phone.” Adopting this interpretation, the interceptions of the text messages were found to be reasonable and thus did not offend the respondent’s rights under s. 8.
The Impact of Technology on the Right to Privacy
The juxtaposition between the trial judge’s and Watt J.A.’s interpretations in this case illustrates the competing considerations that arise under a s. 8 analysis. In the Charter era, an individual’s privacy rights must take precedence in a search and seizure case. At the same time, the courts must also be sensitive to the duty of the police to properly investigate crime in the interest of public safety.
The trial judge was reluctant to adopt an interpretation that allowed for the interception of text messages without any express authorization. This narrow interpretation of paragraph 5c speaks to the importance of the individual’s privacy rights and, in my view, is more in line with the spirit of s. 8. Recall that, pursuant to Collins, a search must be authorized by law in order to be considered reasonable. Thus for the trial judge, it was important that each element of the interception be clearly authorized by law, not just the interception as a whole.
Critics of this approach might argue that the authorization’s failure to clearly spell out the terms for intercepting text messages is merely a technical error. In theory, however, even the most minute of errors can still lead to a rights breach. Section 186(4)(b) of the Criminal Code aims to prevent an unreasonable search by requiring that the authorization “state the type of private communication that may be intercepted.” According to the trial judge, this condition was not fulfilled in this case. While the interception of a mobile phone might imply the interception of text messages, the trial judge was unwilling to make such an inference because the investigators had the opportunity to seek specific authorization for the text messages, but failed to do so. This approach highlights the need for the police and the courts to keep the privacy interests of individuals front and centre in any criminal investigation.
On the other hand, Watt J.A.’s broader and more liberal interpretation ensures that authorized searches are not completely thwarted by changes in technology. This approach recognizes that the privacy interests of the individual must be balanced against the goals of a bona fide criminal investigation. Watt J.A.’s decision reminds us that no right is absolute, and as long as the Crown can demonstrate that a search was reasonable pursuant to the factors set out in Collins, there is no breach of s. 8. While wiretaps are arguably one of the most intrusive measures for seizing information, Watt J.A.’s analysis focuses on the larger purpose behind s. 186 and the fact that like s. 8, it requires a consideration of the competing interests at stake.
As in many areas of law, one of the challenges with the application of s. 8 is to ensure that it keeps pace with changes in technology. While new technology will continue to influence society’s understanding of privacy, it is imperative that these changes do not erode the substance of what s. 8 is meant to protect. Requiring technical certainty from a wiretap authorization ensures that the police continue to take the interception of private communication seriously. This decision may be a step backward in s. 8 jurisprudence, but only future challenges will determine its true impact on the rights of citizens to remain free from an unreasonable invasion of their privacy.