



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. July, 2020 ONCA 492

DATE: 20200805

DOCKET: C66384

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guyvin July

Appellant

Gerald Chan and Spencer Bass, for the appellant

Andrew Hotke, for the respondent

Heard: June 3, 2020 by video conference

On appeal from the conviction entered by
    Justice Jane E. Kelly of the Superior Court of Justice on October 8, 2015.

Pepall J.A.:


INTRODUCTION

[1]

The principal issue on this appeal is whether the seizure of historical
    text messages based on a production order granted pursuant to s. 487.012
(
now s. 487.014)
[1]
of the
Criminal Code
, R.S.C. 1985, c. C-46,

and
    served on a third party service provider, is constitutional.

[2]

The appellant accepts that, as a matter of statutory construction,
    historical text messages may be the subject of a production order
under s. 487.012
and that, in this case, the police met
    all of the statutory prerequisites under that provision. However, the appellant
    asserts that his right to be free from unreasonable search and seizure under s.
    8 of the
Canadian Charter of Rights and Freedoms
was violated because the police failed to establish investigative necessity
    when they obtained a production order for the search and seizure of the
    appellants historical text messages. He argues that investigative necessity is
    constitutionally required for future, non-existent communications, commonly
    referred to as wiretaps or intercepts, and should therefore be equally required
    for an order to produce historical text messages. In addition, he argues 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.

[3]

The Crown disputes any need to establish investigative necessity for the
    purposes of a production order. It argues that investigative necessity is not a
    constitutional requirement for intercepts, and that establishing such a
    requirement would be contrary to settled jurisprudence and would impose an
    unjustified and unreasonable restriction on the ability of law enforcement to
    seek such records through production orders. The Crown also submits that the
    law governing the seizure of historical messages is not arbitrary, and in any
    event, the issue of arbitrariness did not arise on the facts of this case.

[4]

For the reasons that follow, I would dismiss the appeal.

BACKGROUND FACTS

[5]

The background facts are not disputed.

(a)

Production Order

[6]

In early 2011, Toronto police established a task force to investigate
    four murders that took place over a period of 75 days in the fall of 2010. Mark
    Moore was identified as the prime target of the investigation. Police analyzed
    the cell phone of one of the murder victims and discovered a large number of
    communications between the victim and a number associated with Moore, who was
    eventually charged in relation to the murders. An analysis of the victims cell
    phone revealed 19 communications between his phone and the number associated
    with Moore during the afternoon of November 24, 2010, the date the victim was killed.

[7]

The police then obtained a production order under s. 487.012 of the
Code
for records relating to the phone number
    associated with Moore. The order required Telus to produce all activity
    records, subscriber information, and text messages related to that number for
    the period August 14, 2010 to January 11, 2011 (the order in issue).

[8]

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 Moore discussed the potential sale of
    firearms and the previous sale of ammunition by the appellant to Moore.

(b)

Transactions

[9]

Based on these text messages, the police then obtained an authorization
    to intercept communications associated with various numbers pursuant to s. 186
    of the
Code
. They identified the appellant as
    a target and intercepted messages sent and received on his Rogers phone. These
    messages revealed that Deshawn Hibbert contacted the appellant looking to
    purchase a gun. The appellant responded that he had nothing at the moment but
    would contact Hibbert when he got anything. In a conversation on August 17,
    2011, the appellant offered to sell Hibbert a revolver for $1,900 along with
    ammunition.

[10]

The
    sale of the gun took place in the early morning hours of August 18, 2011. That
    afternoon, the police arrested Hibbert who was in possession of the gun sold to
    him by the appellant and which was loaded with a single round of ammunition.

(c)

Arrest and Charges

[11]

Acting
    on information derived from the intercepted communications, the police
    conducted surveillance and ultimately arrested the appellant on October 13,
    2011. On November 6, 2012, he was indicted on four counts of firearms
    trafficking offences.

[12]

The
    appellant declined to discuss these charges with police but did discuss his involvement
    with Moore. He confirmed text messages showing that he had sold three boxes of
    ammunition to Moore in March 2011 and had gun sales with him that had not been
    consummated.

[13]

The
    appellant testified at Moores preliminary hearing and trial. He stated that in
    2010 and 2011, he would supplement his income by selling ammunition and had
    brokered the sale of handguns on a number of occasions. He explained the
    unconsummated firearms transactions with Moore and testified that he had sold
    Moore ammunition several times.

(d)

Section 8
Charter
Application

[14]

The
    appellant, Moore (who had been charged with four counts of first degree murder),
    and Moores girlfriend, Tassandra Whyte (charged in a separate indictment), brought
    applications to exclude the text messages obtained from Telus pursuant to the judicially
    authorized production order on the basis that they were obtained in an
    unreasonable search and seizure.

[15]

The
    application judge, Dambrot J., heard the applications on November 3, 2014: 2014
    ONSC 6621. He observed that, at the time the application was heard, no cellular
    telephone service provider copied or stored text messages sent or received by
    its customers, except when ordered to do so by a court. Telus practice in this
    respect changed in April 2013. From August 14, 2010 to March 22, 2011, it retained
    the content of text messages so that it could investigate and resolve customer
    and technical issues.

[16]

The
    application judge noted that the applicants did not take issue with the
    sufficiency of the grounds for the issuance of the production order; their
    argument was that the vehicle of a production order was unavailable for the
    seizure of the content of private communications.

