



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jones, 2016 ONCA 543

DATE: 20160708

DOCKET: C60011

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Jones

Appellant

Patrick McCann, for the appellant

Randy Schwartz, for the respondent Her Majesty the Queen
    in Right of Ontario

Nick Devlin, for the respondent Her Majesty the Queen in
    Right of Canada

Susan Chapman and Naomi Greckol-Herlich, for the
    intervener Criminal Lawyers Association

Heard: April 4 and 5, 2016

On appeal from the pre-trial ruling, dated September
    27, 2012, and the convictions entered on September 25, 2013, by Justice Jacqueline
    V. Loignon of the Ontario Court of Justice.

MacPherson J.A.:

A.

Introduction

[1]

The appellant, Tristan Jones, and his co-accused, Jermaine Smith and
    Jafari Waldron, were convicted of several firearms trafficking and drug
    trafficking offences. The appellant was sentenced to five years imprisonment
    on the gun charges and seven months consecutive on the drug charges, less
    credit for 4.7 years of pre-sentence custody.

[2]

The convictions arose from a police investigation in Ottawa into the
    possession and trafficking of firearms. In the course of its investigation, the
    police obtained a production order pursuant to s. 487.012 of Part XV of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
for records and text messages from a cell phone number associated with Waldron.

[3]

The two principal issues on this appeal relate to the production order: (1)
    did the appellant have standing to challenge the production order; and (2) was
    a production order the proper mechanism for obtaining access to the cell phone
    records and text messages? The application judges answers to these two
    questions were No and Yes. On this appeal, the appellant challenges those
    answers.

[4]

This appeal was heard together with
R. v. Marakah
,
    2016 ONCA
542
and
R. v. Smith
, 2016 ONCA 544.
    The court has released three separate sets of reasons in these appeals.

B.

Facts

(1)

The
    parties and events

[5]

In 2009, the Ottawa Police Service initiated Project Lancaster, an
    investigation into the possession and trafficking of firearms in the Ottawa
    area. As part of the investigation, the police obtained a production order
    directed at Bell, Rogers and Telus (the Production Order). The Production
    Order sought, among other things, any incoming or outgoing text messages on a particular
    account associated with Waldron.

[6]

Telus was the only provider to retain historical text messaging
    information, which it provided to the police. Of particular interest was an
    exchange about the potential sale of a handgun between two phones  one associated
    with Waldron and one allegedly used by Jones. Both phones were listed under
    other names.

[7]

Relying in part on this text message exchange, the investigators
    obtained a
Criminal Code
Part VI wiretap authorization (the First
    Authorization) for a number of phones associated with the suspects. Communications
    intercepted under the First Authorization were used to support an additional
    Part VI wiretap authorization (the Second Authorization). Following this,
    search warrants were granted and executed. The searches resulted in Jones
    marijuana trafficking and proceeds of crime charges. The firearm charges were
    brought largely on the basis of the text messages obtained under the Production
    Order.

[8]

The appellant and Waldron challenged the Production Order. They
    contended that if the police wanted to obtain information about their text
    messages from service providers, the proper route was a Part VI authorization,
    not a production order.

[9]

The Crown raised the preliminary issue of standing, arguing that Jones
    had not adduced any evidence of his privacy interest in the records seized.
    Jones argued his privacy interest in the text messages seized was self-evident
    and his standing to challenge the seizure of the messages was virtually
    automatic.

(2)

The
    application judges ruling

[10]

On the s. 8
Charter
application, the Crown challenged the
    appellants standing. The application judge applied the analytic framework set
    out in
R. v. Edwards
, [1996] 1 S.C.R. 128, and concluded that Jones
    and Waldron did not have standing to challenge the Production Order under s. 8
    of the
Charter
. She said:

[31]

vi. The existence of a subjective expectation of privacy

There is no evidence whatsoever of
    any subjective expectation of privacy on the part of either Applicant.

vii. The objective reasonableness of the expectation

There is nothing to suggest from an
    objective standpoint that the Applicants structured their affairs to maintain
    privacy over the cell phone records. If anything, the use of a third party
    demonstrates a willingness to distance and avoid detection or association with
    the records.

