Private
Communications
4
I. Introduction.............................................. 114
II. What Is a Private Communication? ........................... 115
III. What Is an Intercept? ...................................... 119
IV. Historical Stored Communications ........................... 122
V. One-Party Consent ........................................ 127
VI. Entrapment in Online Contexts .............................. 128
VII. Summary ................................................ 133
Appendix 4.1 Criminal Code, ss 183 to 186.1........................ 137
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Part I Search and Seizure
I. Introduction
One of the many blurred lines when it comes to applying old law to new technologies
is the distinction between a seizure of historical communications and an intercept.
The dierence is significant. An intercept, colloquially called a wiretap, used to look
very dierent from a seizure; clamps on wires allowed authorities to listen in on con-
versations over phone lines and secret recorders captured voices in conversation. In
1975, Part VI of the Criminal Code was added to completely govern the use and admis-
sibility of wiretaps.
When conversations, and communications in general, take place through text, the
application of the old regime becomes awkward. Now, wiretaps are largely wireless. A
growing number of Canadians spend more time typing than talking on the phone. Our
conversations occur over wireless connections, and our words—now voiceless—may
travel in packets around the world before being reconfigured in a recognizable form
for the intended recipient. But even the recipient can be unclear: some communica-
tions are sent to a group or posted in a forum with a shifting and unknowable member-
ship whose identities are obscured by anonymous usernames. The challenges for the
criminal law in adapting Part VI to modern communications are many. As expressed
by Moldaver J in R v TELUS Communications Co:1
The task of adapting laws that were a product of the 1970s to a world of smartphones
and social networks is a challenging and profoundly important one.2
To determine whether a particular investigative technique is a gathering of data, a
search or seizure, or an intercept under Part VI, courts must examine the definitions
in Part VI and the objectives of that statutory package. Part VI defines “ intercept” as
to “listen to, record or acquire a communication or acquire the substance, meaning or
purport thereof.”3 A private communication is defined as follows:
“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 pur-
pose of preventing intelligible reception by any person other than the person intended
by the originator to receive it.4
1 2013 SCC 16 [TELUS].
2 Ibid at para 53.
3 Criminal Code, RSC 1985, c C-46, s 183.
4 Ibid.
© [2022] Emond Montgomery Publications. All Rights Reserved.
Chapter 4 Private Communications
This chapter explores the definitions of private communication and intercept and
the impact of those definitions on the permissible state access to digital communi-
cations through third-party wiretaps, one-party consent intercepts, and other forms
of court order. Counsel addressing a case involving digital communications should
examine each threshold question and the animating principles to determine the proper
form of authorization and to guide their strategy for challenging or admitting evidence
of personal communications in criminal trials. The chapter also briefly touches on the
doctrine of entrapment as it applies in virtual contexts. Although entrapment is not a
doctrine unique to the context of private digital communications, it does frequently
arise in cases with online undercover police activity that is not subject to strict rules.
II. What Is a Private Communication?
Several problems arise in determining whether text communications are to be consid-
ered private communications for the purpose of Part VI. The Supreme Court of Canada
(SCC) tackled the dicult issue of assigning privacy protections to certain text-based
communications in R v Marakah.5 Marakah is discussed in detail in Chapter 1 on rea-
sonable expectation of privacy but merits review here, given that Part VI protections
against unlawful interception are only applicable to private communications.
The specific question in Marakah was whether the sender of text messages main-
tained a reasonable expectation of privacy in the communications when they were
obtained on the recipient’s lawfully seized device. The majority held that the sender
did maintain a reasonable expectation of privacy. The broader issue addressed by the
SCC was how to assess privacy interests in digital communications. McLachlin C J,
writing for the four-person majority, identified the subject matter of the search as
an electronic communication—not just the specific words in a message, but also the
identities of the participants, the information shared, and any inferences about asso-
ciations and activities that could be drawn from the components and content.6 The
objective reasonableness of an expectation of privacy in electronic communications is
to be considered on a totality of circumstances test that, for digital communications,
may include consideration of:
1. the physical or virtual place where the search occurred,
2. the nature of the subject matter and whether the informational content of
the communications reveal details of lifestyle or information of a biographic
nature,and
3. control over the subject matter.7
5 R v Marakah, 2017 SCC 59.
6 Ibid at para 20.
7 Ibid at para 24.
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