CAN-TECH Newsletter/Bulletin
February 7, 2019/7 février 2019

Transmission Data and Subscriber Information

Transmission data warrants not limited to transmission data

The Newfoundland and Labrador Court of Appeal has adopted a very broad and expansive interpretation of police powers in relation to electronic data with its decision in Re: section 487.02 of the Criminal Code. Police in that case had sought a transmission data recorder (TDR) warrant under section 492.2 of the Criminal Code, a provision which was added in 2014. A TDR warrant only allows for the gathering of “transmission data”, which is defined as data that:

  1. relates to the telecommunication functions of dialling, routing, addressing or signalling;
  2. 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
  3. does not reveal the substance, meaning or purpose of the communication.

In essence, the purpose of a TDR warrant is to determine which devices communicate with which other devices, but is specifically not meant to gather information about the content of any of those communications.

The Criminal Code also contains section 487.02, the assistance order provision, which allows a judge, where some other warrant has been issued, to “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”. At a time when, for example, intercepting a telephone call would have required some physical device to have been placed on a telephone line, an assistance order would have been issued to the technician with the appropriate knowledge to install that device. It was the proper scope of section 487.02 in the context of a TDR warrant that was at issue.

In this case, the RCMP obtained a TDR warrant to determine which telephone numbers were communicating with a particular identified cell phone which was associated with an investigation. In addition, they sought a section 487.02 assistance order requiring the telecommunications service providers to also provide the RCMP with the subscriber information associated with those other telephone numbers. The Provincial Court judge to whom they applied refused to grant the order, holding that that fell outside the scope of an assistance order. The Crown sought judicial review of that decision in the Supreme Court of Newfoundland and Labrador, General Division, but that court upheld the Provincial Court decision: the judge concluded that the point of an assistance order in the context of a TDR warrant could only be to assist in obtaining transmission data, and that “subscriber information is not transmission data.”

The majority of the Newfoundland and Labrador Court of Appeal, however, granted the Crown’s appeal. They reasoned – based in part on fresh evidence they received from RCMP officers about how police use the information they obtain from TDR warrants and why the need assistance orders – that section 487.02 could be used to order the production of subscriber information. They review the principles of statutory interpretation and the history of the section, including the predecessor section which was replaced, but the essence of their reasoning is that transmission data is usually of very little use to the police by itself without subscriber information and therefore that Parliament must have intended that the police could also obtain subscriber information. In addition, where the lower courts had in effect reasoned that subscriber information was not clearly included within the definition of “transmission data”, the majority in the Court of Appeal held that it was not clearly excluded.

The dissenting judge agreed with the interpretation of the courts below and argued that the majority approach “allows for an unwarranted and uncontrollable extension of the type of information that the police would be able to obtain in the course of executing a TDRW” (para 68). He agreed that allowing police also to obtain subscriber information would make an investigation more effective, but that that was not the purpose of an assistance order.

With respect, the reasoning of the majority seems to ignore the significance of the fact that a TDR warrant is available based on the low standard of reasonable suspicion, rather than the more demanding standard of reasonable grounds to believe. They do make note of this point, observing at paras 48 to 53 that if the police were required to obtain a production order or general warrant in order to get the subscriber information, this would make things more difficult for them by requiring them to meet the higher “reasonable grounds” standard. What the reasoning of the Court of Appeal seems not to recognize is that that is exactly the point. There is meant to be a balance between the privacy interest intruded upon and the strength of justification required for intruding on it: the reasonable suspicion standard is only meant to be sufficient when the privacy interest in the information to be gathered is relatively minor. In other contexts, obtaining the name and address of a subscriber has been seen as significant enough to require the police to meet the “reasonable grounds” standard (see for example R v Spencer, 2014 SCC 43): allowing an assistance order to “tack that on” to a reasonable suspicion TDR warrant arguably violates section 8.