Conclusion

In my view, the totality of the
    circumstances do not support that the Applicants Waldron and Jones had a
    reasonable expectation of privacy in relation to the cell phone records
    produced by Telus. Accordingly, I do not find that Waldron and Jones have
    standing with respect to a Section 8 argument in relation to the Telus
    production Order.

[11]

Turning to the challenge of the Production Order, the application judge
    held that a Part VI authorization was not required for two reasons. First, she
    found that she was bound by the trial decision in
R. v. Telus
    Communications Co.
(2011), 105 O.R. (3d) 411 (Sup. Ct.). In that decision,
    the court held that the daily production of text messages to police did not
    constitute an interception of private communications. Second, the application judge
    said, at para. 18, that there is no adequate evidentiary foundation for me to
    rely upon and base any findings.

[12]

The appellant appeals from these components of the application judges
    ruling. He also appeals two of his convictions  count 9 (offer to transfer a firearm)
    and count 42 (possession of the proceeds of crime)  on the basis that they
    were unreasonable verdicts.

C.

Issues

[13]

The issues in this appeal are:

(1)

Did the application judge err by concluding that the appellant did not
    have standing to challenge the Production Order?

(2)

Did the application judge err by upholding the use of a production order
    to obtain phone records from Telus?

(3)

Was the trial judges conviction on count 9 unreasonable?

(4)

Was the trial judges conviction on count 42 unreasonable?

D.

Analysis

(1)

Standing

[14]

The application judge held that the appellant did not have standing to
    challenge the lawfulness of the Production Order.

[15]

Unlike in the companion case
Marakah
, the appellant did not
    testify or lead evidence at his
Charter
application hearing dealing
    with his subjective expectation of privacy. His position was, as described by
    the application judge, that his privacy interest in the text messages seized
    pursuant to the production order is self-evident.

[16]

I do not accept this submission. The Telus account and phone in question
    were in the name of Kurt Gellis, not the appellant. The appellant did not use
    this phone, nor was he alleged to have used it. There was also nothing to
    suggest that Telus was contractually bound to the appellant to keep any of the
    text messages confidential.

[17]

Whether the appellant subjectively had an expectation of privacy is a
    finding of fact, which is owed deference absent a palpable and overriding
    error. In these circumstances, a subjective expectation of privacy is far
    removed from being self-evident. It was open to the application judge on the
    record to find that the appellant had no subjective expectation of privacy. I
    see no palpable and overriding error in her analysis warranting appellate
    intervention.

[18]

Further, for the reasons in the companion case
Marakah
, the application
    judge did not err by finding that the appellant had no reasonable expectation
    of privacy in relation to the cell phone records produced by Telus.

(2)

Production
    order v. Part VI authorization

[19]

My conclusion on standing is dispositive of the grounds of appeal
    relating to the appellants s. 8
Charter
rights. That being said, I
    would also agree with the application judges findings that a Part VI
    authorization is not needed to obtain historical text messages.

(a)

Parties positions

[20]

The appellant contends that previously received text messages fit
    squarely within the definition of intercept and private communications under
    Part VI of the
Criminal Code
, thus requiring a wiretap authorization.
    Though the Supreme Court of Canadas decision in
R. v. TELUS Communications
    Co
., 2013 SCC 16, [2013] 2 S.C.R. 3, only explicitly dealt with the
    interception of prospective text messages, the appellant submits that Abella
    J.s plurality comments
[1]
on the definition of intercept are all encompassing and cannot be restricted
    to undelivered text messages.

[21]

The respondents position is that the appellants interpretation of
    intercept should be rejected as it contradicts the core principles of
    statutory interpretation. Intercept connotes an interference, such as that between
    the origin and destination of a communication. Further, an interception occurs
    while the communication is in progress  it is necessarily prospective. Accordingly,
TELUS
does not assist, as it did not address the seizure of historical
    text messages.