[17]

The
    application judge dismissed the applicants s. 8 application.

[18]

At
    paras. 10-52, he addressed and rejected their first two arguments that s. 487.012
    did not authorize the issuance of an order requiring production of private
    communications and that a production order under s. 487.012 for historical text
    messages was precluded by other sections of the
Code
.
    The appellant does not appeal the decision in this regard.

[19]

At
    para. 53, the application judge turned to the third issue: if s. 487.012 of the
Code
did authorize orders for the production
    of historical text messages, was it inconsistent with s. 8 of the
Charter
?

[20]

The
    application judge described how a production order under s. 487.012 could only
    issue upon satisfying a judge or justice, on an information on oath and in
    writing, that: (1) an offence had been committed; (2) the document or data would
    afford evidence of the commission of the offence; (3) the person who was the
    subject of the order was not under investigation for the offence; and (4) that
    person had possession or control of the document or data. He noted that these
    statutory conditions met the traditional minimums for a reasonable search and
    seizure under s. 8 of the
Charter
as described
    by Dickson J. (as he then was) in
Hunter et al. v. Southam
    Inc.
, [1984] 2 S.C.R. 145, at p. 168: reasonable and probable
    grounds, established upon oath, to believe that an offence has been committed
    and that there is evidence to be found at the place of the search, constitutes
    the minimum standard, consistent with s. 8 of the
Charter
,
    for authorizing search and seizure.

[21]

The
    application judge addressed the applicants submission that the absence of the
    requirement of investigative necessity in s. 487.012 rendered that section
    unconstitutional insofar as it authorized the seizure of private
    communications. He concluded that this argument could not succeed. At para. 59,
    he reasoned:

In
R. v. Lucas
, 2014 ONCA 561, 313
    C.C.C. (3d) 159, the Court considered an argument that s. 186(1.1) of the
Criminal
    Code
, which permits an authorization to intercept private communications
    without the need to establish investigative necessity in relation to certain
    criminal organization offences, is inconsistent with s. 8 of the
Charter
by reason of this omission. The argument failed. In reaching this conclusion,
    Rosenberg J.A. performed a careful review of all of the cases in which an
    argument was advanced that investigative necessity was a constitutional
    prerequisite to a particular search power. I see no need to rehearse it here.
    It is sufficient to say that the Court concluded in
Lucas
, at para.
    95, that s. 186(1)(a) embodies the constitutional requirement for a wiretap
    authorization, specifically, reasonable and probable grounds to believe that a
    specified crime has been or is being committed, and that the interception of
    the private communications proposed will afford evidence of the crime. If
    investigative necessity is not a constitutional prerequisite to a wiretap
    authorization, perforce it is not a prerequisite to a production order for
    historic text messages.

[22]

He
    dismissed all of the applicants arguments. He concluded that there was no
    violation of s. 8 of the
Charter
, the text
    messages were validly obtained, and s. 487.012 of the
Code
was not inconsistent with the
Charter
. Despite
    his decision, he invited counsel to address the s. 24(2) issue of exclusion of
    evidence at a future date, but this never materialized.

(e)

Appellants Guilty
    Plea

[23]

The
    appellants defence at trial relied exclusively on the application to exclude
    the text messages from evidence. His trial proceeded before Kelly J. Before her,
    he pled guilty to one count of trafficking a firearm. He received a three-year
    sentence, which he has now served.

FRESH EVIDENCE

[24]

On
    this appeal, the appellant seeks to set aside his guilty plea and seeks to file
    fresh evidence consisting of affidavits from himself and from his trial
    counsel. In his affidavit, he states that while he pleaded guilty after losing
    his
Charter
application, he always intended to
    appeal his conviction on the basis that the application judge erred in
    dismissing his pretrial application. He also states that he was not advised
    that by pleading guilty, he would be waiving his right to appeal that decision.

[25]

Trial
    counsels affidavit sets out the circumstances of the appellants guilty plea.
    Trial counsel explains that he did not suggest to the appellant the alternative
    of simply not contesting the facts nor did he advise the appellant that a
    guilty plea may foreclose his right to appeal the
Charter
application. He explains that in February 2016, he wrote to Legal Aid seeking
    funding for the appellants appeal of the application judges s. 8
Charter
decision but did not identify the appellants
    guilty plea as an obstacle to the appeal. Trial counsel believed that the
    appellant intended to seek a review of the application judges dismissal of the
Charter
application.

[26]

In
    support of his fresh evidence application, the appellant also filed the consent
    of the Crown to the filing of the fresh evidence, consisting of the two
    affidavits.

[27]

In
    essence, the appellant argues that his guilty plea was uninformed because he
    was unaware that by pleading guilty he would be precluded from appealing the s.
    8
Charter
ruling as he intended.

[28]

The
    Crown consents to the admission of the fresh evidence.

[29]

Pursuant
    to the principles in
R. v. Fegan
(1993), 13
    O.R. (3d) 88 (C.A.), this court is permitted to review the correctness of the
    application judges ruling to determine whether the uninformed nature of the
    appellants guilty plea warrants intervention. The Crown does not object to
    such a review.

[30]

I would
    grant leave to admit the fresh evidence filed by the appellant and would consider
    the appellants challenge to the application judges ruling to determine
    whether it is meritorious.

