R v Telus 2013 SCC 16 was just released. It holds text messages cannot be seized by police without a wiretap authorization.
The Court holds that text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI.
Section 487.01 of the Code, the general warrant provision, was enacted in 1993 as part of a series of amendments to the Code in Bill C‑109, S.C. 1993, c. 40. It authorizes a judge to issue a general warrant permitting a peace officer to "use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure". Notably, s. 487.01(1)(c) stipulates that the general warrant power is residual and resort to it is precluded where judicial approval for the proposed technique, procedure or device or the "doing of the thing" is available under the Code or another federal statute.
Section 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively to prevent the circumvention of the more specific or rigorous pre‑authorization requirements for warrants, such as those found in Part VI. To decide whether s. 487.01(1)(c) applies, namely, whether another provision would provide for the authorization sought in this case, requires interpreting the word "intercept" in Part VI. "Intercept" is used throughout Part VI with reference to the intercept of private communications. This means that in interpreting "intercept a private communication", we must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards. The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI. It should also be informed by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technological developments.