CITATION: H.M.Q. v. TELUS Communications Company, 2015 ONSC 3964
COURT FILE NO.: M095/15
DATE: 20150619
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
M. Asma & S. Tse, for the applicant
Applicant
- and -
TELUS COMMUNICATIONS COMPANY
S. Hutchison & S. Foda, for the respondent
Respondent
HEARD: June 12, 2015
Nordheimer J.:
[1] On May 13, 2015, on the ex parte application of the Crown and an officer of the Toronto Police Service, I granted a transmission data recorder warrant, an assistance order, a tracking warrant and other related orders as part of a police investigation into certain criminal activities. I will not go into any detail respecting the information filed in support of that application as it is subject to a sealing order, for what should be obvious reasons. Also, the specific facts of the investigation, that led to the authorizations that I granted, are not especially relevant to the issue that is raised in this particular application.
[2] At the time that I granted those authorizations, I gave reasons for doing so in an endorsement.[^1] I gave those reasons in part because, unlike most situations where ex parte applications are made, I had before me written submissions from TELUS regarding its position on whether an assistance order should be granted. TELUS had provided those written submissions to the Toronto Police Service, in advance of the matter that came before me, in anticipation that the Toronto Police Service would seek such orders. TELUS asked, if that occurred, that its written submissions be provided to the authorizing judge. Hence, those written submissions were fairly placed before me by the Crown and the officer.
[3] As a consequence of the somewhat unusual procedure by which this all took place, I said, in my endorsement, at para. 17:
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.
[4] TELUS has taken up that invitation and this hearing is the result.
I. Jurisdiction
[5] The Crown raises, as a preliminary issue, my jurisdiction to conduct this hearing. The Crown asserts that, having granted the authorizations, I am functus officio and have no jurisdiction to re-open the matter. The Crown does accept that I have the inherent jurisdiction, that any Superior court has, to review an ex parte order that has been granted, but the Crown says that that review must comply with the dictates set out in R. v. Wilson, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594. If the Crown is correct in that regard, the test for overturning the original decision is a high one. The more stringent test set out in Wilson was summarized in R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.) where Martin J.A. said, at p. 117:
On a “Wilson” application to set aside an authorization, the applicant must establish on a balance of probabilities that the authorization was obtained by fraud, material non-disclosure, misleading disclosure, or that there is new evidence which shows that the actual facts are different from those placed before the judge who granted the authorization.
[6] A further aspect of the Crown’s argument on this point is that the Crown says that TELUS does not have standing to launch such a review because, if there are any privacy rights engaged by the assistance order that I granted, those privacy rights belong to the customers of TELUS and not to TELUS itself.
[7] I do not accept the Crown’s submissions regarding TELUS’ position, on this hearing, for two reasons. First, there is the general principle that any person affected by an order of the court, granted on an ex parte basis, has the right to seek to have the order set aside once the order comes to their attention. That is a firmly established principle in civil proceedings, as is set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 37.14 of which reads:
A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
(c) is affected by an order of a registrar,
may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion. [emphasis added]
I see no reason why the process regarding an ex parte order in a criminal proceeding should be any different, save as may be expressly provided for by statute, such as the Criminal Code. I note, in that regard, that it was the procedure in civil proceedings regarding ex parte orders that the Supreme Court of Canada adopted as applying to ex parte orders in criminal proceedings in Wilson.
[8] Second is the fact that I expressly provided, in granting the authorizations, that TELUS could seek a hearing before me, if it was impacted by the authorizations granted, and it wished to make submissions on the specific issue that it had raised. Where a judge has expressly reserved to him/herself the opportunity for a further hearing, the functus officio principle has no application. That principle only applies where the order that has been made is final: see, for example, Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 at para. 19.
[9] I would also note, on this point, that there was nothing that prevented me from adjourning the ex parte hearing and directing that notice of it be given to TELUS so that it could have the opportunity to make submissions before the authorizations were granted. The Crown acknowledges that I could have followed that procedure. Had I proceeded in that fashion, however, the ongoing police investigation would have been delayed until that hearing could be held. I note, on that point, that this hearing is occurring almost a month after the authorizations were sought and granted. It would not be in the interests of the Crown, the police, and the public, to have investigations delayed in that way by a rigid adherence to a particular process.
[10] I am satisfied, therefore, that TELUS has the right to seek this hearing and that I have the jurisdiction to conduct it.
