Supreme Court Rules Text Messages are Private Communications

by Bennett Jones LLP

The Supreme Court of Canada in R v. Telus has ruled that text messaging is essentially another form of conversation and should receive the same protection to which private communications are entitled under the Criminal Code. The Court held that text messages are private communications, even if they are stored on a service provider’s computer.

However, the Court was divided in its opinions on what type of warrant is needed for police to gain access to a text message, given the fact that unlike traditional voice communication, a text message may or may not be delivered to its intended recipient at the time it is created. Receipt of the text message depends on whether the phone is turned on, whether it is in range of a cell tower, and whether the user has accessed the message. Furthermore, unlike voice communications, text communications, by their nature, generate a record of the communication which may easily be copied and stored.

The reality of modern communication technologies is that electronic private communications, such as text messages, are often simultaneously in transit and in some form of computer storage by the service provider. As a result, the same private communication exists in more than one place and may therefore be acquired by the state from the transmission stream and from computer storage. In other words, the same private communication may be “intercepted” by police more than once from different sources.

Justices Abella, LeBel and Fish felt that a narrow or technical interpretation of “intercept” under the Criminal Code that requires the act of interception to occur simultaneously with the making of the communication itself, was not appropriate in addressing new, text-based electronic communications.

The Court stated that “[35] A narrow definition is also inconsistent with the broad language and purpose of Part VI. The statutory definition of“intercept” in s. 183 includes three distinct parts — “listen to”, “record” or“acquire”. In French, the definition includes “de prendre . . . connaissance”. Rather than limit the definition of “intercept” to its narrow, technical definition, the statutory definition broadens the concept of interception. There is no requirement in the Code definition of“intercept” that the interception of a private communication be simultaneous or contemporaneous with the making of the communication itself. If Parliament intended to include such a requirement, it would have included it in the definition of “intercept”. Instead, it chose to adopt a wider definition, consistent with Part VI’s purpose to offer broad protection for private communications from unauthorized interference by the state.”

Moldaver and Karakatsanis JJ did not think it necessary to ponder the definition of “intercept” as they found the authorities failed to establish one of the prerequisites needed to obtain a general warrant, and hence they joined Abella, LeBel and Fish JJ, in allowing the appeal.

Interestingly, Justices Cromwell and McLachlin in their dissent found a distinction under the Code between intercepting, i.e. listening to, recording or acquiring a communication or the substance, meaning or purpose thereof, and using or disclosing a private communication. Cromwell and McLachlin JJ held that when Telus provided the police with copies of text communications from its databases that it had previously intercepted and stored for its own lawful purposes, it was disclosing the communications and the police were not intercepting private communications. The dissenting Justices held that the general warrant that authorized a technique that was different from an interception was sufficient.

The dissent noted that stored private communications have long been accessible to police under ordinary search warrants and the ruling by Abella J would run counter to a line of cases in which Canadian courts have found that search warrants are sufficient to allow police to access documents and data stored on a computer.

It will be interesting to see how this decision will be applied in the future in the context of emails and Internet chats.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.