ISSUES ON APPEAL

[31]

Section 8 of the
Charter
states: Everyone has the right to be secure against unreasonable
    search or seizure. As a majority of the Supreme Court noted in
R. v. Jones
,
2017 SCC 60, [2017] 2
    S.C.R. 696,
at para. 11:

[Section 8s] basic interpretive structure is
    well known and consists of two stages. First, the appellant must show that a
    state act constituted a search or seizure because it invaded his or her
    reasonable expectation of privacy in the subject matter of the search (
R. v. Cole
,

2012
SCC
53, [2012] 3 S.C.R. 34,

at para. 34;
R. v. Tessling
, 2004
SCC
67, [2004] 3 S.C.R. 432, at para. 18). Second, the claimant must show that
    the search or seizure was itself unreasonable. [Footnote omitted.] As a general
    rule, a
Charter
claimant
    must prove both the existence of a reasonable expectation of privacy in the
    relevant subject matter and the unreasonableness of the search or seizure of
    that subject matter in order to make out a breach of s. 8 (see
R. v. Collins
, [1987] 1 S.C.R. 265).

[32]

In
    the case under appeal, there is no real issue that the appellant had a
    reasonable expectation of privacy in historical text messages stored by Telus. The
    Crown does not take issue with the appellants standing to challenge the
    validity of the production order and the authorized seizures. Applying
Jones
, at paras. 52-55, I would conclude that the
    appellant has standing.

[33]

The
    principal question is whether the search and seizure was reasonable under the
    second branch of the s. 8 test. A search will be reasonable if it is
    authorized by law, if the law itself is reasonable and if the manner in which
    the search was carried out is reasonable:
Collins
,
    at p. 278;
Jones
, at para. 57. As mentioned, the
    appellant accepts that historical text messages may be the subject of a
    production order under s. 487.012 of the
Code
and that the police met all of the statutory prerequisites under that provision
    in this case (the first and third requirements). The issue is whether the law
    itself is reasonable.

(a)

Investigative
Necessity

[34]

The
    first ground of appeal advanced by the appellant is that s. 487.012 was not
    reasonable because it did not require the police to establish investigative
    necessity when they obtained a production order to compel Telus to produce records
    of historical text messages sent and received by Moore. The appellant submits
    that investigative necessity is a constitutional requirement for s. 186 wiretaps
    and should also be a requirement for the seizure of historical text messages. The
    appellant argues that the seizure of such messages without the need to
    establish investigative necessity is therefore unreasonable and in violation of
    s. 8.

[35]

The
Code
contains several provisions that enable the
    police to seek authorization to access communications. For the purposes of this
    appeal, I will address
authorizations to intercept private
    communications under Part VI of the
Code
, commonly referred to as wiretaps. These permit police to receive
    messages as they are being sent or received. I will then discuss
s. 487.012
    production orders.

(b)

Wiretaps

[36]


Section 186 allows the police to obtain an authorization to
    intercept the private communications of third parties where none of the parties
    to the communication consent to the interception (third party intercept). To
    issue an authorization for a third party intercept, the authorizing judge must
    be satisfied (a) that it would be in the best interests of the administration
    of justice to do so, and (b) that other investigative procedures have been
    tried and have failed, other investigative procedures are unlikely to succeed
    or the urgency of the matter is such that it would be impractical to carry out
    the investigation of the offence using only other investigative procedures. This
    latter requirement is known as the investigative necessity requirement. Section
    186(1.1) identifies certain specific instances where investigative necessity
    need not be established, such as when the authorization is required to
    investigate criminal organization or terrorism offences.

[37]

Section
    184.2 of the
Code
, entitled Interception with
    consent, addresses authorization to intercept private communications where one
    of the participants has consented to the interception. There is no
    investigative necessity requirement for such an authorization.

[38]

These
    types of interceptions of
prospective
communications, including text
    messages, are commonly referred to as wiretaps.

(c)

Production Order

[39]

The police may obtain the contents of stored historical text messages
    by means of a production order under s. 487.014 (previously s. 487.012).
Justice
    Doherty succinctly described the parameters of a production order in
R. v. Vice

Media Canada Inc.
, 2017 ONCA 231, 137 O.R. (3d) 263,
    at para. 28, affd 2018 SCC 53, [2018] 3 S.C.R. 372:

A production order under s. 487.014 of the
Criminal
    Code

is a means by which the police can obtain documents, including
    electronic documents, from individuals who are not under investigation. The
    section empowers the justice or judge to make a production order if satisfied,
    by the information placed before her, that there are reasonable grounds to
    believe that: (i) an offence has been or will be committed; (ii) the document
    or data is in the persons possession or control; and (iii) it will afford
    evidence of the commission of the named offence. If those three conditions
    exist, the justice or judge can exercise her discretion in favour of granting
    the production order. She may, however, decline to make the order even if those
    conditions exist. In deciding whether to exercise her discretion in favour of
    making the production order, she will have regard to the impact of that order
    on the constitutionally protected rights of the target of the order and the public.
    The more significant the negative impact, the more cogent must be the grounds
    for seeking the order: see
Canadian Broadcasting Corp. v. Lessard
,
    [1991] 3 S.C.R. 421, at p. 444.


[40]

Section
    487.012 was relied upon by the police in the case under appeal. At the material
    time, the three conditions above appeared in s. 487.012 with slight
    modifications.