[11] That conclusion does not specifically address the nature of the hearing that is before me. I accept the Crown’s point that this is not just a continuation of the original hearing. It might be characterized as a re-opening of the early hearing but it might also be characterized, as the Crown contends, as a hearing in the nature of a review of the original order. I am not sure whether there is any difference, in substance, between a re-opening and a review. However, if this hearing is properly said to be a review of the authorizations, I do not accept that it is subject to the constraints set out in Wilson, given the process by which this hearing came about.
II. The scope of an assistance order
(a) the statutory framework
[12] The main issue raised is whether or not an assistance order, obtained under s. 487.02 of the Criminal Code, is sufficient authority to compel TELUS to reveal to the police the name and address of a TELUS subscriber, whose phone number has been revealed to the police as a result of a transmission data recorder warrant, obtained under s. 492.2 of the Criminal Code. TELUS says that it is not and that the police need to obtain a general warrant, under s. 487.01 of the Criminal Code, to obtain that information. I begin by setting out the two sections in issue.
[13] Assistance orders are available under s. 487.02 that 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.
[14] Transmission data recorder warrants are available under s. 492.2 of the Criminal Code, that 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.
[15] The function of a transmission data recorder warrant (“TDRW”) is to provide the police with information regarding the activity on a cellular telephone. More specifically, it can be used to reveal communications made to and from the phone, that is, calls made to and from the phone and text messages sent to and from the phone. If so configured, it may permit other communications, such as email messages or social media contacts, to be tracked. Whichever communications are being tracked, however, the TDRW does not reveal the content of any of those communications. In other words, the TDRW reveals the fact of a communication between phones but not the actual communication.
(b) the privacy issues
[16] TELUS asserts that it has privacy interests in its own business records. TELUS also asserts that its customers have their own separate privacy interests in the records that TELUS keeps. The Crown disputes that TELUS has a privacy interest in its business records. The Crown accepts that customers have a privacy interest, in some of the records that TELUS keeps, but not in the customer’s name or address.
[17] I accept that TELUS has a privacy interest in its own business records as any company would have. The records belong to TELUS and will contain proprietary commercial information that is important to TELUS’s ongoing business. TELUS is entitled to keep the contents of those records private and to not reveal the contents of those records to anyone, save for those to whom TELUS chooses to reveal the contents, or those to whom it is ordered to give the information by a valid court order or legislative directive. To that extent, TELUS’s privacy interests are engaged in this case. I recognize that the privacy interests of TELUS’s customers may also be engaged.
[18] I do note that TELUS has, in the past, willingly provided to the police, without any court order or other authorization, the name and address of its customers, on a simple request being made by a police service advising that such information was needed for an ongoing police investigation. TELUS says that is has changed that practice as a result of the decision of the Supreme Court of Canada in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212. Irrespective of the reason for the change, it was always open to TELUS to refuse to provide information from its records to the police, unless ordered to do so. Whether such an approach would have been consistent with being a good corporate citizen is a different issue and one that I need not comment on. The information in TELUS’s business records belongs to TELUS and TELUS is thus entitled to decide who can have access to that information, absent a lawful compulsion to reveal it.
[19] Consequently, regardless of whether TEUS’ customers have privacy interests in the subscriber information, TELUS does.[^2] Consequently, some form of court authorization was required to compel TELUS to provide that information to the police.
(c) the decision in R. v. Spencer
[20] I now turn to the decision in Spencer, which is at the heart of the dispute here.
[21] In Spencer, the police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file-sharing program. The police then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address. This led the police to Mr. Spencer, who was charged with, and ultimately convicted of, possession of child pornography. On appeal, Mr. Spencer contended that the police had obtained his subscriber information through an unconstitutional search.
[22] While the trial judge and the Saskatchewan Court of Appeal concluded that the obtaining of the subscriber information did not constitute a search, the Supreme Court of Canada disagreed. They held that the manner in which the police had obtained the subscriber information constituted a search, and that it was an unlawful search, because the police had not obtained judicial authorization for the search. Nevertheless, the Supreme Court of Canada concluded that the evidence ought not to be excluded under s. 24(2) of the Charter.