(b)

Part VI of the
Criminal Code

[22]

I begin by noting that the core subject matter of Part VI of the
Criminal
    Code
concerns the interception of private communications. It makes it an
    offence to intercept private communications without statutory or judicial
    authorization. The purpose of Part VI is to protect private communications from
    unauthorized interference by the state:
TELUS
, at para. 35. The
    protection is structured in two ways: protection against the interception of
    private communications (see ss. 184-192) and protection against the use or
    disclosure of intercepted private communications (see s. 193).

[23]

The purpose of limiting police surveillance powers under Part VI was
    explained by La Forest J. in
R. v. Duarte
, [1990] 1 S.C.R. 30, at 43-44:

The rationale for regulating the power of the
    state to record communications that their originator expects will not be
    intercepted by anyone other than the person intended by the originator to
    receive it  has nothing to do with protecting individuals from the threat that
    their interlocutors will divulge communications that are meant to be private.
    No set of laws could immunize us from that risk. Rather, the regulation of
    electronic surveillance protects us from a risk of a different order, i.e., not
    the risk that someone will repeat our words but the much more insidious danger
    inherent in allowing the state, in its unfettered discretion, to record and
    transmit our words.

[24]

In my view, the statutory language and Supreme Court of Canada jurisprudence
    support the conclusion that Part VI applies exclusively to police surveillance
    and not to police searches and seizures generally. To determine whether a
    particular investigative technique constitutes surveillance, thus falling under
    Part VI, it is important to consider the statutory definitions of intercept
    and private communications enumerated in s. 183:

intercept includes listen to, record or acquire a
    communication or acquire the substance, meaning or purport thereof.



private communication means any oral communication, or any
    telecommunication, that is made by an originator who is in Canada or is
    intended by the originator to be received by a person who is in Canada and that
    is made under circumstances in which it is reasonable for the originator to
    expect that it will not be intercepted by any person other than the person
    intended by the originator to receive it, and includes any radio-based
    telephone communication that is treated electronically or otherwise for the
    purpose of preventing intelligible reception by any person other than the
    person intended by the originator to receive it.

[25]

The Crown concedes that text messages constitute private communications.
    I agree. Text messages, whether historical or prospective, clearly meet the
    definition of private communications. They are a telecommunication and it is
    reasonable for the originator to expect that they will not be intercepted. In
    this case, those text messages were also sent and received in Canada.

[26]

Accordingly, this ground of appeal turns on the interpretation of the
    word intercept, and in particular, whether the acquisition of historical text
    messages constitutes an interception. On this point,
TELUS
is not
    helpful. As carefully noted by Justice Abella, the facts before her dealt with
    obtaining prospective rather than historical text messages. As a result, she specifically
    limited the application of her reasons to whether the seizure of prospective
    text messages constitutes an interception:

[15] We have not been asked to determine whether a general
    warrant is available to authorize the production of historical text messages,
    or to consider the operation and validity of the production order provision
    with respect to private communications. Rather, the focus of this appeal is on
    whether the general warrant power in s. 487.01 of the
Code
can
    authorize the
prospective
production of future

text messages
    from a service providers computer. That means that we need not address whether
    the seizure of the text messages would constitute an interception if it were
    authorized after the messages were stored. [Emphasis in original.]

[27]

The meaning of intercept in the context of a Part VI authorization has
    been considered by this court on multiple occasions. Each time, this court has
    explained that intercept applies to prospective communications. I cite two
    recent cases as illustrations.

[28]

In
R. v. Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, the
    Court said:

[93] The interception of private communications is an
    investigative technique or tool to record words spoken by various individuals 
    The words sought for capture do not exist when the authorization is granted. They
    may never exist or disclose anything of relevance to any offence under
    investigation. By nature, the subject-matter sought  communications about an
    offence  is speculative.