[41]

For
    ease of reference, I have included the aforementioned sections of the
Code
in an Appendix attached to these reasons.

(d)

Appellants Wiretap Submission

[42]

The
    appellants first argument falters on its initial premise. Contrary to his
    assertion, the prevailing jurisprudence establishes that investigative
    necessity is not a constitutional requirement for wiretap authorizations. This
    is evident from a review of
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421, this courts decisions in
R. v.
    Largie
, 2010 ONCA 548, 101 O.R. (3d) 561, leave to appeal refd,
    [2011] S.C.C.A. No. 119 and
R. v. Lucas
, 2014
    ONCA 561, 121 O.R. (3d) 303, leave to appeal refd, [2014] S.C.C.A. No. 460,
    and the Court of Appeal of New Brunswicks detailed review of the law in
R. v. Doiron
, 2007 NBCA 41, 315 N.B.R. (2d) 205, leave
    to appeal refd, [2007] S.C.C.A. No. 413.

[43]

The
    application judge indicated in his reasons that he was not going to rehearse
    the case law on the issue. For ease of reference, I will briefly do so. Nonetheless,
    I reach the same conclusion.

[44]

In
Garofoli
, the Supreme
    Court considered the wiretap provisions of the
Code
and
identified their
    constitutional requirements without including investigative necessity. At pp.
    1443-1444, Sopinka J., writing for the majority, identified the minimum
    constitutional requirements demanded by s. 8 as described in
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at p. 168: reasonable
    and probable grounds, established upon oath, to believe that an offence has
    been committed and that there is evidence to be found at the place of the
    search. He noted that
in addition
to the minimum constitutional requirements, the investigative necessity
    requirement had to be satisfied under what is now s. 186(1)(b). He then went on
    to say that the language of what is now s. 186(1)(a) of the
Code
was identical to the constitutional requirements
    described in
Hunter
. Put differently, the best
    interests of the administration of justice requirement in what is now s.
    186(1)(a) imports the
Hunter
minimum constitutional requirements.

[45]

These
    statements suggest that investigative necessity is not a constitutional
    requirement for wiretaps, a view espoused in
Doiron
.
    See also
R. v. N.Y.
, [2008] O.J. No. 1432
    (S.C.), at para. 16.

[46]

In
    contrast, the appellant argues that the Supreme Court changed the law in
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992 and
R. v. S.A.B.
, 2003 SCC 60, [2003] 2 S.C.R. 678. In the
    former, LeBel J. stated at para. 22:

An appropriate balance must be found between the need to
    safeguard privacy interests and the realities and difficulties of law
    enforcement. The investigative necessity requirement found in s. 186(1)(b) has
    proved to be a critical but delicate component of the legal framework set up to
    regulate wiretapping in order to strike this appropriate but often elusive
    balance between the interests of the State and those of its citizens.

[47]

He
    went on to write at para. 26, that the text of s. 186(1) represented a type of
    constitutional compromise and in particular, the investigative necessity
    requirement embodied in s. 186(1) [was] one of the safeguards that made it
    possible for [the Supreme Court] to uphold these parts of the
Criminal Code
on constitutional grounds.

[48]

S.A.B.
did not involve wiretaps but the DNA warrant
    provisions of the
Code
. Justice Arbour, writing
    for the court, rejected the appellants argument that investigative necessity
    should be a constitutional requirement for DNA warrants and upheld the
    constitutionality of the DNA warrant provisions. In describing the appellants
    argument, Arbour J. wrote, at para. 53: This approach is analogous to the
    constitutional requirement applicable to wiretap authorizations (see
R. v. Araujo
, [2000] 2 S.C.R. 992, 2000 SCC 65, at para.
    37). She proceeded to distinguish DNA warrants from wiretaps: see
S.A.B.
, at para. 54.

[49]

The
    appellant argues that these two decisions establish that investigative
    necessity is a constitutional requirement for wiretaps.
[2]
I do not agree.

[50]

Both
Araujo

and
S.A.B.
have already been addressed by this court in
Largie
and
Lucas
. The
    latter two decisions involved
the constitutionality of
Code

provisions that provided for judicial authorization to intercept private
    communications. The central issue in both appeals was whether s. 8 of the
Charter
required that the police demonstrate investigative necessity before being
    granted an authorization to intercept private communications. This court held in
    both
Largie
and
Lucas
that investigative necessity was not a
    constitutional requirement.

[51]

In
Largie
, Watt J.A. considered the constitutionality of s.
    184.2, the
Code
provision that governs one
    party consent wiretaps. The provision was attacked on the basis that it
    violated s. 8 of the
Charter
due to the
    absence of any investigative necessity requirement. He rejected the argument
    that
Araujo
had established investigative
    necessity as a minimum constitutional requirement for wiretaps stating, at
    para. 46:

Nowhere does the [Supreme] Court characterize investigative
    necessity as a constitutional requirement, or as anything other than a
    statutory pre-condition to the exercise of the discretion to grant a
    conventional authorization permitting state-conducted third party surveillance.

[52]

He
    went on to reason that: no appellate court had held either expressly or by
    necessary implication that investigative necessity was a constitutional
    requirement (at para. 51); s. 184.2 is permissive, not mandatory (at para. 55);
    a judge addressing an application must consider whether the search proposed is
    reasonable in light of the myriad of factors at work in the specific case (at
    para. 55); other appellate courts had upheld the validity of the
Code
s
electronic surveillance provisions (at para. 57); and importing such a
    requirement would unduly restrict the availability of s. 184.2 (at para. 54). He
    concluded by rejecting the assertion that investigative necessity was a
    constitutional requirement for one party consent wiretaps.