[23] In my view, there are two aspects of the decision in Spencer that are important to keep in mind. One is that the decision deals with the Internet and the challenges that the use of the Internet poses for privacy issues. The decision does not deal generally with the use of cellular telephones, although I recognize that there can be a measure of overlap between the two in terms of the issues that may arise. The other is that the issue in Spencer was whether the police needed a court authorization to obtain the subscriber information. The Supreme Court of Canada concluded that they did. The decision in Spencer does not deal, however, with the type of judicial authorization that is needed.
[24] The decision in Spencer concluded that Mr. Spencer had a reasonable expectation of privacy in the subscriber information in the particular circumstances that arose in that case. There is not, to my reading, a finding in Spencer that there is always a reasonable expectation of privacy in subscriber information. Whether there is a reasonable expectation of privacy in subscriber information will vary depending on the facts of the specific case.
(d) reasonable expectation of privacy
[25] This leads then to the question whether there is a reasonable expectation of privacy in subscriber information standing by itself. In Spencer, Cromwell J. set out four factors to be considered in answering that question. He said, at para. 18:
The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: [citations omitted]
[26] The subject matter of the search in this instance is the name and address of subscribers of TELUS who are identified by the TDRW as having phones that communicated with the phone being used by the target of the police investigation. In an effort to be clearer on this point, the TDRW reveals the phones that are in communication with the target’s phone. For the sake of convenience, I will refer to those phones as the “unknowns”. The assistance order then requires every telecommunications company (“Telco”), who has subscribers among the unknowns, to reveal to the police the names and addresses of those unknowns.
[27] It is of some importance to recognize that the assistance order requires the Telcos to provide this information prospectively. This is in contrast to a production order (or search warrant) that can only compel the production of the information after the fact. I will return to this point later.
[28] In terms of the first two factors, the subject matter of the search is the name and address of the unknowns. I accept that each unknown has an interest in their name and address. There does not appear to be any dispute on that point.
[29] Do the unknowns have a subjective expectation of privacy in their name and address and, if so, is that expectation of privacy a reasonable one? As I noted in my earlier endorsement, there is a long line of cases that have held that there is no expectation of privacy in the name and address associated with a phone number – see, for example, R. v. Schertzer, [2011] O.J. No. 6528 (S.C.J.) and the cases cited therein at para. 25. I recognize, though, that many of those decisions dealt with landlines and not cellular telephones. As TELUS has pointed out in its material filed on this hearing, and in an apparent effort to correct my understanding of it, there are differences between landlines and cellular telephones in terms of how names, addresses and phone numbers are handled.
[30] The issue is whether the decision in Spencer intended to overturn those earlier decisions, as TELUS contends that it did. My colleague, Code J., concluded to the contrary. He said, in R. v. Khan, 2014 ONSC 5664, 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.
[31] I agree with Code J. that Spencer did not reverse those earlier authorities. It certainly did not do so directly, and I do not believe that it intended to do so indirectly, although I acknowledge that some of the language used in Spencer, viewed in isolation, could be relied upon to advance that suggestion. On that latter point, there is a finding in Spencer that there can be a reasonable expectation of privacy in subscriber information. For example, at para. 66, Cromwell J. said:
In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. [emphasis added]
As that statement reveals, however, the conclusion is directly tied to the factual circumstances of that case. As I shall come to explain, those factual circumstances do not mirror the ones that are present here.
[32] The material filed does not satisfy me that there is any expectation of privacy of a TELUS customer solely in the fact of their name and address and its link to a particular phone number. I reach that conclusion for the following reasons. First is the fact that TELUS’ own contractual documentation with its customers makes it clear that TELUS does not view the name and address of its subscribers to be private information. This is confirmed in the affidavit of Don Calpito, filed on behalf of TELUS on this application, at para. 41:
The current service agreement stipulates that “All information that TELUS keeps with respect to you [the customer] and your service, other than your name and address, is confidential. [emphasis added]
[33] Counsel for TELUS attempts to draw a distinction between information that is private and information that is confidential but that is a distinction, in this instance, without a difference. There is nothing in the material that demonstrates that, in some fashion, TELUS was drawing such a distinction for its customers’ benefit. Indeed, no such distinction was drawn in TELUS’ factum.[^3] Rather, it is clear that TELUS was advising its customers that the one exception to its policy of keeping its customers’ information private is the name and address of the customer.