[29]

In
R. v. Nero
, 2016 ONCA 160, [2016] O.J. No. 1027, Watt J.A.
    said:

[116]  [The nature of the subject matter of a wiretap
    authorization is] future communications, not yet in existence, perhaps not even
    in contemplation at the time the authorization is sought or granted. These communications
    may never take place.

[30]

In these decisions, this court placed great weight on the temporal
    aspect of private communications. To fall under Part VI, there needs to be a
    prospective component to the private communications, otherwise the
    communications are not being intercepted. This is because the word intercept suggests
    an interference between the place of origin and the destination of the private
    communication. There is no such interference when obtaining historical text
    messages stored on a phone or a service providers server.

[31]

In
TELUS
, Abella J. essentially found that acquiring
    prospective text messages constituted a surveillance of private communications
    and required a wiretap authorization under Part VI. The difference between the
    case at hand and
TELUS
mirrors the distinction between surveillance and
    searches. Surveillance necessarily deals with prospective communications. On
    the other hand, I would not describe the production of historical text messages
    as surveillance or an interception. It is, quite simply, a search and seizure
    of a historical record of text messages sent and received in the past.

[32]

Further, the determination of whether the text messages in this case
    fall under Part VI does not turn on the type of information seized. Rather, it
    comes down to the specific investigative technique used by the police, and
    whether that technique constitutes an interception of private communications.
    This point was well articulated by Boswell J. in
R. v. Carty
, 2014
    ONSC 212, [2014] O.J. No. 6081:

[62]  In my view, Part VI was intended to govern the use of
    the investigative technique of interception. It was not intended to create a
    special, enhanced privacy interest in personal communications, such that any
    time the police seek access to records in the nature of personal communications
    they require a Part VI authorization. There is nothing about personal
    communications that renders them inherently more intensely private than a great
    deal of other biographical or personal information that may be contained on
    computers or smartphones and which is readily available to the police through
    production orders or search warrants. Banking records, photographs and web
    browsing histories may all contain information of an intensely private nature,
    but there is no dispute that they may be validly obtained through the use of
    non-Part VI authorizations.

[33]

I note that there is jurisprudence from other Canadian courts that is
    similar to the Ontario case law (
Beauchamp
,
Nero
and
Carty
)
    on this point. The most important, in my view, is the recent decision of the
    British Columbia Court of Appeal in
R. v. Belcourt
, 2015 BCCA 126, 322
    C.C.C. (3d) 93. The issue in
Belcourt
was precisely the same as the
    issue in this appeal. For a unanimous court, Kirkpatrick J.A. said:

[45] I readily concede that the acquisition of a text message
    by the police in this interim transit period could constitute an interception
    within the plain meaning of the word. However, this is because the recipient
    has yet to receive the message, and may never receive the message. In stepping
    between a sender and recipient to acquire a message and its content before it
    is received, and when it may never be received, the police are intercepting
    the message in the most literal sense of the word.

[46] The distinctive feature of the police investigation
    discussed above is that they interject themselves in the communication process
    by using an investigative technique that comes between the sender and receiver
    of a message. As I discuss below, and as Moldaver J. observes in his reasons in
Telus
, this is exactly the type of technique that Part VI authorization
    was meant to encompass. This investigative technique, however, is different
    from the case where the police seek to obtain a stored electronic record of a
    text message after it has been sent and received.

[47] The detailed requirements found in Part VI exist to
    address the fact that the evidence sought to be acquired by the police has not
    yet come into existence at the time that the judicial authorization for its
    acquisition is being sought: see
R. v. Finlay
(1985), 23 C.C.C. (3d)
    48 (Ont. C.A.) at 63-64. Indeed, the constitutionality of Part VI derives from
    the safeguards that are imposed by the role of the judge granting the
    authorization, which exist because of the danger that the interception of
    private communications could easily transform into a fishing expedition:
Finlay
78: see also
R. v. Araujou
, [2000] 2 S.C.R. 992 at para. 29. Put
    simply, it is inherent in the nature of Part VI authorization that the
    investigative technique to be utilized by the police is prospective, which
    requires a distinct form of judicial authorization in comparison to other
    search warrant provisions. In my view, applying Part VI to evidence already in
    existence is a misapprehension of the form of authorization provided for in that
    section of the
Code
.