It seems more likely that the intended purpose of a TDR warrant is as a bridging mechanism to more intrusive investigative techniques. For example, if a particular cell phone is associated with one member of a conspiracy and, out of all the numbers in communication with that phone over a one week period, two of those numbers were in touch twenty times a day, that might well give the reasonable grounds necessary to obtain a production order for the subscriber information for those two phones. There would have been no need, however to obtain the subscriber information for all callers right from the start.

Photos of Facebook Messages Not Sufficient

Electronic evidence requires authentication

The British Columbia Court of Appeal offered guidance on the proper use of evidence from Facebook, finding that it had been improperly introduced in R v Ball. The accused had been convicted of arson, specifically of having set fire to a property of a former friend. He came to the attention of the police when his ex-girlfriend attended at an RCMP detachment to report that he had told her that he was responsible for the fire. She called up her Facebook page on a detachment computer and showed several messages from an account that she identified as belonging to the accused, and which constituted admissions to setting the fire. The officer took photographs of the computer screen with those pages on it.

At trial, those photographs were admitted into evidence, although the accused maintained that the Facebook messages were forgeries. In fact, the British Columbia Court of Appeal noted, whether the photographs were admissible depended on the portions of the Canada Evidence Act dealing with the authentication of electronic documents, but this point seemed to have occurred to no-one at the trial:

[67] Facebook posts and messages, emails and other forms of electronic communication fall within the definition of an “electronic document”.  Home computers, smartphones and other computing devices fall within the definition of a “computer system”.  Accordingly, the admissibility of Facebook messages and other electronic communications recorded or stored in a computing device is governed by the statutory framework.  As with other admissibility issues, where there is reason to question whether an electronic document meets the statutory requirements, a voir dire should be held and a reasoned determination made as to its admissibility.  This step is particularly important in the context of a jury trial.

The Court of Appeal noted that the person seeking to introduce an electronic document has the burden of proving its authenticity, based on the best evidence rule. In that regard the Act states:

31.2(1) The best evidence rule in respect of an electronic document is satisfied: (a)  on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored…

In this case, no efforts had been made to authenticate the evidence. That was particularly important given the nature of the evidence and the issues at trial. The alleged admission to lighting the fire would be hearsay, but the timestamps associated with the message would be real evidence. The evidence consisted only of photographs of the computer screen, not printouts. The only evidence of authenticity came from the ex-girlfriend, but she only addressed the content of the messages, not the time stamps or other data. Further, the only evidence about the operation of Facebook messenger came from the ex-girlfriend: however, the accused’s claim was that the messages had been tampered with, and that she was the one who had done the tampering.

The British Columbia Court of Appeal did not conclude that the evidence was not admissible, holding only that “[i]t is sufficient to say there is a realistic possibility that, properly scrutinized, the judge may have justifiably excluded or limited the evidentiary use of the photographs” (para 87). Based on that and other errors, they ordered a new trial.

Ontario lawyer disciplined for articled clerk’s use of social media

Law society tribunal found that lawyer failed to adequately supervise articled student; in part due to lack of familiarity with social media

A discipline tribunal of the Law Society of Ontario has disciplined a lawyer for professional misconduct entirely based on the use of social media and creation of websites by his articled clerk. The findings in Law Society of Ontario v. Forte were largely based on an agreed statement of facts. The lawyer, who was a sole criminal law practitioner took on his first articled student, Nadia Guo, at the end of June 2015. Within a couple of weeks, the articled student was arrested in a courthouse after an altercation with counter staff. She posted on Craigslist, Twitter and Reddit that she had been illegally arrested. She also made a number of very intemperate postings on the Criminal Lawyers’ Association listserve, got into arguments with list members and then tweeted about it. By the end of July 2015, the lawyer and the law society had received a number of complaints about the articled student’s postings.