[34] Second is the reality that historically the name and address linked to a phone number has been publicly available. That certainly was, and still is, the case with landlines. All telephone numbers were publicly available through the white pages directory, unless a customer paid for an unlisted number. TELUS fairly points out, and I accept, that the same is not true with respect to cellular telephone numbers. However, the evidence is far from clear that the non-publication of cellular telephone numbers arose from any sea change in the attitude of customers whereby they suddenly decided that they wished to keep this information private. Rather, it appears to have arisen from the reality that Telcos did not want to bear the expense of publishing the cellular equivalent of the white pages, or provide that information to current publishers of telephone directories, or services like Canada411.ca. One can draw that conclusion from, among others, the fact that TELUS will publish a customer’s name, address and phone number, but only if the customer pays a monthly fee for that service. In TELUS’s case, only 39 of its 1,974,544 customers have availed themselves of that option.
[35] Third, most plans offered by Telcos include caller display. Certainly that is the case with TELUS’s plans. That means that, when a wireless phone receives a call, the calling number is displayed but not the name of the subscriber. This is another difference from landlines where normally both the name and number are revealed by call display. However, with most cellular telephones, if the recipient of a call has placed, in his or her contacts list, the name and telephone number of the caller, when that person calls the recipient’s telephone, their name is displayed because the phone automatically accesses the contact list to make that connection.
[36] In my view, these facts not support a conclusion that persons, who use cellular telephones, rather than landlines, view their name, address and phone number as being any more inherently private information than landline subscribers do. I recognize that some individuals may pay for services, such as an unlisted telephone number or a call display restriction with either form of telephone. Those persons are very much the exception, however. For example, only 0.03% of TELUS customers have a call display-restrict option on their cellular telephones.
[37] All of this leads me to the conclusion that cellular telephone customers do not have an expectation of privacy in their name and address as it is linked to their telephone number, by itself. Further, even if a particular customer asserted that they had a subjective privacy interest in subscriber information alone, it would not be reasonable on an objective basis. I reiterate that I reach that conclusion only with respect to subscriber information standing alone, that is, the simple fact that a particular number is related to a particular individual and the address of that individual. In that respect, the issue in this case can be distinguished from the cases upon which TELUS relied, e.g. R. v. MacInnis, [2007] O.J. No. 2930 (S.C.J.) and R. v. Mahmood, 2008 CanLII 51774 (ON SC), [2008] O.J. No. 3922 (S.C.J.), that dealt with privacy concerns regarding the actual contents of cellular telephone records and not simply the subscriber information.
[38] However, even if I am wrong in that conclusion, and there is an expectation of privacy in subscriber information standing alone, then I am of the view that it is at the lowest end of the spectrum of privacy interests, for the reasons that I have already identified.
[39] TELUS contends that the situation here matches the situation in Spencer because, once the police have the subscriber information for an unknown, it then reveals a great deal about that person, specifically, all communications that that person had with the target, including the date when the communication took place, the time when the communication occurred, the length of the communication and the location of the phone when the communication occurred. I should note, on that latter point, that the Toronto Police Service filters out the location information, if it is included in the data received under the TDRW, unless it has received a separate authorization for the location information, such as would be authorized by a tracking warrant. In this case, a tracking warrant was granted. While that position is commendable, it does not change the fact that the TDRW does appear to allow for such information to be included in the data since the definition of transmission data includes “origin” and “destination”. While that may not have been the intention of a TDRW, that appears to be the result. I understand that whether location information is included in a Telco’s response to a TDRW varies from Telco to Telco.
[40] On the surface, the information that the police ultimately wind up with includes much more than just the name and address of the subscriber. While those circumstances might suggest a similarity to Spencer, I believe that TELUS’s position muddles two different matters. Obtaining the subscriber information, through the assistance order, does not inexorably lead to the police having this other trove of information. That fact distinguishes the circumstances in this case from those in Spencer. In Spencer, the police already had the information regarding the presence of child pornography on a computer. They had been able to obtain that information from publicly available sources, that is, particular Internet sources that revealed that information, notably, the IP address for the computer. All the police needed was the identity of the user of that computer to link him or her to the possession of the child pornography. They obtained that identity from the internet service provider. The police were then able to marry up the activity relating to the possession of child pornography with Mr. Spencer’s computer and they were able to do so all without any form of judicial authorization. It is understandable why, in those particular circumstances, the Supreme Court of Canada concluded that the failure to obtain a judicial authorization for the subscriber information constituted an unwarranted invasion of Mr. Spencer’s privacy.
