Court File and Parties

COURT FILE NO.: CR-17-002740 DATE: 20190423

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – GEORGE OTTO Defendant

Counsel: Geoffrey Roy and Amanda Hauk, for the Public Prosecution Service of Canada Daniel Stein, for the Defendant

HEARD: February 11, 12, and 13, 2019

RULING RE: CONSTITUTIONALITY OF “TRANSMISSION DATA” PROVISIONS OF CRIMINAL CODE

DI LUCA J.:

[1] Dr. George Otto is charged with trafficking in fentanyl and possession of fentanyl for the purpose of trafficking. He has brought a number of pre-trial motions seeking the exclusion of various items of evidence. These Reasons address a challenge to the constitutionality of the provisions authorizing the seizure/production of prospective and historical transmission data found in ss. 492.2 and 487.016 of the Criminal Code (the “Code”).

[2] The core issue is whether the “reasonable suspicion” standard for judicial authorization found in the transmission data provisions of the Code, meets the requirements of s. 8 of the Charter.

[3] On the record before me, I conclude that the “reasonable suspicion” standard meets the requirements of s. 8 of the Charter. As such, the motion seeking a declaration of unconstitutionality is dismissed.

[4] I find that the seizure of the prospective transmission data seized under s. 492.2 in this case was lawful. [1] As discussed below, I also find that s. 487.016 is not engaged in this case as the production order was sought and issued under s. 487.014 of the Code. The lawfulness of the seizure of the data under the s. 487.014 production order, will be addressed separately in a Garofoli ruling that addresses a challenge to a number of warrants and a challenge to the manner of search.

Brief Overview of Investigation

[5] In September of 2015, the Greater Sudbury Police Service commenced an investigation into fentanyl trafficking in the Sudbury area. As the investigation developed, the York Region Police also became involved. The target of the investigation was initially Sean Holmes, who police believed was involved in trafficking fentanyl. Police obtained his cell phone records and noted contacts with ten phone numbers in the Greater Toronto Area. Police suspected these contacts were related to the fentanyl trade.

[6] On October 30, 2015, surveillance revealed that Holmes met with Liridon Imerovik at a coffee shop in Vaughan and handed him a black duffle bag. Police believed the meeting was related to the fentanyl trade.

[7] Through further investigation, police obtained Imerovik’s phone number and noted that it was one of the phone numbers in contact with Holmes. On December 9, 2015, police obtained a General Production Order under s. 487.014 for transmission data related to Imerovik’s phone for the time period between October 1, 2015 and November 27, 2015. They also obtained a transmission data recorder warrant (“TDRW”) which would monitor Imerovik’s phone for a period of 60 days starting on December 9, 2015.

[8] The transmission data obtained under the production order and TDRW provided a link between Imerovik and Dr. Otto’s cell phone. This link was used to inform grounds to obtain subsequent search warrants for Dr. Otto’s home, office and car, which were executed on March 24, 2016.

[9] On January 9, 2016, Imerovik was arrested for trafficking fentanyl after he completed a drug transaction with Holmes, exchanging 166 fentanyl patches for approximately $32,000. On arrest, Imerovik was in possession of several fentanyl prescriptions and two box tops with prescription labels attached. The prescriptions all listed Dr. Otto as the prescribing physician.

[10] The next day police arrested Holmes, Shereen El-Azarak, a pharmacist implicated in the scheme and two others.

[11] The Crown’s theory is that Holmes was purchasing fentanyl from Imerovik, who in turn was obtaining the fentanyl through El-Azarak and others. Dr. Otto is alleged to have been involved in providing false prescriptions in exchange for cash.

[12] At trial, it is anticipated that the Crown will rely on the seized transmission data to establish a link between Imerovik and Dr. Otto. The Crown will also correlate the contacts between Imerovik and Dr. Otto with contacts between Imerovik and others involved in the drug trafficking scheme, in order to establish Dr. Otto’s involvement in and knowledge of the scheme.

The Judicial Authorization in Issue

[13] On December 9, 2015, the York Region Police filed a single Information to Obtain in support of the issuance of a number of Criminal Code orders; (a) a TDRW under s. 492.2; (b) a Tracking Warrant for a Thing Usually Carried by a Person under s. 492.1(2); (c) a Production Order under s. 487.014; (d) an Assistance Order under s. 487.02; and, (e) a Sealing Order under s. 487.3.

[14] The use of a single Information to Obtain in respect of multiple orders is commonplace in complex investigations. However, one potential area of confusion or difficulty is that the legal test for obtaining the sought-after orders varies depending on the nature or type of order. For example, the TDRW is available where the police meet the “reasonable grounds to suspect” threshold. A Tracking Warrant for a Thing Usually Carried by a Person is only available where the police meet the “reasonable grounds to believe” threshold. Lastly, an Assistance Order can be issued if the police establish that issuance is “in the interests of justice.”

