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Transmission Data and Subscriber Information

February 7, 2019

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.

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