ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: CRIMJ(P)299/14; CRIMJ(P)300/14;
CRIMJ(P)299A/14; CRIMJ(P)300A/14

DATE: 2014-07-16

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P)299/14

B E T W E E N:

Her Majesty the Queen

Eric W. G. Taylor, for Her Majesty the Queen

Respondent

• and -

Rogers Communications Partnership

Scott C. Hutchinson and Christine Mainville, for the Applicant

Applicant

COURT FILE NO.: CRIMJ(P)300/14

AND B E T W E E N:

Her Majesty the Queen

Eric W. G. Taylor, for Her Majesty the Queen

Respondent

• and -

Telus Communications Company

Scott C. Hutchinson and Christine Mainville, for the Applicant

Applicant

COURT FILE NOS.: CRIMJ(P)299A/14; CRIMJ(P)300A/14

AND IN THE MATTER OF an ex parte application to revoke, renew or vary a production order, pursuant to s. 487.012(5) of the Criminal Code.

Her Majesty the Queen

Eric W. G. Taylor, for Her Majesty the Queen

Applicant

HEARD: June 20, 2014

REASONS FOR DECISION

Contents

INTRODUCTION. 1

THE EVIDENCE. 3

Should the revocation application proceed ex parte and be granted? 5

The Law. 5

Position of the Crown. 7

Position of Rogers and Telus. 7

Analysis. 8

SHOULD THE APPLICATIONS BE HEARD, EVEN IF MOOT?. 10

The Law. 10

Position of the Crown. 10

Position of Rogers and Telus. 11

Analysis. 12

CONCLUSION. 14

Sproat, J.

INTRODUCTION

1The Peel Regional Police (“PRP”) obtained a “tower dump” production order pursuant to s. 487.012 of the Criminal Code, requiring Rogers Communications Partnership (“Rogers”) and Telus Communications Company (“Telus”) to provide customer information regarding all calls routed through 21 cell towers during specified time periods. In broad terms, the PRP want to further an investigation by identifying persons using cell phones in the vicinity of known criminal activity.

2Rogers and Telus applied for an order that the production orders be quashed pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms or, in the alternative, that they be granted an exemption from the requirement to produce under s. 487.015(1) of the Criminal Code.

3The PRP then applied to revoke the production orders under s. 487.012(5) of the Criminal Code. This was originally brought ex parte before a Justice of the Peace who declined to grant the revocation orders because the PRP had not provided any reason for seeking revocation. The revocation applications were then brought to this court. The affidavits filed in support of the applications to revoke indicate that:

a. After Rogers and Telus officials raised the issue of how onerous the production orders were, the PRP indicated a willingness to accept more limited information from six cell tower locations;

b. The applications filed by Rogers and Telus stayed the production orders such that the police have not received any of the requested information; and

c. Without prejudice to the position that the original production orders were valid, in order to advance the investigation, the PRP sought to revoke the original production orders and obtain more limited production orders.

4The position of the Crown is that the application to revoke should proceed ex parte and that, upon revocation, the Rogers and Telus applications are moot and should not be heard.

5The position of Rogers and Telus is that the application to revoke should be heard inter partes at the same time as the Rogers and Telus applications. Mr. Hutchison, properly sensitive to PRP investigative concerns, agreed that if the police wanted to obtain new, more limited production orders he would not challenge them on the basis that they duplicated the original orders. He further indicated that if the limited orders took the form he anticipated they would not be challenged at all. Mr. Hutchinson’s position, therefore, is that the applications are not moot or alternatively, even if moot should be heard.

6On July 9, 2014, I advised the parties of my ruling, in order that the PRP investigation not be delayed, with reasons to follow. These are my reasons.

7I will provide an overview of the Rogers and Telus evidence on the Charter applications and then address:

a) whether the Crown application to revoke the production orders should proceed ex parte and, if so, whether it should be granted; and

b) if the Charter applications are rendered moot by the revocation of the production orders, should the applications nevertheless proceed to a hearing?

THE EVIDENCE

8Mobile telephones check into wireless networks by connecting to antennas that are frequently mounted on towers. A record is created whenever the telephone attempts or completes a communication which could be a phone call, text message or e-mail. The record identifies the particular tower at which the phone connected to the system. Each tower serves a geographical area ranging from a 10-25 km radius in the country and 1-2 km, radius (or even less) in the city.

9The production orders against Rogers and Telus are in similar form. The orders require cell phone records for all phones activated, transmitting and receiving data through 21 specified Telus towers and 16 Rogers towers. The orders require the name and address of every subscriber making or attempting a communication and the particular cell tower being utilized. The orders are framed such that if both the person initiating and receiving the communication are Rogers (or Telus) subscribers, then information regarding the recipient must also be provided and the cell tower the recipient used must also be provided. The orders also require billing information which may include bank and credit card information.

10Telus and Rogers are both contractually obliged, subject to narrow exceptions, to keep customer personal information private and confidential.