[15] To add to the potential confusion, the police in this case sought a general production order under s. 487.014 instead of a production order for transmission data under s. 487.016. The former uses “reasonable grounds to believe” and the latter uses “reasonable grounds to suspect.” This appears to have been done because the police sought a combined order that required production of historical transmission data, historical tracking data and subscriber information. As such, while the police could have sought historical transmission data solely on the basis of s. 487.016 using a “reasonable suspicion” standard, they opted to seek a broader production order seeking additional information that would not have been available using s. 487.016. The subscriber information, for example, could only be obtained using a general production order under s. 487.014 (relating to an IP address) or an assistance order under s. 487.02 (relating to a telephone number), and not using a transmission data production order under s. 487.016; see R. v. Telus Communications Co., 2015 ONSC 3964, H.M.Q. and Telus Communications Company, 2015 ONSC 3072 and Reference re Criminal Code, s. 487.016, 2015 ABPC 178. [2]

[16] The defence suggests that the police, perhaps, acted in error in doing so. That may or may not be. However, by doing so the police wed themselves to establishing “reasonable grounds” to obtain all the information sought. [3]

[17] While ultimately not a significant issue in these proceedings, best practices would suggest that an Information to Obtain should ideally address the grounds in relation to each specific order sought, with reference to the legal test for each order. An Information to Obtain organized in this fashion would be more readily presentable for issuance and more readily amendable for review.

The Legislation in Issue

[18] Section 492.2 of the Code allows the police to seek a warrant for transmission data based on reasonable suspicion that a crime has been or will be committed and that transmission data will assist the investigation. The section provides as follows:

Warrant for transmission data recorder

492.2 (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.

Scope of warrant

(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.

Limitation

(3) No warrant shall be issued under this section for the purpose of obtaining tracking data. [4]

Period of validity

(4) Subject to subsection (5), a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.

Definitions

(6) The following definitions apply in this section.

data means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device.

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.

[19] Section 487.016 of the Code allows police to obtain a production order for transmission data. This section provides as follows:

Production order — transmission data

487.016 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to prepare and produce a document containing transmission data that is in their possession or control when they receive the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the transmission data is in the person’s possession or control and will assist in the investigation of the offence.

Limitation

(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.

[20] The definitions of “data” and “transmission data” used in s. 492.2 of the Code is replicated in s. 487.011, which applies to productions orders obtained under s. 487.016. Section 487.016 does not contain a restriction prohibiting use of the provision to obtain tracking data. That said, s. 487.017 provides for production of historical tracking data on the same standard of “reasonable suspicion.”

[21] The current s. 492.2 and the new s. 487.016 came into effect on March 9, 2015 as part of Bill C-13, An Act to Amend the Criminal Code, The Canada Evidence Act, The Competition Act and the Mutual Legal Assistance in Criminal Matters Act. This bill was also known as the Protecting Canadians from Online Crime Act, and it reflected an attempt to modernize the investigative tools found in the Code. When the bill was introduced, the Minister of Justice explained:

Let me begin by stressing that the purpose of the legislation and investigative power amendments is not to give extensive new authority to the state to intrude into the privacy of Canadians. On the contrary, the new powers in this bill are carefully and narrowly constructed to respond to the investigative challenges posed by the advances that have occurred in technology over the past few decades and also to maintain the privacy protections and expectations of Canadians.

There is a common thread in these amendments. They all have as their primary objective providing law enforcement agencies with the tools they need in the 21st century to continue to respect their roles as protectors of the public while at the same time respecting the civil liberties of Canadians. They all require judicial authorization to carry out their duties. [5]

[22] The provisions allow police to apply for a production order to obtain historical “transmission data” relating to past communications, and also to apply for a warrant to obtain “transmission data” in real time for prospective communications. According to the government’s legislative summary, “transmission data” consists of the following:

Essentially, “transmission data” are data that indicate the origin, destination, date, time, duration, type and volume of a telecommunication (e.g. a telephone call or an Internet communication), but do not include the content of the telecommunication. This type of data is useful: for example, it may be used to trace all telecommunications service providers involved in the transmission of data in order to identify the initial telecommunications service provider and thus determine the origin of a telecommunications (new section 487.015). “Tracking Data” relate to the location of the thing of individual. [6]

[23] The Minister of Justice also explained what was meant to be captured by the phrase “transmission data.” He stated:

It was also suggested that the bill creates new warrants for police to obtain metadata using a lower threshold production order. This is also incorrect. Metadata refers, as members would know, to a large class of information that has been described as data about data. Examples of metadata include background information about an electronic document such as software, the type that it uses, its size, kilobytes, the size of characters it contains, etc. In relation to an electronic photo, it can include the number of pixels, the type of camera, and perhaps the date, the time, and the location the photo was taken. Some have suggested that metadata may contain personal information about people. It should be noted that Bill C-13 does not propose to capture this type of information according to its proposed definition of transmission data.

In fact, the definition of transmission is narrowly defined and captures only data that relates to the act of telecommunication. The definition of transmission data is the modern equivalent of phone call information, not what is actually contained in the conversation, and these proposals are meant to ensure consistent treatment of similar information. [7]

[24] Under the prior Code provisions, police could obtain a Digital or Dialled Number Recorder (“DNR”) warrant under s. 492.2. The warrant required compliance with a reasonable suspicion standard and, if granted, would permit police to use a device to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or intended to be received.

