Ontario Court of Justice

Date: 2020-11-12 Location: Newmarket

Between:

Her Majesty the Queen

— AND —

Jabir Khan

Ruling on s. 8 Charter Application - Subscriber Information

Heard: 12 November, 2020 Delivered: 12 November, 2020

Counsel:

• Mr. Kevin Stewart, counsel for the Crown
• Mr. Steven Hinkson, counsel for the defendant/applicant

KENKEL J.:

Introduction

[1] Police obtained a Part VI Authorization to Intercept Communications in relation to a robbery investigation. Mr. Khan was not a suspect in relation to that investigation and was not one of the 11 targets or 12 other persons named in the order. A conversation with Mr. Khan and a named target was intercepted pursuant to that authorization. The conversation did not involve any reference to criminal activity. After that conversation, the police requested and received the subscriber information for Mr. Khan's phone number.

[2] The defence submits that the production and seizure of the subscriber information without court order is a violation of s. 8 of the Charter. The Crown submits that the production and seizure was authorized by the initial authorization including ancillary orders.

Did the Assistance Order Authorize the Seizure?

[3] Mr. Khan has a reasonable expectation of privacy in personal data related to his cellular phone including the subscriber data showing his identity, address etc. In this case the police obtained that information without a production order. There was no evidence called to show on what basis the information was requested or disclosed. The defence submits that the burden is on the Crown to show that the warrantless seizure of the applicant's personal subscriber information was lawful. The Crown submits that the request by police and the response by the telecommunications company must have been pursuant to the Part VI Authorization.

[4] In R v. Collins, [1987] SCJ No 15, the Supreme Court set out a three-part test to determine whether a search was reasonable under s. 8 of the Charter. To be reasonable, a search must be:

• authorized by law;
• the authorizing law must be reasonable;
• and the search must be carried out in a reasonable manner.

[5] A Part VI authorization with ancillary orders was issued by Justice Boswell of the Superior Court of Justice on March 1, 2019. It's agreed that on April 4, 2019 Mr. Khan's number contacted a named party and that conversation was lawfully intercepted pursuant to the authorization. That conversation was about food and did not involve any discussion related to a criminal offence. The Authorization was extended on April 26, 2019. The Information to Obtain the extension did not mention Mr. Khan or the fact that his subscriber information had been seized.

[6] After the April 4th conversation, the police obtained the subscriber information for Mr. Khan based on his discussion with a known target. They did not obtain a production order, nor could they have obtained such an order. Mr. Khan was not a suspect in the robbery investigation and nothing in the intercepted conversation gave them grounds for such an application.

[7] The Crown submits that the production was authorized by the omnibus Part VI order. The authorization includes an Assistance Order pursuant to s. 487.02. The Crown submits that paragraph 15(c) of the authorization directs assistance in relation to, "all mobile telephone numbers and all associated basic subscriber information". That subsection authorizes the demand for production of the accused's subscription information in this case.

[8] I agree with the defendant/applicant that the Crown's submission mischaracterizes the purpose of an assistance order under s. 487.02. The purpose of an assistance order is stated in that section – "the person's assistance may reasonably be required to give effect to the authorization or warrant". That section does not provide any basis for expansion of the investigation without grounds to other unnamed persons. It does not provide the police with a means to bypass the requirements of s. 487.014 and require production of information without reasonable grounds and without application to a justice or judge.

[9] The initial authorization listed 5 ancillary orders but there was no request for a production order. The Crown is correct that there was no production order in relation to the listed known targets either, but it's plain that the Authorization to Intercept under sections 185 and 186 is the central order and the ancillary orders including the assistance order under s. 487.02 were put in place to ensure that the authorization was carried out.

[10] The production of Mr. Khan's subscriber information at the direction of the police was not authorized by the omnibus intercept authorization or any other order. I agree with the applicant that the warrantless seizure of that private information was not authorized by law and therefore a breach of his right under s. 8 of the Charter to be secure against unreasonable search or seizure.

s. 24(2) – Exclusion of Evidence

[11] The defence applies under s. 24(2) to exclude the subscriber information obtained by the breach as well as any further information that flowed from that query that might have provided grounds for Mr. Khan's subsequent arrest. The Crown agreed that if a breach were found, exclusion would reasonably include information obtained by the breach.

[12] The expansion of the investigation beyond the authorization without further court application and without grounds is a serious breach. There's been no evidence called as to why the police made that request or whether they thought it was lawful. Unlawfully obtaining personal subscriber information undermines that person's right to privacy. It's not known whether the officers obtained subscriber information for other persons who may have called one of the many listed targets, but if they did so in relation to a completely innocuous conversation it's almost certain that there were other such queries. In any event, this breach shows either a wilful or reckless disregard of the rights protected by s. 8 of the Charter. Admission of that evidence would have a negative effect on public confidence in the rule of law and would risk bringing the administration of justice into disrepute. This is not a case where society's interest in the adjudication of the case on the merits is necessarily extinguished by the exclusion of the evidence obtained by the breach.

[13] I agree with both parties as to the scope of information to be excluded. The subscriber information and any information about Mr. Khan obtained by the breach cannot be relied upon by the Crown for any purpose at trial.

Delivered: 12 November, 2020

Justice Joseph F. Kenkel