[41] In this case, however, the obtaining of the subscriber information does not tell the police anything other than the identity of the person who is linked to a particular phone number. What tells the police that that phone has been in contact with the target’s phone, and all of the other detailed information related to that communication, is the TDRW. Put simply, it is the TDRW that reveals all of the communications between these phones and the details of those communications. The assistance order merely provides the identity of the unknown associated to the phone that sent or received them.
[42] At the risk of being repetitive, the information that can reasonably be argued to be private is the fact that someone’s phone contacted someone else’s phone on a specific day, at a specific time and for a specific length of time. That private information is revealed by the operation of the TDRW. The TDRW is the subject of a separate judicial authorization. In other words, it is the result of the judicial authorization for a TDRW that infringes the privacy of the person concerned by revealing the activity that was intended to be private. All that the assistance order does is provide the identity of that person, without which the private information received would have little or no value, or, put another way, would be of little or no effect.
(e) the purpose and effect of the assistance order
[43] To some degree, the issue over whether the customer has a privacy interest in his/her subscriber information is not particularly relevant to the analysis since, if TELUS has a privacy interest in the subscriber information (as I have concluded that it does), then the efforts of the police to obtain that information still engages a privacy interest.
[44] TELUS submits, and I agree, that the assistance order cannot be used to expand the search power obtained by the police through the TDRW. I do not perceive the Crown to take issue with that point. In other words, the assistance order does not constitute a stand-alone authority to engage in a search. Rather, as its name suggests, the function of an assistance order is to provide assistance to other authorizations, that are obtained, so that those authorizations are effective.
[45] TELUS contends that all an assistance order is intended to do is to ensure that the technical aspects, of making the TDRW operate as intended, are achieved. I do not agree. The wording of s. 487.02 is not that narrow. The section refers expressly to the fact that the granting of an assistance order is for the purpose of giving “effect to” an authorization. It does not say, for example, that its purpose is to “implement” or “execute” an authorization. In my view, to give effect to an authorization is not to be read as simply requiring the application of technical know-how, such as connecting wires, or flicking switches, or permitting the police to “plug into” a system. Rather, an assistance order is intended to do exactly what it says: to give effect to the authorization. I note that one of the definitions for the word “effect” is “the extent to which something succeeds or is operative”.[^4]
[46] A TDRW gives the police information regarding what phones have had contact with the target’s phone. The reality is that there is little investigative benefit to that information unless one also knows who the various phones belong to (or at least appear to belong to). The police need to know the identities of the unknowns to make the information, revealed by the TDRW, of use for their investigation. This fact simply reflects the reality that phones do not commit crimes, people do. In other words, the police want to know that A is communicating with B, not that an iPhone is communicating with a BlackBerry.
[47] By granting the TDRW, a judge has been satisfied that the police should have access to transmission data because there are reasonable grounds to suspect that an offence has been, or will be, committed and that transmission data will assist in the investigation of the offence. In other words, there are reasonable grounds to suspect that one or more persons are engaged in criminal activity and it will assist the investigation to know who the target is communicating with in order to, among other reasons, identify other persons who may be involved in the criminal activity. It is the TDRW that provides the required authorization to obtain the information that is truly private, that is, the fact of the communications and their related details. However, to “give effect to” that information, the police need to know the identities that are linked to the communications that are revealed by the TDRW. The assistance order thus allows the TDRW to succeed at its intended objective by requiring Telcos to provide the police with the subscriber information.
[48] TELUS contends that the above analysis gives a “tortured” interpretation to s. 487.02. To avoid that result, TELUS says that, if the police need the subscriber information, they should follow one of two alternative routes. One route is for the police to obtain a production order. That route has a central problem, however. Production orders cannot operate prospectively. Therefore, if the police chose that route, they would either have to wait until the conclusion of the operation of the TDRW, and then seek production orders for all of the required subscriber information, or they would have to bring a series of separate applications for production orders to obtain the information, as the various telephone numbers are revealed during the ongoing operation of the TDRW.