[25] The original provisions came into force in 1993, in an era where landlines were most commonly used for telephone communications. Under the original provisions, a “number recorder” was defined as “any device that can be used to record or identify the telephone number or location of the telephone number from which a call originates, or at which it is received or is intended to be received.”

[26] The information obtained through the prior DNR provisions has been described as “basic” or “minimal”, essentially revealing the phone number dialled by the user of the subject phone, or the phone number used by someone to call the subject phone as well as the time, date and duration of the call; see R. v. Fegan, 13 O.R. (3d) 88 (Ont. C.A.), at para. 18 and R. v. Mahmood, 2011 ONCA 693, at paras. 98 and 129.

[27] When the DNR is used in relation to a cell phone, the amount of information obtained is modestly broadened. In R. v. Croft, 2013 ABQB 644, the court described the information obtained as follows at paras. 9 and 10:

…the information which comes to the RCMP once a number recorder is installed in respect of a specific telephone number does not include the audio of a telephone call or the text of a text message. It does include the number of the called telephone, the number of the calling telephone, the direction of the call, the duration of the call, the date and time of the call, in the case of a cell phone the identification of the cell phone tower involved in the call, various forms of serial numbers depending on the type of telephone equipment involved, and information as to call features used in the call such as call forwarding, conference calling or voice messaging. There is also other information relating to the telephone company networking equipment which, she testified, is of no investigative interest.

The witness also testified that the RCMP obtains no information as to the identity of the person making or receiving the call through the number recorder. The information indicates whether a link between the calling telephone and the called telephone is made, but not whether any actual communication occurred.

[28] The old DNR provisions were repeatedly found to pass constitutional muster. While courts agreed that information obtained under a DNR warrant attracted a reasonable expectation of privacy, they held that the nature of the information fell outside the core of biographical data that warranted the higher constitutional protection of the “reasonable grounds to believe” standard. The courts concluded that in view of the minimally intrusive nature of the information obtained, the “reasonable grounds to suspect” standard was sufficient to satisfy constitutional concerns. In R. v. Cody, 2007 QCCA 1276, the Quebec Court of Appeal stated at para. 25:

The very fact that judicial authorization is required to obtain a DNR warrant, however, means that section 8 of the Canadian Charter is engaged. Nevertheless, the context in which such warrants are sought does not necessarily require that there be “reasonable and probable grounds” for their issuance. It is an exaggeration to assimilate the information of a telephone number and the duration that a telephone is off the hook with anything that can reasonably be considered so “private” so as to require the highest standard of protection of section 8 of the Canadian Charter, especially when the information does not indicate which person is using the telephone, whether there was a conversation, and if so, with whom the conversation is taking place, as well as its details.

[29] The constitutional analysis in Cody was adopted in Croft and in R. v. Nicholson, 2015 BCSC 2429, but not in R. v. Nguyen, 2004 BCSC 76. See also Mahmood at paras. 98, 113-114 and 130-131.

The Scope of Data Captured Using the TDRW and Production Order in this Case

[30] Under the new Code provisions, the scope and nature of the data that can be captured has arguably been broadened. This is particularly so where the data produced or seized relates to internet communications as opposed to more traditional telephone communications.

[31] As a starting point to the constitutional analysis, it is important to keep in mind exactly what was obtained using the warrants and production orders in this case. Again, this task is complicated by the fact that the police obtained one order authorizing multiple searches and productions, beyond what would otherwise have been provided using only a TDRW and a transmission data production order.

[32] The applicant notes that paragraph 7 of the December 9, 2015 authorization, which deals with the Production Order, required production of transmission data, tracking data and basic subscriber information. In this paragraph, “transmission data” is defined to include dialling, routing, addressing or signalling data, including but not limited to: all network activity records, all incoming and outgoing call detail records, all incoming and outgoing text messages records, any International Mobile Equipment Identity (IMEI) data and any Subscriber Identity Module (SIM) data” relating to the use of the targeted smartphones.

[33] Paragraph 5 of the same order, which deals with the TDRW, does not contain a definition of “transmission data.”

[34] The Crown suggests that implicit in the authorization is that “transmission data” does not need to be defined in relation to the TDRW, as there is a statutory definition in place. In relation to the production order, the Crown notes that the police applied for a general production order and, as such, were not bound by the arguably more restrictive definition of “transmission data” found in s. 487.016. That said, the term “transmission data” is defined in the same manner under s. 487.011 (which applies to both general production orders and transmission data production orders).

[35] The defence argues that by defining the production order request as including “all network activity records,” the order arguably went beyond the scope of definition found in the Code. In my view, this appears to be an overstatement. While the phrase “all network activity records” is potentially very broad, that phrase must be read in context. The sentence starts with “Transmission data includes dialling, routing, addressing or signalling data, including but not limited to: all network activity records…” The phrase “all network activity records” is related to “dialling, routing, addressing or signalling data.” As such, the entire sentence, while cumbersome, is not as broad as the defence suggests. In any event, as the Crown points out, if the warrant authorized a seizure of data that went beyond the scope of the definition of “transmission data” contained in the Code provisions, the warrant itself would be subject to review. That would not be a problem with the constitutionality of the provisions. Rather, it would be a problem with the warrant as issued.