Despite being the subject of complaints and some intervention by her principal, the articled student continued offensive postings on Twitter, including some that appeared to disclose confidential client information. A Crown attorney wrote to the lawyer, advising him that some comments posted on her Twitter account not only contained offensive language, but also referred to privileged and confidential information. The lawyer suspended her two weeks later, but in the meantime, the inappropriate online conduct continued:

[20] On December 14, 2015, Ms. Guo posted a series of tweets about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots. She also described them as having jobs that were incredibly “futile and outdated.” This incident led to a request by the Lawyer that the student apologize to the court staff at Old City Hall.

[21] On December 18, 2015, Ms. Guo then posted a lengthy apology letter on Twitter addressed to the court clerks in question. Although the letter apologized for the “poor choice of wording” used in the earlier tweets, it then repeated some of her earlier arguments about robots replacing court staff.

[22] Following the delivery of the apology, a Justice of the Peace e-mailed the Lawyer to advise that two of her clerks were “very distressed” about Ms. Guo’s conduct. She expressed concerns about the fact that the student’s tweets were unprofessional, uncalled for, and inflammatory. The Lawyer responded to this e-mail thanking the Justice of the Peace for drawing the student’s conduct to his attention, reporting that he had begun monitoring the student’s tweets, and agreeing that the posts in question were inappropriate and offensive.

[23] Following Ms. Guo’s suspension, she made private or deleted her Twitter account. However, for a period of time she continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

[24] The Lawyer finally terminated Ms. Guo’s articles on February 20, 2016.

The Tribunal related a series of interventions the lawyer made respecting the articled student’s conduct.

[26] Beginning in July, the Lawyer had many conversations with Ms. Guo to attempt to educate her about the uncivil and intemperate tone of many of her communications. He also arranged for her to meet with seven other lawyers over time, five of them women, and several of those women racialized. He instructed her on various occasions to cease her Twitter activity and to apologize to those offended by her actions. The Lawyer also responded directly to court staff, crown attorneys, defence counsel and others who had been offended by her conduct.

[27] Unfortunately, none of the Lawyer’s efforts made any real change in Ms. Guo’s behaviour. On one occasion, for example, he ordered her to take down her Twitter account, only to learn that she had opened another soon after. After he ordered her to take the second one down, he learned she had been tweeting, without his knowledge, from his firm Twitter account.

[28] The Lawyer’s unfamiliarity with social media appears to have been a significant contributing factor. He appears to have only reviewed the student’s personal Twitter account during the CLA listserve incident, through his wife’s account. He never reviewed Ms. Guo’s personal website, which contained inflammatory and inaccurate material as well as information about client cases that had been posted without his consent. He allowed Ms. Guo to create a Twitter account for his firm, but never reviewed it at any time.

Ultimately, her unprofessionalism became his misconduct as he was responsible for the supervision of his articled student. And his lack of familiarity with social media may have contributed to the situation, it was not seen as an excuse:

[40] Unfortunately, the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control Ms. Guo’s Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.

[41] Given the facts outlined above, we determined that the Lawyer failed to assume complete professional responsibility for his practice by failing to adequately supervise Ms. Guo.

The tribunal ordered a reprimand, coaching, attendance at two law society continuing legal education programs and that the lawyer pay the Society’s costs of $3500.

Cryptocurrency exchange seeks creditor protection after death of founder

Employees unable to locate or access $190 million in cryptocurrency

A number of media outlets (including the Halifax Chronicle Herald, the CBC and CNN) are reporting that Vancouver-based cryptocurrency exchange QuadrigaCX has filed for creditor protection in Nova Scotia after the death of the company’s founder, CEO and sole director. The company, it is reported, was already facing liquidity challenges when early last year CIBC froze $25.7 million of its funds that were held in the account of a third-party processor. The founder’s death, it appears, has left the remaining employees unable to locate or access $190 million of customer’s funds. Its filings in the Nova Scotia court indicate that the company owes 115,000 customers about $250 million in cash and cryptocurrency.