11The existing order will require Telus to disclose the personal information of at least 9,000 individuals. Rogers estimates that it will be required to conduct 378 separate searches and retrieve approximately 200,000 records related to 34,000 subscribers.

12The existing orders do not specify how the customer information is to be safeguarded and does not restrict the purposes for which the PRP may use the information. For example the PRP is not restricted from retaining the information and using it with respect to unrelated investigations.

13The Telus affidavit indicates that since 2004 it has dealt with thousands of court orders requiring cell records. In 2013 alone, it responded to approximately 2,500 production orders and general warrants. To the knowledge of the Telus deponent, the order that it now challenges is the most extensive to date in terms of the number of cell tower locations, and length of time periods, for which customer information is required.

14The Rogers affidavit indicates that from 1985 to 2014 it has complied with many thousands of production orders. In 2013, alone it produced 13,800 “files” in response to production orders and search warrants.

Should the revocation application proceed ex parte and be granted?

The Law

15Section 487.012(5) of the Criminal Code provides, with respect to production orders:

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.

16In R. v. S.A.B., 2003 SCC 60; [2003] 2 S.C.R. 678, which was concerned with Criminal Code provisions allowing for ex parte applications for DNA warrants for investigative purposes Arbour J. stated:

56. Finally, the appellant contends that the ex parte nature of the proceedings renders the legislation unconstitutional. Requiring an inter partes hearing for a search warrant that is part of the investigative process could unnecessarily draw out and frustrate the criminal investigation. However, the majority of the Court of Appeal was correct to observe that the reference to ex parte proceedings is not mandatory. Indeed, s. 487.05(1) does not deprive a judge of the option of requiring a contested hearing in a suitable case. An issuing judge may find it advisable to require notice in order to ensure reasonableness and fairness in the circumstances. But, as with most investigative techniques, the ex parte nature of the proceedings is constitutionally acceptable as a norm because of the risk that the suspect would take steps to frustrate the proper execution of the warrant.

17In R. v. Rodgers, 2006 SCC 15; [2006] 1 S.C.R. 554, the Court considered Criminal Code provisions allowing ex parte applications to obtain samples for DNA analysis from persons previously convicted. Charron J., for the majority, stated:

16. This Court in S.A.B. considered language to the same effect contained in s. 487.05 and held that the reference to ex parte proceedings is not mandatory. The authorizing judge may require that notice be given in a suitable case “to ensure reasonableness and fairness in the circumstances” (para. 56). Section 485.055 should be read in the same way. It only permits but does not require an ex parte proceeding.

Position of the Crown

18Without prejudice to his position that the revocation application must be ex parte, Mr. Taylor helpfully agreed to provide Mr. Hutchison with a copy of the affidavit he filed in support of the revocation application.

19Mr. Taylor made the following points:

a) section 487.012(5) specifically provides for an ex parte application;

b) an application to revoke by its nature relieves the target of the order from an obligation so that notice serves no purpose; and

c) section 487.015(1) allows a person named in a production order to obtain relief in the form of an exemption. This reinforces the position that the statutory scheme does not contemplate the person named in the production order participating at an earlier stage in the process.

Position of Rogers and Telus

20Mr. Hutchinson submits that the police are utilizing the s.487.012(5) power to revoke a production order a manner that is abusive in that it renders moot the Rogers-Telus Charter applications. This is supported by the submission that the police, when originally seeking to have a Justice of the Peace revoke the production order, failed to meet the obligation of an ex parte applicant to make full disclosure which would include that there was already a Charter application pending before a judge that could be affected by revoking the production order.

Analysis

21On the authority of S.A.B. and Rodgers, an ex parte hearing is not mandatory. I have a discretion to require “a contested hearing in a suitable case” to “ensure reasonableness and fairness.”

22It remains that applications to revoke are almost invariably made ex parte. As the Crown points out, the interests of persons named in production orders are protected by their ability to apply under s. 487.015(1) for an exemption which stays the production order until a decision is made. This lends additional support to dealing with the applications to revoke on an ex parte basis.

23The PRP affidavit provides a logical, plausible reason for seeking the more limited production orders and denies that there was any intent to thwart the Rogers-Telus Charter applications. It is of course possible that, as with any question of fact, cross-examination of the deponent of the affidavit and a full hearing might lead to a different conclusion. The issue is whether it is in the interests of justice to conduct such a hearing.

24Rogers and Telus brought their Charter applications asserting the general proposition that production orders are obtained without due regard for the privacy interests of their customers. Litigating that issue, they submit, will provide guidance to the police and the telecommunications industry in the future.

25The objectives of Rogers and Telus would not be furthered by litigating the case specific question as to the motivation of the PRP in seeking to revoke these two production orders.

26For reasons that follow, I agree that the Rogers-Telus applications should be heard even if moot. The fact that Rogers-Telus will have their day in court provides additional support for my decision to not conduct an inter partes hearing on the Crown’s revocation applications.

27As the PRP has no intention of requiring compliance with the original production orders it is appropriate that they be revoked and I so order.

SHOULD THE APPLICATIONS BE HEARD, EVEN IF MOOT?