[36] In this case, the TDRW and Production Orders resulted in the preparation of charts setting out the results. The charts were prepared by Wind Mobile. They formed part of the disclosure to the defence and ultimately part of the record on this motion. The charts were provided electronically as part of the respondent’s application record. These charts include the following columns and related data headings:

• Session number (a chronological numbering of the recorded sessions for ease of reference)
• Start Date/Time
• Stop Time
• Duration
• Day of the Week
• Direction of Communication
• Associated DN (i.e. the other number)
• Location (provided as a result of the associated tracking warrant)
• Dialled digits
• In Digits (number dialled for incoming call)
• Post Cut Through Digits (left blank as data not authorized under warrant)
• Target DN (phone number that was the target of the warrant)

[37] A different version of the chart, included at Tab 6 of the Application Record, also includes subscriber names associated with the dialled numbers, as well as cell tower location data. This additional information was provided as a result of the other orders included in the global order, and not simply the TDRW or the transmission data production order.

[38] The applicant has also provided a chart that demonstrates how the Crown intends to use the information obtained at trial. The chart, located at Tab 5 of the Application Record, contains a record of communications between the applicant and one of the patients alleged to be involved in the scheme. The chart reveals the frequency, duration and location of communications, and will be used by the Crown to support culpable inferences against the applicant by showing a degree of connectivity between him and others involved in the scheme.

[39] The data that was obtained in this case is very similar to the data that would have been obtained using the original DNR provisions of the Code. In this regard, the data obtained does not shed light on the potential breadth of the new provisions. The actual data obtained is minimally intrusive on Mr. Otto’s privacy rights, and there can be no suggestion that the reasonable suspicion standard failed to provide adequate protection in terms of the specific seizures and productions in this case.

[40] While the applicant acknowledges this fact, he nonetheless argues that the new definition of “transmission data” included in the Code is very broad and covers all possible data used by a computer or smartphone during communication, and therefore it could result in a seizure of data that engages more significant privacy concerns.

[41] In support of this argument, the applicant cites the submissions of the National Criminal Justice Section of the Canadian Bar Association, made when Parliamentary committees were studying the new legislation, which suggest that the broad definition of “transmission data” could include the IP address of the originating computer, the type of computer or smartphone, the communications protocol being used, the IP address or domain name of the server or computer being communicated with and whether the transmission was completed. [8] In its submissions, the Canadian Bar Association took the position that “transmission data” engaged sufficient privacy interests warranting a “reasonable grounds” standard for judicial authorization.

[42] The applicant also cites the submissions made by the Office of the Privacy Commissioner of Canada to the Senate Committee on Legal and Constitutional Affairs, which also took the position that the “transmission data” could potentially reveal information which warranted a “reasonable grounds” standard for judicial authorization.

[43] Lastly, the applicant has provided a report prepared by the Technology Analysis Branch of the Office of the Privacy Commissioner of Canada dated May 2013. This report provides a “state of the possible”, in terms of what police could be able to discover about a person without prior judicial authorization. In brief, the report notes that in certain cases police can lawfully obtain a person’s name, address, telephone number, email address, IP address and local service provider identifier, without the use of prior judicial authorization. This information can then be used to discover a significant amount of personal information about a person’s actions, habits and interests.

[44] The Crown raises an objection to the use that these submissions and report can be put in to assess the constitutionality of the impugned provisions. The Crown fairly notes that the submissions and report are neither evidence nor the proper subject of judicial notice. The facts contained therein have not been tested by cross-examination and they are based on hearsay, impression and study, which may lack in scientific rigour.

[45] I am cognizant of the need to have a proper factual basis in support of a constitutional challenge. While the submissions and report raise valid questions about the scope of the “transmission data” provisions, I am not in a position to place much, if any weight on them, in assessing the validity of the provisions. The submissions of the Canadian Bar Association and the Privacy Commissioner are the very submissions they made to Parliament when it was considering Bill C-13. They are simply submissions, and I must accept that Parliament in its wisdom considered those submissions and nonetheless passed the legislation that is now before me. While I do not know whether the Privacy Commissioner’s Report was placed before Parliament, it is difficult to give the report much evidentiary weight as its contents have not been tested and, more importantly, purport to be based on tests and demonstrations that may or may not have any acceptable validity, see R. v. Levkovic, 2010 ONCA 830, at paras. 28-37, R. v. Spence, 2005 SCC 71 and R. v. Malmo-Levine, 2003 SCC 74.

Assessing the Claim of Unconstitutionality

[46] I turn next to assessing the claim of unconstitutionality. The core complaint advanced is that the definition of “transmission data” now used in the Code, permits the seizure and/or production of information that can reveal the core of personal biographical information and, as such, requires the protection the “reasonable grounds” standard.