[53]

In
Lucas
, this court held that
    the conclusion on investigative necessity in
Largie
applied to wiretaps in general (at para. 95) and rejected the assertion that s.
    186(1.1) was unconstitutional due to the absence of any investigative necessity
    requirement. Section
186(1.1) involves a wiretap authorization
    relating to enumerated criminal organization and terrorism offences.
In
Lucas
, t
he appellants challenged the
    constitutionality of this section, arguing that investigative necessity is a
    minimum constitutional requirement for such a wiretap authorization. The trial
    judge (Nordheimer J., as he then was) had rejected that argument.

[54]

This court upheld the trial judges conclusion.
    The court reviewed the same cases as Watt J.A. had in
Largie
and took
    the same view of the Supreme Courts jurisprudence. Neither
Araujo
nor
S.A.B.

provided authority for the proposition that
    investigative necessity was a constitutional requirement:
Lucas
, at para.
    88.

[55]

The appellants in
Lucas
attempted to
    distinguish
Largie
on the basis that it involved participant
    intercepts, which are more targeted and therefore have a more limited impact on
    privacy. They argued that there was a different constitutional standard for
    third party intercepts given the greater potential intrusion on individual
    privacy. This court declined to read
Largie
so narrowly, holding that
    Watt J.A.s reasoning did not turn on the differences between participant and
    third party intercepts:
Lucas
, at para. 95. Rather, even though Watt
    J.A. noted the differences between participant intercepts and third party
    intercepts (see
Largie
, at para. 56), he had affirmed that the minimum
    constitutional requirements for intercepts are as set out in s. 186(1)(a) of
    the
Code
.

[56]

The court in
Lucas
also relied on
Canadian
    Broadcasting Corp. v. New Brunswick (Attorney General)
, [1991] 3 S.C.R.
    459. In that case, the Supreme Court declined to find that investigative
    necessity was a constitutional requirement for the search of the premises of
    media organizations. Justice Cory held that the question of whether a search is
    reasonable depends on many factors and cannot be reduced to a list of
    conditional prerequisites. This court considered Cory J.s approach to be the
    correct one, writing, at para. 100:

The potential intrusion of a persons privacy
    in any search, whether it is by electronic surveillance, a search of personal
    information in a computer or the search of a place or person, will vary
    depending on the particular circumstances. We agree with the general assertion
    by this court at para. 49 of
Largie
that [the best interests of the
    administration of justice requirement in] s. 186(1)(a) of the
Criminal Code
coincides with the minimum constitutional requirement dictated by
Hunter
.

[57]

Nonetheless, even though investigative necessity
    is not a constitutional requirement, the court in
Lucas
held that it
    would be relevant for the authorizing judge to consider in deciding whether the
    authorization was in the best interests of the administration of justice.

[58]

In
    this case, the appellant urges this court to overturn or distinguish
Lucas
, arguing that it dealt with the constitutionality
    of wiretaps in the course of investigating organized crime offences, s.
    186(1.1). However, I do not read
Lucas
as
    having such a limited scope.

[59]

I
    also agree with the analysis in
Largie
and
Lucas

that neither
Araujo

nor
S.A.B.
changed the law by importing a constitutional investigative necessity
    requirement. Justice LeBels comment in
Araujo
,
    relied upon by the appellant, was
obiter
.
The issue in
Araujo
was the correct interpretation of s. 186(1); the court was tasked with considering
    the circumstances under which the police could satisfy the investigative
    necessity requirement:
Araujo
, at para. 1. While the court
    acknowledged that this inquiry would be informed by the competing values of
    enabling criminal investigations and protecting privacy rights, there was no
    issue in that case of the constitutionality of the wiretap provisions.

Moreover, in making his comment at para. 26, LeBel J. relied
    on
Garofoli
and
R. v.
    Duarte
, [1990] 1 S.C.R. 30, neither of which stand for the
    proposition that investigative necessity is a constitutional requirement for
    third party intercepts. I do not accept that LeBel J. intended to change the
    law. Had he wished to depart from
Garofoli
, he
    would have done so explicitly.

[60]

As
    for the appellants reliance on
S.A.B.
, it did
    not involve wiretaps and any commentary on investigative necessity was
obiter
,
    as noted by this court in
Lucas
. In addition, the
    passage cited by the appellant can easily be read as simply a recital of the
    appellants position before the Supreme Court rather than a distillation of the
    law on investigative necessity. Again, in my view, this case cannot be said to
    have changed the law on constitutional requirements.

[61]

In
    conclusion, based on the controlling and settled jurisprudence,
investigative necessity is not a constitutional requirement
    for wiretap authorizations.

[62]

In
    the case under appeal, Dambrot J. reasoned that [i]f investigative necessity
    is not a constitutional prerequisite to a wiretap authorization, perforce it is
    not a prerequisite to a production order for historic text messages: at para.
    59.

[63]

There
    is much force to this logic.