[49] The other route, according to TELUS, is that the police could seek a general warrant under s. 487.01. The difficulty with that route is that a general warrant, by the express wording of s. 487.01, can only be obtained if there is no other authority available under the Criminal Code, or any other Act of Parliament, to obtain the information. In other words, a general warrant is an authorization that is, essentially, one of last resort. It is to be utilized only where the police can satisfy a judge that they cannot obtain the information that they need through any other form of judicial authorization. As Abella J. said in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3 at para. 19:
In other words, s. 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively. This is to prevent the circumvention of more specific or rigorous pre-authorization requirements for warrants [citation omitted].
or as Moldaver J. said, in the same case, at para. 56:
The requirement that there be “no other provision” that would provide for the search ensures that the general warrant is used sparingly as a warrant of limited resort.
[50] This is of importance because, if the police choose the wrong route, they run the risk of losing the benefit of the information that they obtain and that may have the effect of undermining any subsequent prosecution. This danger, and the consequent need for clarity in the proper route to be taken, was identified in TELUS where Moldaver J. said, at para. 80:
Where uncertainty exists, the police would do well to err on the side of caution. They must know - with certainty - that general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous preconditions.
[51] I acknowledge, as TELUS points out, that the precondition at issue here is a less onerous standard, that is, reasonable grounds to suspect as opposed to reasonable grounds to believe. But that less onerous precondition is a function of the requirements for the authorization of a TDRW, not the granting of an assistance order. In other words, Parliament has decided that the information provided by accessing the transmission data can be granted through an authorization obtained on the reasonable grounds to suspect standard. If someone has an issue with the use of a lower standard for the purpose of accessing such information, that is an issue to be raised with respect to the basis for granting the TDRW. It cannot be tacked on to the requirement for obtaining an assistance order, nor be used to raise the bar to obtain an assistance order, over and above that which is necessary to obtain the authorization that the assistance order simply helps to give effect to.
[52] Finally, TELUS says that the assistance order should not be interpreted as permitting the police to obtain the subscriber information because Parliament did not include such information within the confines of the TDRW authorization. Specifically, Parliament did not include subscriber information in the definition of transmission data and, therefore, it can be taken that Parliament did not intend that subscriber information would be obtained through a TDRW.
[53] Once again, I do not agree with TELUS’ position on this point. I fully understand why subscriber information would not have been included in the definition of transmission data. It has nothing to do with transmission data. Indeed, it would have been a strange result to draft a definition of transmission data that included the name and address of either the sender or receiver of that data. One only has to look at the existing definition of transmission data to see how subscriber information would not fit comfortably into such a definition.
[54] I appreciate TELUS’ point that Parliament could have otherwise included, in s. 492.2, subscriber information within the ambit of the intended authorization, without including it in the definition of transmission data. At the same time, Parliament also knew that an assistance order existed under s. 487.02. It is a provision of general application to all warrants issued under the Criminal Code. There is no reason to believe that Parliament did not intend to leave the issue, whether subscriber information was needed in any particular instance, to be addressed under that general provision. As counsel for TELUS himself pointed out, there may be situations where the police already know the subscriber information, but are merely looking for the evidence of communications between known phones. In that case, all that the police require is the TDRW.
[55] I will make one final observation. All of these sections of the Criminal Code, that set out the various authorizations that may be granted, are designed to assist the police in their investigations of criminal activity. They ought to be interpreted in a manner that facilitates such investigations balanced against the recognized requirement that the police demonstrate good reason for the infringement of any person’s privacy. That balance is protected by the requirement that the police obtain judicial authorization for any route that they take. These sections ought not to be interpreted in a manner that simply creates a technical maze, through which the police are to be put, with no certainty whether the path that the police ultimately take will have them arrive at the desired endpoint, especially when, had the correct path been taken, the desired information would nonetheless have been obtained.
[56] In the end result, I am satisfied that an assistance order is available for the purpose of compelling TELUS to provide the subscriber information for the telephone numbers revealed by a TDRW and, consequently, a general warrant is neither required nor available for that purpose.
NORDHEIMER J.
Released: June 19, 2015
CITATION: H.M.Q. v. TELUS Communications Company 2015 ONSC 3964
COURT FILE NO.: M095/15
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
TELUS Communications Company
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: Transmission Data Recorder Warrant (Re), [2015] O.J. No. 2471 (S.C.J.) [^2]: I will throughout these reasons refer to the name and address of the customer as “subscriber information”. It is also sometimes referred to as “CNA”, a short form for “customer name and address”. [^3]: Telus factum, para. 42. [^4]: Oxford Dictionary of English, 2nd ed. (revised), Oxford: Clarendon Press, 2005