[47] To be clear, there is no issue that the information obtainable using these provisions attracts a reasonable expectation of privacy. Indeed, this is implicitly recognized through the requirement of prior judicial authorization, albeit on the lesser standard of “reasonable suspicion.” Rather, the issue is whether a normative assessment of the privacy issues at stake mandates nothing less than a “reasonable grounds” standard.

[48] Section 8 of the Charter seeks to protect the biographical core of personal information from improper dissemination to the state. Individuals have a reasonable expectation of privacy over information that tends to reveal intimate details of their lifestyle and their personal choices: see R. v. Plant, [1993] 3 S.C.R. 281 and R. v. Spencer, 2014 SCC 14. As the Supreme Court notes in Spencer at para. 15, the protection of privacy is “a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society.” See also R. v. Tessling, 2004 SCC 67, and R. v. Dyment, [1988] 2 S.C.R. 417.

[49] In most cases, information that is protected by a reasonable expectation of privacy is only available to the state through prior judicial authorization. The starting point for prior judicial authorization is the “reasonable grounds” standard: see Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.

[50] However, privacy is not a “one size fits all” proposition. The courts have recognized that in cases where the privacy interests engaged are close to but not at the biographical core of personal information, a less rigorous standard is capable of providing adequate constitutional protection. Indeed, the lesser standard of “reasonable suspicion” has been approved in a number of such cases, see for example: dog sniff searches in R. v. A.M., 2008 SCC 19, R. v. Kang-Brown, 2008 SCC 18 and R. v. Chehil, 2013 SCC 49, border searches in R. v. Monney, [1999] 1 S.C.R. 652 and R. v. Simmons, [1988] 2 S.C.R. 495, tracking devices on a car under R. v. Wise, [1992] 1 S.C.R. 527 and DNR searches under the old provisions of s. 492.2 of the Code as discussed above.

[51] Determining the privacy interests at play is a key step in the analysis. In this regard, I note that this case is about informational privacy in the digital age, which is a topic that has been under constant scrutiny by the courts and particularly the Supreme Court of Canada in recent years; see R. v. Mills, 2019 SCC 22, R. v. Jarvis, 2019 SCC 10, R. v. Reeves, 2018 SCC 56, R. v. Marakah, 2017 SCC 59, R. v. Jones, 2017 SCC 60, R. v. Spencer, supra, R. v. Cole, 2012 SCC 53, R. v. Vu, 2013 SCC 60, R. v. Fearon, 2014 SCC 77, R. v. Telus Communications, 2013 SCC 16 and R. v. Gomboc, 2010 SCC 55. See also R. v. Balendra, 2019 ONCA 68, R. v. Ward, 2012 ONCA 660, R. v. Orlandis-Habsburgo, 2017 ONCA 649 and R. v. Beairsto, 2018 ABCA 118.

[52] The one thing that is clear from all these cases is that the digital age has had a profound effect on how we conceptualize and understand privacy. Privacy in the digital age is composed of three overlapping concepts: secrecy, control and anonymity; see R. v. Spencer at paras. 46-47. Privacy is also a normative and not merely descriptive concept. We must not only ask what our current state of privacy is, we must also ask what we reasonably want it to be in order to protect individual freedom and foster our free and democratic society: see R. v. Ward, at paras. 81-89.

[53] The digital age has also transformed how people communicate in their daily lives. In R. v. Marakah, McLachlin C.J.C. writing for the majority of the Supreme Court noted at para. 28:

…This interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. The phrase “chat room” to describe an Internet site through which people communicate is not merely a metaphor. In a similar way, text messaging can create private chat rooms between individuals. Although electronic, these rooms are the place of the search. This suggests that there would be a reasonable expectation of privacy in a text message conversation.

[54] In discussing the confluence of privacy issues and the move to electronic communication, McLachlin C.J.C. noted:

Individuals may even have an acute privacy interest in the fact of their electronic communications. As Marshall McLuhan observed at the dawn of the technological era, “the medium is the message”: M. McLuhan, Understanding Media: The Extensions of Man (1964), at p. 7. The medium of text messaging broadcasts a wealth of personal information capable of revealing personal and core biographical information about the participants in the conversation.

The personal nature of the information that can be derived from text messages is linked to the private nature of texting. People may be inclined to discuss personal matters in electronic conversations precisely because they understand that they are private. The receipt of the information is confined to the people to whom the text message is sent. Service providers are contracted to confidentiality. Apart from possible police interception - which cannot be considered for the purpose of determining a reasonable expectation of privacy (see Patrick, at para. 14; Wong, at p. 47; R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 43-44) - no one else knows about the message or its contents.

Indeed, it is difficult to think of a type of conversation or communication that is capable of promising more privacy than text messaging. There is no more discreet form of correspondence. Participants need not be in the same physical place; in fact, they almost never are. It is, as this Court unanimously accepted in TELUS, a “private communication” as that term is defined in s. 183 of the Criminal Code, R.S.C. 1985, c. C-46, namely, “[a] telecommunication…that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it”: see TELUS, at para. 12, per Abella J., at para. 67, per Moldaver J., and at para. 135, per Cromwell J.

