CITATION: H.M.Q. and Telus Communications Company, 2015 ONSC 3072
Court File No.
DATE: 20150513
SUPERIOR COURT OF JUSTICE - ONTARIO
Toronto Region
RE: IN THE MATTER OF an application for a Transmission Data Recorder Warrant and other relief
BEFORE: NORDHEIMER J.
COUNSEL: M. Asma, for the Provincial Crown
S. Hutchison, for Telus Communications Company
HEARD: written submissions
E N D O R S E M E N T
[1] This endorsement arises out of somewhat unusual circumstances. The Crown brought an ex parte application to obtain a transmission data recorder warrant, tracking warrant and related assistance order as part of a police investigation into certain criminal activities.[^1]
[2] Telus Communications Company has raised an issue with the police about the appropriateness of using assistance orders to obtain subscriber information from telecommunication companies. By subscriber information, I refer to the name and address of the person to whom the cellular telephone is connected and not to other information that might be obtained such as location information. It is Telus’ position that assistance orders cannot be used to obtain subscriber information. Rather, Telus says that the police have to obtain a general warrant to access such information.
[3] As part of the materials provided to the court to obtain these specific warrants/orders, the Crown provided a memorandum of argument in favour of the position that assistance orders are the appropriate route to be taken to obtain subscriber information, in these circumstances. At the same time, the Crown included, in its material, a nine page letter, dated April 29, 2015, that counsel for Telus had provided to the Toronto Police Service setting out its position that assistance orders cannot be relied upon for this purpose but that a general warrant is necessary. Telus’ counsel had asked the Toronto Police Service to advise any judge or Justice of the Peace of its client’s position, as reflected in the letter, when seeking such warrants.
[4] Telus relies principally on the decision in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 in support of its position. Telus also says that certain decisions of this court, subsequent to the decision in Spencer (including one of mine), and that do not support Telus’ position, were incorrectly decided.
[5] I will first set out the applicable statutory provisions. A transmission data recorder warrant can be obtained under s. 492.2 of the Criminal Code, which reads, in part:
(1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder.
(2) The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the transmission data recorder, including covertly.
(6) The following definitions apply in this section.
"transmission data" means data that
(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;
(b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and
(c) does not reveal the substance, meaning or purpose of the communication.
[6] An assistance order may be obtained under s. 487.02, which reads:
If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.
[7] Telus says that the definition of “transmission data” does not include the subscriber’s name or address information. While that is true, that result, of course, explains why recourse to some other form of relief is necessary to obtain that information. The issue is whether the assistance order provision can provide that relief or whether recourse must be had to the general warrant provision.
[8] A general warrant, under s. 487.01, is only available if there is no other authority available under the Criminal Code, or any other Act of Parliament, to obtain the information. It must be clear, therefore, that an assistance order (or some other remedy) does not allow for the production of the information before resort can be had to the general warrant provisions. Simply put, general warrants are the recourse of last resort.
[9] In its submissions, Telus variously refers to subscriber information as private or confidential. It also asserts that there is an expectation of privacy in this information. Both the characterization of this information as confidential and the assertion that the information carries with it an expectation of privacy are put forward by Telus without any evidentiary foundation. This is of importance, among other reasons, because, as pointed out in Spencer, a person’s subjective expectation of privacy is an important part of the privacy analysis under s. 8 of the Charter of Rights and Freedoms. Another important part of the privacy analysis is whether any expectation of privacy is objectively reasonable. In that regard, the anonymous nature of the activities that were of concern in Spencer played a very large role in the privacy analysis. It is far from clear that the same concerns arise here. Yet another important point from Spencer is that that decision dealt with whether the police required some form of judicial authorization to obtain the information. The decision did not deal with the type of judicial authorization that was required.
[10] I contrast Telus’ position on the privacy point with the realities, that I mentioned in an earlier decision[^2], that information regarding a person’s address and telephone number was, until the recent decline of telephone books, readily available to any person who simply looked up someone’s name in those books. Even today, web based services such as Canada 411 still provide such information. Further, a very common feature of cellular telephones and cellular telephone plans is call display, a feature that reveals the number of any telephone that calls another. In light of these realities, Telus does not offer any reason why subscriber information of this limited type should be viewed or treated any differently just because it relates to a cellular telephone as opposed to a landline telephone.
[11] I would add that I am not alone in this view. My colleague, Code J., reached the same conclusion in R. v. Khan, 2014 ONSC 5664 where he said, at para. 27:
As noted above, a consistent line of authority has held that there is no reasonable expectation of privacy in the name associated with a phone number. Spencer did not reverse these authorities.
[12] The same conclusion was reached by Pardu, J. in R. v. Schertzer, [2011] O.J. No. 6528 (S.C.J.) where she said, at para. 25:
Many courts have held that there is no reasonable expectation of privacy in this information and I see no reason to disagree with them.[^3]
[13] In response to these authorities, Telus says that the assistance order does much more than provide just the name and address of the subscriber. It says that the disclosure of the subscriber information:
…will permit the police to learn who these customers associate with, when those communications are taking place, and for how long.
[14] In my view, in making that assertion Telus conflates the different authorities that the police are seeking. The assistance order does not provide the information about which Telus complains. It is the transmission data recorder that provides that information and the court has, by definition, already determined that that information ought to be provided to the police by granting the transmission data recorder warrant.
[15] Further, it is important to remember the purpose behind making an assistance order. An assistance order is granted where the court is satisfied that a person’s assistance “may reasonably be considered to be required to give effect to the authorization or warrant”. The reality is, of course, that the data obtained through the transmission data recorder warrant is of little or no use to the police unless they are provided with the identities of the persons who are connected to the cellular telephone numbers that represent the beginning and the end of the data transmitted.[^4]
[16] I am currently satisfied, therefore, that an assistance order is the appropriate route to take for the purpose of the police obtaining the subscriber information.
[17] Before concluding, I will add that I appreciate that this is not the best way of hearing and determining this issue. It is, however, the only practical way of addressing the issue, at least initially, where the police are seeking an investigative tool that must, for the validity of the investigation as a whole, remain secret. Nonetheless, I will say, as I did on an earlier such application, that if Telus turns out to be impacted by the warrants/orders I have granted in this case, and Telus wishes the opportunity to further address the issue raised, Telus may arrange with the Crown for a hearing before me for that purpose. It should be clear, though, that if Telus wishes to avail itself of that opportunity, it must still comply with the warrants/orders in the interim.
NORDHEIMER J.
DATE: May 13, 2015
[^1]: The information filed in support of that application is subject to a sealing order for what should be obvious reasons.
[^2]: R. v. Lattif, [2015] O.J. No. 1153 (S.C.J.)
[^3]: See R. v. Wilson, [2009] O.J. No. 1067 (S.C.); R. v. Friers, 2008 ONCJ 740, [2008] O.J. No. 5646; R. v. Spencer, 2009 SKQB 341, [2009] S.J. No. 798; R. v. McNeice, 2010 BCSC 1544, [2010] B.C.J. No. 2131; R. v. Hutchings (1996), 1996 703 (BC CA), 111 C.C.C. (3d) 215 (B.C.C.A.); R. v. Brown, [2000] O.J. No. 1177 (S.C.).
[^4]: This reality is confirmed by the affidavit of the Detective Constable filed in support of the particular warrants/orders sought in this case.