The Law

28In British Columbia (Director of Child, Family and Community Service) v. Bahris (2006) 2006 22106 (ON CA), 28 R.F.L. (6th) 9 (Ont. C.A.), Rosenberg J.A. described the considerations as to when to hear a case that is moot:

10. … The three criteria applied in deciding whether to exercise the discretion are whether there still exists an adversarial relationship, concern for conserving judicial resources and sensitivity to the court’s proper law-making function. As regards this last factor, it is important to bear in mind what was said in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 at p. 362, “Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.”

Position of the Crown

29Mr. Taylor did not take issue with the fact that these applications would be fully and capably argued even if moot. He did submit that it would be an inappropriate use of judicial resources to hear these applications.

30Mr. Taylor further submitted that there is no legal uncertainty which requires clarification. Section 487.012 requires a case specific consideration of whether there are reasonable grounds to believe that the information sought in the production will afford evidence of the commission of the specific offence being investigated. Further, it would be inappropriate for the court to, in essence, formulate a special set of rules for “tower dumps”.

Position of Rogers and Telus

31Mr. Hutchison submitted that Rogers and Telus are by contract obliged to act as the custodians of their customers’ personal information and, as a practical matter, are the only persons in a position to assert their customers’ privacy rights and so ensure that production orders are Charter compliant.

32Rogers, Telus and police services across Canada have an ongoing institutional relationship such that, even if the case is moot, it will be fully argued by both sides given the significant implications for their ongoing relationship.

33Given the ongoing institutional relationship there is, to paraphrase Borowski, an ongoing dispute between the PRP and Rogers – Telus as to their respective rights. A court decision will provide guidance not only to the parties but more generally to police and the telecommunications industry.

34The policy that favours conserving judicial resources by not hearing cases that are moot should not be applied to cases, such as this one, in which a full hearing will be productive of a meaningful result. Further, there have already been a number of court appearances, leading to the half day argument on June 20, 2014, which will be wasted if the parties wait for another case to present itself.

Analysis

35I am in agreement with Rogers-Telus that the applications should be heard even if moot.

36The privacy rights of the tens of thousands of cell phone users is of obvious importance. Production orders are typically made on an ex parte application so it is unlikely that the issuing justice has detailed information regarding the contractual relationship between the telecommunications provider and its customers and, therefore, the customer’s reasonable expectation of privacy. Counsel for Rogers-Telus will be able to identify and argue Charter issues that might not otherwise be evident.

37As noted, Mr. Taylor submitted that the test under s. 487.012 of the Criminal Code is clear, namely whether there are reasonable grounds to believe the information sought will afford evidence of the commission of the specific offence being investigated. This formulation of the test, however, leaves out any consideration of the privacy interests of the tens of thousands of subscribers whose personal information is being disclosed. As I understand it, whether this is the correct test is one of the issues Rogers-Telus seek to litigate.

38With respect to the first criterion in the British Columbia case, there exists an ongoing institutional adversarial relationship between the police and telecommunications providers. While the subject orders are moot, the issues raised are not. Both sides continue to have an interest in presenting their case and will no doubt do so thoroughly and professionally.

39With respect to the second criterion, conserving judicial resources, the Charter – privacy interests of Canadians are of obvious importance. Despite the prevalence of “tower dumps” and other production orders related to cell phone records, no cases were brought to my attention which address the related privacy concerns. Individual subscribers obviously lack the means or incentive to raise these issues.

40Given that no judicial resources have to date been devoted to the issues that Rogers-Telus wish to raise, and given the time so far devoted to this case, I do not regard the need to conserve judicial resources as militating strongly against hearing the Rogers-Telus applications.

41With respect to the third criterion, sensitivity to the count’s proper law making function, there is effectively an ongoing dispute between the police and telecommunications providers. The fact the “tower dumps” are frequently used by police as an investigative tool is reflected in the material before me and is evident as a matter of judicial experience. The Rogers-Telus applications directly concern 40-50,000 individuals, it is safe to infer that the number of individuals affected across Canada would be in the hundreds of thousands, if not millions, every year.

CONCLUSION

42In accordance with these reasons I have signed the orders submitted by Mr. Taylor revoking the original production orders.

43While I understand that Mr. Hutchison takes no issue with me dealing with the PRP application for a more limited production order, I think it preferable that it be dealt with by a Justice of the Peace so that I am not made aware of information to obtain the order, that would not be known to Mr. Hutchison, as that may complicate matters going forward. Now that the prior orders have been revoked I assume more limited production orders can be obtained in short order so that the police investigation is not delayed further. If there are unanticipated difficulties in this regard Mr. Taylor may make further application to me.

44I leave it to the parties to attempt to reach an agreement on a schedule for the filing of materials, a time estimate for the hearing and any other procedural issues. I may be spoken to or, if the parties agree, any issues can be dealt with on the basis of written argument. I will then set dates for hearing, in consultation with the Trial Coordinator, which will not be earlier than October 20, 2014, given my trial commitments.

Sproat, J.