One can even text privately in plain sight. A wife has no way of knowing that, when her husband appears to be catching up on emails, he is in fact conversing by text message with a paramour. A father does not know whom or what his daughter is texting at the dinner table. Electronic conversations can allow people to communicate details about their activities, their relationships, and even their identities that they would never reveal to the world at large, and to enjoy portable privacy in doing so.

Electronic conversations, in sum, are capable of revealing a great deal of personal information. Preservation of a “zone of privacy” in which personal information is safe from state intrusion is the very purpose of s. 8 of the Charter: see Patrick, at para. 77, per Abella J. As the foregoing examples illustrate, this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions - and not just the contents of a particular cell phone at a particular point in time - to remain private.

[55] While the Court in Marakah was examining whether a person would have a reasonable expectation of privacy in a text message sent to another user, the comments about the changing nature of privacy interests in the digital age are instructive in this case as well. There can be no doubt that the courts must be vigilant to guard against unwarranted state intrusions in the informational sphere of privacy. The courts must also be cognizant of the rapidly developing nature of the technology, the change in personal communication habits and precise nature of the privacy interests engaged. These features taken together emphasize the importance of the normative aspect of the analysis.

[56] Against this backdrop of principles, I turn to assessing what the subject matter of the search and/or production authorized by the impugned provisions entails. In this regard it is useful to assess the subject nature of the search, the nature of the privacy interest potentially compromised and the reasonable expectation of privacy engaged. In doing so, I am cognizant that I am not attempting to assess whether a reasonable expectation of privacy attaches to the items obtained by police in this case. It does. The issue is whether the Code provisions that authorize the search and production of transmission data on the basis of “reasonable suspicion”, properly reflect the privacy interests engaged.

[57] Starting with the subject nature of the search, I bear in mind that the subject matter of the search must be defined functionally and the analysis is aimed at determining “what the police are really after.”

[58] The Crown argues that the information obtained in this case was for the purpose of simply determining who the targets of the transmission data production order and warrant were communicating with by telephone, including the dates, times, direction of call and number dialled for each contact. This was a step early in the police investigation, as the police were trying to determine who the target’s other criminal associates might be. The data produced permitted police to narrow and focus their investigation, but it did not unveil a treasure trove of information about the targets or their contacts. At trial, the data will be used to support inferences based on the numbers of contacts between certain parties, and it will be correlated with subscriber name information and tower location tracking data. This latter information was obtained using other provisions of the Code and not through the impugned transmission provisions. Moreover, the latter data was obtained using prior judicial authorization based on applicable standards that have not been challenged.

[59] The applicant appears to accept that in this case the scope of the transmission data obtained does not raise any particular concerns, beyond the fact that when it is viewed in concert with the subscriber name information and tracking data it provides a basis upon which inferences can be drawn.

[60] On the facts of this case, I find that this is not a scenario where a seemingly inconsequential piece of information can be used to draw a connection to a vast body of information that would otherwise be unavailable. That was the scenario in Ward and Spencer where the police simply wanted a customer’s name that was linked to an IP address, but what they really wanted was the treasure trove of data that would be revealed once that link was made. Here the police simply wanted to see who the targets were communicating with on a regular basis. This type of information has not historically attracted a high expectation of privacy.

[61] I turn next to assessing the nature of the privacy interest that could potentially be compromised. In this regard, the applicant’s central position is that the definition of “transmission data” is very broad and potentially captures metadata or “data about data.”

[62] According to the applicant, “transmission data” may include the IP address of a computer, the type of computer program that is being used, the communications protocol that is being used, as well as details about the server or computer being communicated with. This information can reveal core biographical details about the user of the technology. The applicant’s concerns may be well placed. Indeed, they echo the concerns raised by several commentators; see Adam S. Boni and Angela Ruffo, “Bill C-13: Laying the Foundation for a Modern Canadian Surveillance State” in For the Defence, The Criminal Lawyers’ Association Newsletter, Vol. 36, No. 1, July 2015 and Jill Presser, “Following Data Trails: Bill C-13 and the State’s Expanded Power of Search” in For the Defence, The Criminal Lawyers’ Association Newsletter, Vol. 36, No. 1, July 2015.

[63] I agree that the scope of the data that is obtainable must be assessed through a modern and informed privacy lens. A smartphone has functional capabilities that extend far beyond a traditional analog phone. Users now carry in their pockets a powerful electronic communication device and information system that is connected not only to digital telecommunication networks but also the internet. State access to a person’s cell phone raises significant privacy concerns that must be carefully assessed and balanced.

[64] I also agree that there is a risk that the data obtained using these provisions might extend beyond the minimally intrusive search that occurred in this case. In this regard, I am mindful of the concerns raised by the Privacy Commissioner of Canada on the potential breadth of the transmission data definition. However, I have no evidence before me demonstrating the potential breadth. This is problematic, as I am not in a position to assess whether the concerns raised by the Privacy Commissioner and commentators will, or even can, come to fruition: see R. v. Tessling, at para. 55 and R. v. A.M., at para. 40.

[65] In the absence of any such evidence I return to the definition of “transmission data”, which for ease of reference I repeat here:

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.