[48] It is a necessary consequence of the very nature of the
    scheme that is set out in Part VI that any retrospective investigation
    technique is outside its ambit. In contrast to the prospective operation of
    Part VI, search warrants, whether part of the
Code
or another Act of
    Parliament, may not be issued in anticipation of an event or situation in the
    future which (if it existed in the present) would justify issuing a search
    warrant: see e.g.,
R. v. Cameron
(1984), 16 C.C.C. (3d) 240 (B.C.C.A.)
    at 242. On this point, it is important to note that the law regarding search
    warrants applies to production orders: see e.g.,
Canadian Broadcasting
    Corp. v. Manitoba (Attorney General)
, (2009), 250 C.C.C. (3d) 61 (Man.
    C.A.).

[49] The requirement that the search warrant only pertain to
    the search and seizure of specified things already in existence is essential to
    the operation of the safeguards inherent in the authorization scheme common to
    s. 487, including s. 487.012 (i.e., that there are reasonable grounds to
    believe that the specified articles to be seized will afford evidence with
    respect to the commission of an offence): see e.g.,
CanadianOxy Chemicals
    Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743.

[50] As I have said, the acquisition of stored, historical
    communications is not, and cannot be, prospective. As a result, it is outside
    the ambit of Part VI of the
Code
to require that existing
    communications stored in electronic form be authorized under that section. In
    my view, requiring Part VI authorization for acquisitions of evidence already
    in existence is inconsistent with the law of search and seizure in Canada.

[51] A.J.B.s submission, taken to its logical extension, would
    require the police to obtain Part VI authorization for any acquisition of
    private communication in any circumstance, regardless of how far in the past it
    had been made. In my opinion, a fair reading of Justice Abellas reasons [in
Telus
]

does not support such an expansive proposition. As I indicated above, her
    analysis was carefully circumscribed to the question of the prospective
    acquisition of messages, which was, moreover, the principal issue before the
    Court.

[34]

I entirely agree with this analysis and conclusion.

[35]

I make one final comment on this issue. A requirement that the police
    must obtain a Part Vl wiretap authorization in order to acquire historical
    private communications from computers, cell phones and other electronic devices
    would be inconsistent with several leading decisions of the Supreme Court of
    Canada. It would also be a seriously retrogressive step in the administration
    of Canadian criminal justice. On these points, I agree with what the provincial
    Crown says in its factum:

65.     It would be difficult to overstate the profound
    negative consequences for criminal investigations if the appellants position
    were followed and a wiretap authorization came to be required for the
    acquisition of historical private communications from any computer or device. Much
    has been said about the proliferation of computers in modern society and the
    delicate balance the courts must strike between the digital privacy interests
    of the individual and the public interest in allowing police access to relevant
    computer data so they can properly conduct investigations. A rule that requires
    a wiretap authorization whenever the police access historical private
    communications would upset this balance by transforming virtually all searches
    of computers, smartphones and tablets into Part VI authorizations. It would
    also call into doubt the correctness of recent decisions of the Supreme Court
    of Canada in
R. v. Morelli
,
R. v. Vu
, and
R. v. Fearon
,
    which recognize that historical private communications may be seized from
    devices not with a wiretap authorization but with ordinary search warrants or
    through recourse to the warrantless power to search incident to arrest. It is
    difficult to comprehend how these decisions could somehow have overlooked the
    potential application of Part VI. Yet this is the effect of the appellants
    position.

[36]

For these reasons, it is my view that the application judge was correct
    in upholding the use of a production order to enable the police to obtain phone
    records from Telus. A Part VI authorization is not required for the search and
    seizure of historical text messages.

(3)

Unreasonable
    verdicts

[37]

In
    his Notice of Appeal and factum, the appellant challenged his convictions on counts
    9, 18 and 42 as being unreasonable. In oral submissions, he abandoned his
    appeal with respect to count 18.

