Sproat J. of the Superior Court of Justice has issued a very important decision for organizations that find themselves subject to a search warrant or production order seeking personal information in their records about third parties.
On January 14th, 2016, in R. v. Rogers Communications,
Sproat J. of the Superior Court of Justice issued a very important
decision for organizations that find themselves subject to a search
warrant or production order seeking personal information in their
records about third parties. The Court found that an organization
in this situation has standing — and potentially a duty
— to challenge the order if it constitutes an undue
interference with the privacy interests of the third parties. The
decision underscores the importance of obtaining legal advice
before responding to such a request, to assist in determining
whether the order should be challenged. The decision is
particularly important for financial institutions, health care
institutions and telecommunications companies who are routinely
subject to orders compelling production of personal information
regarding customers, patients and subscribers, respectively.
Rogers and Telus were subject to a "tower dump"
production order. Mobile phones access cellular networks via
antennas mounted on towers, typically by accessing the closest
tower. Each tower serves a geographical area ranging from a 10-25
km radius around the tower in rural areas to 2 km around the tower
in urban areas. A record is created whenever a telephone attempts
or completes a phone call, text message or email, which among other
information, identifies the particular tower through which the
phone connected to the network.
In the context of an investigation into jewelry store robberies,
the Peel Regional Police served Rogers and Telus with production
orders requiring cell phone records for all phones activated,
transmitting or receiving data through certain specified towers
(presumably over a defined period of time). The orders required the
name and address of every subscriber making or attempting a
communication through a specified tower, as well as billing
information, which may include bank or credit card information.
Telus estimated that it would be required to disclose the personal
information of 9,000 subscribers. Rogers estimated that it would be
required to conduct 378 different searches and retrieve
approximately 200,000 records relating to 34,000 subscribers. The
orders did not specify any means by which the Police would
safeguard the information, nor did they restrict the purposes for
which the Police could use the information.
Rogers and Telus challenged the production orders as overbroad,
and thus a breach of their subscribers' reasonable expectation
of privacy, guaranteed under section 8 of the Charter of Rights
and Freedoms. Specifically, section 8 requires that the
state's law enforcement activities be minimally intrusive upon
the privacy interests of individual citizens, and Rogers and Telus
argued that the disclosure of personal information that the
production orders required went well beyond what was reasonably
necessary to investigate the crimes that had been committed.
Significantly, Sproat J. found that Rogers and Telus have
standing to assert the privacy interests of their subscribers.
Furthermore, he found that they had a contractual obligation to do
so, in view of their promise to keep subscribers' personal
information confidential in their subscriber agreements. Also, as a
practical matter, Sproat J. found that individual subscribers would
be unlikely to bring such claims forward. Having found that Rogers
and Telus had standing, Sproat J. went on to find that the
production orders were overbroad in violation of section 8. In
addition, the Court issued a series of guidelines for police
seeking "tower dump" production orders in the future, and
for issuing justices reviewing these applications.
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