[66] This definition must be read as a whole and conjunctively. Transmission data must “relate to” the “telecommunication function of dialling, routing, addressing or signalling.” The transmission data is also restricted to data that is transmitted to identify, activate or configure the device for the purpose of communication, or is data that is generated during the communication and identifies the type, duration, direction, date et cetera, of the communication. These two subsections of the definition must be read together.

[67] Lastly, the transmission data must also not reveal the substance, meaning or purpose of the communication. The final restriction is of key importance. The police are not permitted to use the provisions to obtain the contents of the communications, or as the definition states “the substance, meaning or purpose of the communication.” The content of any private communication will almost invariably attract a high degree of privacy requiring the protection of a “reasonable grounds” standard.

[68] The definition of “transmission data” is also buttressed by the TDRW provisions that prohibit use of the provisions to obtain prospective tracking data. In this regard, “tracking data” is defined as “data that relates to the location of a transaction, individual or thing.” This too is an important limiting feature which appears to address the applicant’s concern that transmission data may contain geolocation data. [9]

[69] In addition, this limitation is intended to work in concert with other provisions of the Code, which permit tracking warrants for things such as cars to be obtained on the basis of reasonable suspicion, but requires that tracking warrants for things ordinarily carried by a person can only be obtained on the basis of reasonable grounds; see s. 492.1 of the Code. [10] On this issue, the Crown notes that while cell tower location was provided in this case, it was as a result of the tracking warrant and general production order. Additionally, the Crown notes that while in certain circumstances, the impugned provisions could be used to obtain a “Tower Dump” for a specific cell tower location, this would not amount to tracking data as that term is defined.

[70] The applicant suggests that the data and metadata that can be collected under the impugned provisions can reveal the intimate details of a person’s lifestyle and choices. As the applicant states in his factum at para. 40:

The very fact of an electronic communication or telephone call as well as their patterns can reveal private and sensitive information about a person, such as political affiliation, religious practices, and intimate associations. It says whether a person contacts a suicide prevention hotline, their elected official, a fringe political party, an abortion clinic, or a centre for the treatment of sexual diseases. It tells how often people are in contact with each other, down to their most minute attempt at contact that may not be answered. It provides their geolocation through cell phone tower. It reveals the kind of messaging program that was used. It even tells the police what a person’s Internet Protocol address is, which can be linked to Internet use itself: sites and pages visited, which in turn reveals a whole host of private choices.

[71] Additionally, the applicant notes that patterns revealed by the data obtained can also give rise to strong and reliable inferences that a person is engaged in a certain type of activity, as discussed in R. v. Gomboc, supra, at paras. 38, 81 and 119 and R. v. Orlandis-Habsburgo, supra, at para. 75. The aggregate collection of data and metadata can, according to the applicant, “intensify the sensitivity of the information obtained.”

[72] In response, the Crown notes that the hypotheticals raised by the defence above do not involve the content of the communication being revealed. To use the example of the abortion clinic, the Crown argues that while the TDRW might reveal that an abortion clinic was called on a number of occasions, it would not reveal what the purpose of the call was. There could be any number of reasons for the call.

[73] On this issue I note that examples citing the inferences that arise from telephone contact with a certain entity, such as a political party or an abortion clinic, are equally applicable to the prior DNR provisions. This type of data, and the inferences that flow from it, have been found to be adequately protected by a “reasonable suspicion” standard.

[74] In terms of access to an IP address, the Crown agrees that a TDRW can reveal an IP address. However, the Crown notes that I have no evidence before me as to how an IP address would be assigned in relation to a particular type of communication device such a cell phone or type of cell phone, nor do I have any evidence about how an IP address would be captured and reported using a TDRW. Moreover, the Crown notes that an IP address alone does not trigger an expectation of privacy; see R. v. Nguyen, 2017 ONSC 1341. An expectation of privacy only arises when the IP address is linked to a particular subscriber, and the process for obtaining subscriber information from an internet service provider requires prior judicial authorization; see R. v. Ward, supra, and R. v. Spencer, supra. [11] In this case, the police used a general production order under s. 487.014 based on “reasonable grounds” for this purpose. The combination of the need for judicial authorization to obtain a subscriber name for an IP address, coupled with the need for judicial authorization for a TDRW or production order that may reveal an IP address, provides adequate constitutional protection.

[75] The Crown also agrees that the TDRW can be used to obtain information about the type of device and communication platform that is used when a user engages in internet communication. The Crown acknowledges that some information can be gleaned from this type of information. For example, the fact that a user used a communication platform such as Instagram, might suggest that the user is of a certain age or demographic. However, the Crown questions whether this is the type of information that reveals core biographical data.

[76] I agree with the applicant that the nature of a communication platform can give rise to certain inferences about the user. However, I am not satisfied that this is the type of information that reveals core biographical data. Moreover, to the extent that this information engages some privacy concerns, access to the information is subject to prior judicial authorization on a reasonable suspicion standard. My conclusion might well be different if the Crown’s position was that this information attracted no reasonable expectation of privacy.

