Police Get Free Lunch in Tele-Mobile Co. v. Ontario
April 2nd, 2008
Lamenting the skyrocketing costs of phone bills is a common refrain of consumers from all walks of life. However, for agents of law enforcement wishing to obtain copies of phone bills (and, for that matter any other third party source of information), price is no object. In fact, in a recent decision, Tele-Mobile Co. v. Ontario, 2008 SCC 12, which considered the appropriateness of awarding cost compensation to private actors who comply with production orders, the Supreme Court declared that the police and other law enforcement agencies get a free lunch.
In 2004, the Criminal Code was amended to vest law enforcement agencies with the authority to issue a production order that could compel third parties to produce documents or data to be used in criminal investigations. Sections 487.012 to 487.017 of the Criminal Code detail the scheme governing the use of such production orders. Tele-Mobile stemmed from two production orders issued pursuant to s. 487.012, requiring Telus to produce call records related to two separate criminal investigations.
The scope of the information requested by the police in the two production orders is rather striking. The first requested all network activity on a particular cell phone number between March 10 and March 24, 2004, as well as a report setting out all cell sites and locations of the phone. The second asked for similar data for far longer period, (between August 1, 2003 and January 12, 2004).
Telus responded to the requests with two applications under 487.015 of the Criminal Code seeking exemptions from the production orders on the grounds that, absent compensation, the financial burden of compliance was unreasonable. However, in R. v. Tele-Mobile Company (Telus Mobility), 2006 ONCJ 229, Vaillancourt J. of the Ontario Court of Justice rejected Telus’ applications, finding that compliance without compensation was not itself unreasonable. He drew the interesting analogy between citizens and corporations, both of whom, he suggested, have a civic duty to assist in the enforcement of the laws of the state. For a closer consideration of the trial court decision, see Julian Ho’s post on www.TheCourt.ca, (here).
In the aftermath of the trial court’s decision, Telus made an application under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26 to appeal the matter directly to the Supreme Court.
Writing for a unanimous court, Abella J. dismissed Telus’ appeal. Drawing on host of extraneous evidence including Department of Justice policy, CRTC decisions, Hansard records, and others, she found that, in spite of the consistent urgings of Telus and other like-minded companies, Parliament had not intended the impugned sections of the Criminal Code to provide judges with the authority to identify reimbursement as a term of the production orders.
Moreover, Abella J. also appears to have been persuaded by the argument that producing documents for purposes of law enforcement was part and parcel of the civic duty of a corporation. “The conclusion that a judge cannot order compensation for compliance with a production order” she observed, “accords with what this Court affirmed as a general “moral” and “social” duty imposed on citizens.”
Cast in this light, the $662,000.00 of costs Telus is believed to have spent in complying with production orders, (which both Vaillancourt J. and Abella J. were quick to note amounted to roughly 0.058% of Telus’ annual income), was no different then a person who earns $100 000.00 per year having to incur a $58.00 loss as a result of being assigned to jury duty. Just as the burden placed on the private citizen forced to serve as a juror was not unreasonable, neither was the expense incurred by Telus in complying with production orders for the purpose of law enforcement.
In his post on Tele-Mobile, Julian Ho suggested that “if compensation is not awarded, then law enforcement agencies may unduly exploit the production process, so as to create unreasonably high costs for third-parties such as Telus in complying with all these orders.” I agree. Additionally, disavowing any requirement on the part of the police to compensate for costs associated with producing third party documents creates an incentive for them to conduct fishing expeditions in the place of restrictive, well-substantiated investigations.
[filed: Criminal justice Tele-Mobile Co. (2008)]
Hi Matthew,
A couple of points:
1) I am not sure why you consider “the scope of the information requested by the police in the two production orders is rather striking.” First of all, why do you consider call data records for one cell phone over a two week period excessive? Second, have you ever investigated a mid or high level drug trafficker? A murderer? A fraud artist? Or any kind of criminal? What investigative techniques would you use, other than those specifically provided for in the criminal code, such as production orders?
2) Don’t forget that a judge signed off on these orders. Your post doesn’t seem to mention how “striking” it is that a judge granted these production orders… it only emphasizes how “striking” it is that police officers requested information so broad in scope. There is a good reason for why the judge signed off on these PO’s. I take my hat off to members of the Toronto Police Service who conducted this first degree murder investigation.
3) Why is it that Telus can provide me, a humble subscriber, with detailed monthly billing information of all inbound and outbound callers down to the minute and second, including cell tower specific information such as whether a particular call occurred north or south of the US border… and yet it cost them $662,000.00 to provide this info to a law enforcement agency? The cost seems vastly inflated.
4) There is still a time cost to be considered for an investigation. Say I am a police officer with a forty hour work week, plus or minus a given amount of paid or unpaid overtime, vacation, etc., depending on the agency which employes me. I need to choose what to do with that time. I have to decide which files should be treated with high priority, and which should be put on the back burner, or forgotten about entirely. In my short career to date, I have written four or five production orders. I am not an expert by any means, so it probably took me longer than a lawyer would. In any event, all of the production orders I have written took significant time to prepare and execute. So I thought about each one carefully before starting, got approval from my supervisor, etc. The idea that paying for labour is the only issue that prevented me from a “fishing expedition” is a falsehood. There are other factors in play.
5) This is sort of unrelated, but have you or the other students posting to this blog had an opportunity to go on a police “ridealong” with an urban police department? I first started reading this blog to educate myself on new case law relevent to my job. I love this blog for its succinct and timely analysis of the work done by the Supreme Court. Your post was excellent in this respect. But what I notice is a lack of understanding of the realities of basic police work. Along with that ignorance there seems to be a real fear of law enforcement. The reason this concerns me is that you and your colleagues are going to be judges one day. I have been in bail hearings and trials and shaken my head at some of the questions asked by judges. I wish there was some kind of national program to educate the judiciary. Perhaps we could fly them to another city or province and they could ride around with a police officer for a day.
Anyway, this is just my two cents. Thanks for reading my comments and thanks for your work on this blog.
Dave
April 6th, 2008 at 1:40 am
Dave,
Thank you for the comment. I especially appreciate the different perspective you bring to the decision. I happen to agree with a lot of what you said, but I’ll respond to all of your comments.
(1) I confess that I have no law enforcement experience. With this in mind, I viewed the production order request not from the perspective of a law enforcement agent seeking to obtain the required grounds to make an arrest, but rather with an eye to the privacy interests of the party under surveillance. My gut reaction (from the latter perspective) was that a two week period seemed like a long period of time during which to be effectively under surveillance.
(2) I agree with you here, that if anyone is at fault for the execution of the warrant, it is not the police officers, but rather the JOP that signed off on it. As far as I know, there were no issues with respect to the manner in which the warrant was executed by the police.
(3) The $662, 000 price tag seems vastly inflated to me as well.
(4) Again, I want to reiterate my general ignorance about the mechanics of obtaining a production order from the law enforcement end. Whether or not they are time consuming to obtain, however, what is significant about the Telus decision is that it provides no incentive against the police making over-inclusive production requests.
(5) I agree with your general point here that there is a very troubling disconnect between police and the judiciary. Judges are sometimes thoroughly unaware of how law enforcement actually occurs ‘on the ground.’ I think the reverse is also true: decisions in the courts about police authority are often not communicated to the police.
Again, thanks for the comments.
April 7th, 2008 at 1:59 pm
I think the $662,000 was the “annual estimated cost to Telus for the retrieval of archived data”, rather than the cost of the particular production orders before the court.
April 7th, 2008 at 2:08 pm