[64]

Wiretaps
    are more intrusive of privacy interests than production orders for historical
    text messages, a reality recognized by Parliament when it made investigative
    necessity a statutory requirement in s. 186(1)(b) but did not include
    investigative necessity in s. 487.012 or its successor, s. 487.014. Wiretaps
    are sweeping in their reach and target future communications based on an
    investigative theory that conversations relevant to an offence will take place.
    With a wiretap, the words sought for capture do not exist at the time the authorization
    is granted. They may never exist. The wiretap may fail to disclose anything of
    relevance to any offence under investigation. By their nature, the
    subject-matter soughtcommunications about an offenceis speculative:
R. v. Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, at
    para. 93.

[65]

In
    contrast, the scope of a production order for historical text messages may be
    focused, limited, and less speculative than a broad wiretap authorization. In
Jones
, Côté J. explicitly drew a distinction between
    wiretaps that give police access to real-time information and production orders
    for previously stored records, noting that the latter do not trigger the same
    concerns:
Jones
, at para. 74.

[66]

As
    the jurisprudence does not require that investigative necessity be a
    constitutional requirement for wiretaps, it follows that investigative
    necessity is not a constitutional requirement for production orders for
    historical text messages. Justice Dambrot considered this to be dispositive of
    the appellants argument. I agree but there are other reasons to reject the
    appellants contention, which I will now discuss.

(e)

Request for a
    Five-Judge Panel

[67]

Before
    this appeal was scheduled, the appellant had requested a five-judge panel to
    hear it. His submission was that this court should overturn its decisions in
Largie
and
Lucas
, thus
    necessitating a five-judge panel. On April 24, 2020, Associate Chief Justice
    Hoy rejected the appellants request.

[68]

The
    appellant renews this request before us. However, there are compelling reasons
    not to depart from settled law and I too would reject the appellants request
    for a five-judge panel.

[69]

First,
    a production order is not without safeguards. As discussed, the statutory
    conditions must be met. In addition, the language of 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 (the language
    of the current s. 487.014 is also permissive). The discretion must be exercised
    judicially and consideration must be given to the interest of the individual
    to be free of intrusions of the state, the interest of the state to intrude
    on the privacy of the individual for the purpose of law enforcement (
R. v. Baron
, [1993] 1 S.C.R. 416, at p. 435), and the
    impact of the order on the constitutionally protected rights of the target of
    the order and the public (
Vice Media
, at para.
    28). Moreover, it was open to the presiding justice to impose terms on the
    production order: s. 487.012(4) (now s. 487.19).

[70]

Second,
    as the Crown argues, 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. As mentioned, to obtain a production order,
    reasonable grounds to believe both that an offence has been or will be
    committed and that the record sought will afford evidence of the commission of
    the named offence are required. As the Crown observes, there may well be cases
    where the police receive information about specific communications that are
    central to the investigation of an offence. In cases involving these more
    targeted searches, it would be unreasonable to require the police to prove
    that:

-

other
    investigative procedures have been tried and failed;

-

other
    investigative procedures are unlikely to succeed; or

-

the
    urgency of the matter is such that it would be impractical to carry out the
    investigation of the offence using only other investigative procedures.

A fair balancing of the protection of privacy interests
    and the needs of law enforcement does not require the imposition of an
    investigative necessity pre-requisite.

[71]

Third,
    an investigative necessity requirement would be difficult to reconcile with
    other Supreme Court jurisprudence. Supreme Court cases have recognized that
    historical text communications can be seized from phones and other devices with
    ordinary search warrants or sometimes relying on the warrantless power to
    search incident to arrest, all in the absence of any investigative necessity
    requirement. See
R. v. Morelli
, 2010 SCC 8,
    [2010] 1 S.C.R. 253;
R. v. Vu
, 2013 SCC 60,
    [2013] 3 S.C.R. 657; and
R. v. Fearon
, 2014
    SCC 77, [2014] 3 S.C.R. 621.

[72]

The
    Crown also argued that in
Jones
, the Supreme
    Court had to grapple with the interpretation of intercept in Part VI of the
Code
. The appellant in that case argued that his s. 8
    rights were breached when the police obtained a production order to obtain
    records of his historical text messages from Telus when they should have sought
    a wiretap authorization. At para. 8 of its decision, the majority framed the
    question before it as: [D]id the Production Order provide lawful authority for
    seizing records of historical text messages located in the hands of a service
    provider? Justice Côté concluded by saying that the appellants s. 8 rights
    were not breached because records of historical text messages were lawfully
    seized by means of a production order under s. 487.012 of the
Code
(now
    s. 487.014):
Jones
, at para. 9. The Crown argues
    that if investigative necessity is a constitutional requirement, this would
    mean that in answering the question before it, the Supreme Court put its stamp
    of judicial approval on a tool for obtaining historical text messages that is
    not
Charter
compliant. However, as noted in
    this courts decision in
R. v. L.E.
, 2019 ONCA
    961, 382 C.C.C. (3d) 202, leave to appeal refd, [2020] S.C.C.A. No. 41, the
    constitutionality of a law is not always considered as part of the statutory
    interpretation analysis. In these circumstances, the Supreme Courts language
    in
Jones
on this point is not conclusive.

[73]

Fourth,
    although not determinative, Parliament has not seen the need to enact any
    limitation on the ability of law enforcement to use what is now s. 487.014 of
    the
Code
to seek historical text messages. Amendments
    were made to provisions of the
Code
dealing
    with production orders as recently as 2014, which was after the Supreme Courts
    decision in
R. v. TELUS Communications Co.
,
    2013 SCC 16, [2013] 2 S.C.R. 3, dealing with the seizure of prospective text
    messages, and no investigative necessity requirement was incorporated into the
    provisions dealing with production orders or indeed interceptions with one party
    consent.