[77] On the whole, when I look at the definition of “transmission data” that is contained in the Code, I come to the conclusion that the range of data that is authorized is not unlimited. It is restricted to a limited subset of data, which on its face relates to the mechanics of communication as opposed to the substance. While I accept that there is no clear line between the mechanics and the substance of electronic communication, as captured by McLuhan’s caution that sometimes the “medium is the message”, the gray zone between the two is protected by the lower standard of judicial authorization. This is not a scenario where the police are getting access to this information without having to meet any standard.

[78] To be clear, I accept that there is a possibility that the transmission data obtained in future cases may give rise to constitutional concerns. However, at this stage, I am left guessing as to what types of data could possibly be seized using the provisions and what that data would reveal. If I had evidence on this issue I would be in a position to assess the exact scope of the potential intrusion of privacy permitted by the provisions, and as such determine on the basis of that expanded record whether the “reasonable suspicion” standard provides a sufficient safeguard.

[79] I also note that there may well be a debate as to whether certain types of data fall within the definition of “transmission data” set out above. That debate would need to be informed by evidence and submissions, and might well result in a determination that a particular search falls outside the scope of the provisions but the provisions themselves are not unconstitutional. Again, that is also not before me, as the data seized here was well within the definition of the section. However, I would note that the interpretation of the definition would be an exercise that would be informed by s. 8 of the Charter. In other words, in order to maintain the constitutionality of the sections, the definition of transmission data would be given a restrictive meaning.

[80] The scope of the data obtained in this case certainly gives rise to a reasonable expectation of privacy. However, I am satisfied that the “reasonable suspicion” standard in the impugned sections provides sufficient constitutional protection. While I recognize the potential validity of the concerns raised by the applicant, I am not in a position to determine how realistic these concerns are based on the evidentiary record before me. It may be that on a different record it can be demonstrated that the Code provisions can be used in a manner that reveals core biographical information warranting a higher constitutional standard of protection.

[81] On this record, however, the provisions of ss. 492.2 and 487.016 of the Code do not violate section of the Charter.

[82] In view of my findings, there is no need to address s. 1 of the Charter.

[83] The application is dismissed.

Justice J. Di Luca

Released: April 23, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GEORGE OTTO Defendant RULING RE: CONSTITUTIONALITY OF “TRANSMISSION DATA’ PROVISIONS OF CRIMINAL CODE Justice J. Di Luca

Released: April 23, 2019

Footnotes

[1] The defence fairly concedes that the police had “reasonable suspicion” to obtain the transmission data.

[2] There is no clear appellate authority at this time suggesting that a warrant is required for subscriber information in relation to a cell phone, see R. v. Boutros, 2018 ONCA 375, at paras. 28-30.

[3] If I were to find that the police fell shy of reasonable grounds in relation to the transmission data that could otherwise have been obtained under s. 487.016, there is no issue that the reasonable suspicion standard has been met. While this would result in a breach of s. 8 of the Charter, the seriousness of the breach would be attenuated for the purposes of admissibility of the transmission data evidence obtained from the production order, although that evidence would nonetheless be excised from the subsequently prepared ITO’s on the Garofoli review of the later warrants; see R. v. Mahmood, 2011 ONCA 693, at para. 136 and R. v. Jodoin, 2018 ONCA 638.

[4] Prospective tracking data can be obtained under s. 492.1 of the Code. This section uses both a “reasonable suspicion” and a “reasonable grounds” standard, depending on whether the item tracked is a “thing” like a vehicle or a ‘thing that is usually carried or worn by a person” like a cell phone.

[5] Minister of Justice Peter McKay, House of Common Debates, (Hansard), 27 November 2013, p. 1437-1438. See also Minister of Justice, 1 May 2014, speaking before the Standing Committee on Justice and Human Rights, p. 2.

[6] Legislative Summary, Bill C-13, Julia Nichol and Dominique Valiquet, Legal and Social Affairs Division, Parliamentary Information and Research Service, August 28, 2014, at pp. 12-13.

[7] Minister of Justice Peter McKay, Standing Committee on Justice and Human Rights, Thursday, May 1, 2014, at p. 5.

[8] Submissions of the Canadian Bar Association, Bill C-13, Protecting Canadians from Online Crime Act, May 2014, at pp. 22-23.

[9] The transmission data production order provisions of s. 487.016 of the Code do not include a restriction on obtaining “tracking data.” However, a production order for historic tracking data is available on the basis of a reasonable suspicion standard even if it relates to a telephone; see s. 487.017 of the Code.

[10] I leave for another day the issue as to whether the production of historical tracking data relating to a cell phone, which can be obtained on the basis of “reasonable suspicion”, raises any constitutional concerns when compared with the requirement for “reasonable grounds” in relation to prospective cell phone tracking data. In the United States, the Supreme Court has not permitted a distinction between the two, see: Carpenter v. U.S., 138 S.Ct. 2206 (2018).

[11] I note on this issue that obtaining subscriber information in relation to a cell phone number may only require an assistance order. Where the cell phone is using the internet for communication, there may be an issue about the propriety of obtaining subscriber information through an assistance order, but that is not an issue that arises in this case.