(a)

Count 9  Offer to Transfer a
    Firearm

[38]

The appellants conviction on count 9 (offer to transfer a firearm) was
    based on evidence that on November 25, 2009 the appellant and the co-accused
    Waldron worked together to transfer a firearm to Shridev Café. Waldron
    confirmed Cafés interest in purchasing a firearm, negotiated the purchase
    price, and arranged to meet Café. The appellant spoke to Waldron in coded
    language about the price they would pay and their profit margin. On February
    10, 2010, a revolver was seized from Cafés residence. The revolver was a
    prohibited weapon in firing condition.

[39]

The evidence supporting count 9 consisted mainly of text messages
    between the appellant and Waldron and between Waldron and Café. There were no
    text messages or other communication between the appellant and Café directly.

[40]

The trial judge supported her conviction of the appellant and the
    co-accused in this fashion:

[99] Based on the communications between Café and Waldron, it
    is clear that the offer made was meant to be genuine given the arrangements
    made to meet. I am satisfied that all the elements of the offence have been
    made out with respect to an offer to traffic in firearms by Jaffari Waldron. With
    respect to Mr. Jones, his actions while not directly with Mr. Café demonstrate
    direct participation in the offence. Indeed, irrespective of their respective
    roles, Waldron and Jones worked together in order to ensure that a product was
    available to be offered to Mr. Café.

[41]

When reviewing whether a conviction was unreasonable, an appellate court
    must consider whether the verdict is one that a properly instructed jury,
    acting judicially, could have rendered. As explained by Watt J.A. in
R. v.
    Smith
, 2016 ONCA 25, [2016] O.J. No. 144:

[75] In cases tried without a jury, the unreasonableness
    analysis required under
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R.
    190, involves scrutiny of the logic of the judges findings of fact or
    inferences drawn from the evidence admitted at trial:
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate
    court can interfere where a trial judge draws an inference or makes a finding
    of fact that is:

i.

plainly contradicted by the evidence relied upon by the judge for that
    purpose; or

ii.

demonstrably incompatible with evidence that is not otherwise
    contradicted or rejected by the trial judge:
Sinclair
, at para. 16.

[42]

In my view, the high threshold for a finding of unreasonable verdict is
    not met with respect to count 9. The trial judge was entitled to accept the
    expert evidence relating to the meaning of the text messages and draw the
    conclusion that she did about the appellants role.

(b)

Count 42  Possession of the
    Proceeds of Crime

[43]

The appellants conviction on count 42 (possession of the proceeds of
    crime) was based on the evidence relating to the appellants involvement in
    drug trafficking. When the police executed a search warrant at the appellants
    residence, they located $2,595 CAD and $1,060 USD, $1,755 of which was on the
    appellants person.

[44]

The trial judges conclusion on this count was:

[223] Given the conclusion that Jones was trafficking in
    marihuana, given the drugs found in the residence along with the tools of the
    trade, and finally given the amount of cash seized from Mr. Jones specifically,
    it is a reasonable inference that the currency seized was the proceeds of his
    illegal activities.

[45]

I see nothing unreasonable about the inference drawn from this evidence
    by the trial judge.

E.

disposition

[46]

I would dismiss the appeal.

J.C.
    MacPherson J.A.

I
    agree.
J. MacFarland J.A.




H.S. LaForme J.A. (Concurring):

[47]

I agree with my colleague that the application judge did not err by
    upholding the use of a production order and that the convictions on counts 9
    and 42 were not unreasonable. Therefore, for the reasons given by my colleague
    in respect of those three issues, I agree that the appeal should be dismissed.

Released: July 8, 2016 (J.C.M.)

H.S. LaForme
    J.A.





[1]
Justice Abellas reasons were joined by LeBel and Fish JJ. Moldaver J. wrote
    concurring reasons that were joined by Karakatsanis J. Cromwell J. dissented,
    joined by McLachlin C.J.