[74]

Having
    said that, I recognize that privacy interests are seriously engaged by a
    production order for historical text messages. Text messages, while not
    universally utilized, are nonetheless a form of communication adopted by many. Senders
    and recipients have a reasonable expectation of privacy, accepting that the
    service provider may also have access to their communications. (Since April
    2013, the service provider in this case, Telus, had stopped retaining the
    content of text messages.) That said, for the aforementioned reasons, a
    reasonable balance between the rights of individuals and the state is
    maintained by the regime governing production orders for historical text
    messages. I would not interfere with Dambrot J.s s. 8
Charter
ruling.

[75]

In
    conclusion, I do not accept the appellants contention that investigative
    necessity is a constitutional requirement for wiretaps. The controlling
    authorities suggest otherwise. Moreover, it ought not to be a requirement for
    production orders for historical text messages. I would therefore dismiss this
    ground of appeal.

(f)

Arbitrariness

[76]

The
    appellants second ground of appeal has two parts. First, the appellant submits
    that the seizure of his text messages infringed s. 8 of the
Charter
because the distinction between historical and prospective
    text message searches is arbitrary. He argues that s. 487.012 is an
    unreasonable law, to the extent it authorizes the seizure of historical text
    messages, because in the absence of an investigative necessity requirement,
    there is an arbitrary distinction between the retrospective seizure of
    historical text messages and the prospective seizure of future text messages. He
    states that laws shall not create arbitrary distinctions under s. 7 of the
Charter
and due to s. 8s close connection to s. 7 of
    the
Charter
, a law that is arbitrary is also
    unreasonable under s. 8.

[77]

The
    difficulty with this argument is that it is answered by the majority decision
    in
Jones
. As mentioned, Côté J. expressly
    distinguished the two types of messages at paras. 73-74. Prospective
    authorization to intercept future messages engages a different mechanism, unique
    privacy concerns, speculation and surveillance that may continue over a
    prolonged period of time, and real-time access to information. Historical
    searches do not share all of these characteristics:
Jones
,
    at para. 74. Justice Côté outlined principled distinctions in differentiating the
    two types of messages, not arbitrary ones.

[78]

Second,
    the appellant submits that even if the distinction between prospective and
    retrospective seizures of text messages is not arbitrary in theory, it is in
    practice. This is because of the ease with which the requirements of Part VI
    governing prospective searches may be sidestepped based on timing. Put
    differently, the appellant argues that police are able to sidestep the
    requirements of Part VI of the
Code

by waiting until immediately after the text messages have
    been exchanged before seeking judicial authorization using a production order.
    In support of this submission, the appellant relies on Rowe J.s concurring
    opinion in
Jones
and Cromwell J.s dissent in
TELUS Communications
.

[79]

There
    are two responses to this argument.

[80]

First,
    in
Jones
, Côté J. clearly stated at para. 80:
    A production order should not be used to sidestep the more stringent Part VI
    authorization requirements. Sidestepping is impermissible. As the Crown
    submits, it does not follow from the fact that a search power may be used
    impermissibly or unlawfully that the lawful and permissible use of the power
    violates an individuals s. 8
Charter
rights.

[81]

Second,
    there is no evidence before the court about sidestepping, whether in this case
    or otherwise. As such, the issue does not arise on the facts and should not be
    adjudicated here.

[82]

I
    would therefore dismiss the appellants second ground of appeal based on
    arbitrariness.

DISPOSITION

[83]

For
    these reasons, I would admit the fresh evidence but dismiss the appeal.

Released: August 5, 2020 (S.E.P.)

S.E. Pepall
    J.A.

I agree.
    C.W. Hourigan J.A.

I agree.
    L.B. Roberts J.A.



APPENDIX

Criminal Code
, R.S.C. 1985, c. C-46

Interception
    with consent

184.2 (1) A person may
    intercept, by means of any electro-magnetic, acoustic, mechanical or other
    device, a private communication where either the originator of the private
    communication or the person intended by the originator to receive it has
    consented to the interception and an authorization has been obtained pursuant
    to subsection (3).

Application
    for authorization

(2) An application for an
    authorization under this section shall be made by a peace officer, or a public
    officer who has been appointed or designated to administer or enforce any
    federal or provincial law and whose duties include the enforcement of this or
    any other Act of Parliament,

ex parte

and in writing to a provincial court judge, a judge of a superior
    court of criminal jurisdiction or a judge as defined in section 552, and shall
    be accompanied by an affidavit, which may be sworn on the information and
    belief of that peace officer or public officer or of any other peace officer or
    public officer, deposing to the following matters:

(a)
that there are reasonable grounds to believe that an offence
    against this or any other Act of Parliament has been or will be committed;

(b)
the particulars of the offence;

(c)
the name of the person who has consented to the interception;

(d)
the period for which the authorization is requested; and

(e)
in the case of an application for an authorization where an
    authorization has previously been granted under this section or section 186,
    the particulars of the authorization.

Judge
    to be satisfied

(3)
An authorization may be given under this section if the judge
    to whom the application is made is satisfied that

(a)
there are reasonable grounds to believe that an offence against
    this or any other Act of Parliament has been or will be committed;

(b)
either the originator of the private communication or the
    person intended by the originator to receive it has consented to the
    interception; and

(c)
there are reasonable grounds to believe that information
    concerning the offence referred to in paragraph (a) will be obtained through
    the interception sought.

Content
    and limitation of authorization

(4)
An authorization given under this section shall

(a)
state the offence in respect of which private communications
    may be intercepted;

(b)
state the type of private communication that may be
    intercepted;

(c)
state the identity of the persons, if known, whose private
    communications are to be intercepted, generally describe the place at which
    private communications may be intercepted, if a general description of that
    place can be given, and generally describe the manner of interception that may
    be used;

(d)
contain the terms and conditions that the judge considers
    advisable in the public interest; and

(e)
be valid for the period, not exceeding sixty days, set out
    therein.

Related
    warrant or order

(5)
A judge who gives an authorization under this section may, at
    the same time, issue a warrant or make an order under any of sections 487, 487.01,
    487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that
    the requested warrant or order is related to the execution of the
    authorization.



Judge
    to be satisfied

186

(1)
An authorization under
    this section may be given if the judge to whom the application is made is
    satisfied

(a)
that it would be in the best interests of the administration
    of justice to do so; and

(b)
that other investigative procedures have been tried and have
    failed, other investigative procedures are unlikely to succeed or the urgency
    of the matter is such that it would be impractical to carry out the
    investigation of the offence using only other investigative procedures.

Exception
    for criminal organizations and terrorism offences

(1.1)
Notwithstanding paragraph (1)(b), that paragraph does not
    apply where the judge is satisfied that the application for an authorization is
    in relation to

(a)
an offence under section 467.11, 467.111, 467.12 or 467.13;

(b)
an offence committed for the benefit of, at the direction of
    or in association with a criminal organization; or

(c)
a terrorism offence.

Former s.
    487.012 (from 2004-09-15 to 2015-03-08):

Production
    order

487.012

(1)
A justice or judge
    may order a person, other than a person under investigation for an offence referred
    to in paragraph (3)(a),

(a) to produce documents, or
    copies of them certified by affidavit to be true copies, or to produce data; or

(b) to prepare a document
    based on documents or data already in existence and produce it.

Production
    to peace officer

(
2) The order shall require the documents or data to be produced
    within the time, at the place and in the form specified and given

(a) to a peace officer named
    in the order; or

(b) to a public officer
    named in the order, who has been appointed or designated to administer or
    enforce a federal or provincial law and whose duties include the enforcement of
    this or any other Act of Parliament.

Conditions
    for issuance of order

(3)
Before making an order, the justice or judge must be
    satisfied, on the basis of an
ex parte
application
    containing information on oath in writing, that there are reasonable grounds to
    believe that

(a)
an offence against this Act or any other Act of Parliament has
    been or is suspected to have been committed;

(b)
the documents or data will afford evidence respecting the
    commission of the offence; and

(c)
the person who is subject to the order has possession or
    control of the documents or data.

Terms
    and conditions

(4)
The order may contain any terms and conditions that the
    justice or judge considers advisable in the circumstances, including terms and
    conditions to protect a privileged communication between a lawyer and their
    client or, in the province of Quebec, between a lawyer or a notary and their
    client.

Power
    to revoke, renew or vary order

(5)
The justice or judge who made the order, or a judge of the
    same territorial division, may revoke, renew or vary the order on an
ex
    parte
application made by the peace officer or public officer named
    in the order.

Application

(6)
Sections 489.1 and 490 apply, with any modifications that the
    circumstances require, in respect of documents or data produced under this
    section.

Probative
    force of copies

(7)
Every copy of a document produced under this section, on proof
    by affidavit that it is a true copy, is admissible in evidence in proceedings
    under this or any other Act of Parliament and has the same probative force as
    the original document would have if it had been proved in the ordinary way.

Return
    of copies

(8)
Copies of documents produced under this section need not be
    returned.

Current s.
    487.014 (current to 2020-06-28 and last amended on 2019-12-18):

General
    production order

487.014

(1)
Subject to sections
    487.015 to 487.018, on

ex
    parte

application made by a
    peace officer or public officer, a justice or judge may order a person to
    produce a document that is a copy of a document that is in their possession or
    control when they receive the order, or to prepare and produce a document
    containing data that is in their possession or control at that time.

Conditions
    for making order

(2)
Before making the order, the justice or judge must be
    satisfied by information on oath in Form 5.004 that there are reasonable
    grounds to believe that

(a)
an offence has been or will be committed under this or any
    other Act of Parliament; and

(b)
the document or data is in the persons possession or control
    and will afford evidence respecting the commission of the offence.





[1]
At the material time, the relevant production order provision was
    s. 487.012. For ease of reference, I will refer predominantly to s. 487.012
    rather than s. 487.014.



[2]

There is some academic support for this proposition: see
    N.J. Whitling,  Wiretapping, Investigative Necessity, and the
Charter
 (2002)
    46:1 Crim. L.Q. 89, which predates both
Largie
and
Lucas
,
and Jared Craig,
    Terrorism, Criminal Organizations, and Investigative Necessity for Wire-Taps
    (2014) 61:2 Crim. L.W. 176, which post-dates
Largie

but pre-dates
Lucas
.


