R v Rogers Communications: Some Guidelines for Big Brother
In R v Rogers Communications, 2016 ONSC 70 [Rogers], Justice John Sproat of the Ontario Superior Court of Justice provided some much needed guidance to police and issuing justices when handling production orders for “tower dumps.” Sought by investigators through a court order, tower dumps occur when a telecom company is compelled to provide the names and numbers of cellphone users that have used a particular cellphone tower. So why should you care if you did not commit a crime? What are the police going to do with that information? There is a good chance that if the information is not relevant to the investigation, it will be discarded and never see the light of day. But why should police have access to so much data when they are looking only for the tiny percentage that is relevant?
Robberies in Brampton and Your Cellphone Record
On 11 April 2014, the Peel Regional Police obtained a production order in relation to a string of jewelry robberies in Brampton. The production order asked Rogers and Telus to turn over customer information from all cellphones that used certain towers in the vicinity of the stores that were robbed (Rogers, para 5). The production orders required the name, addresses, and banking information of every subscriber making or attempting to communicate through the particular towers. If both the person initiating and the person receiving the communication were Rogers (or Telus) subscribers, then the information regarding the recipient was also requested (para 6).
One need not be particularly technologically savvy to suspect that what was requested was a huge amount of information. And one need not be particularly paranoid to be made a bit uneasy the request for the banking information. Do the police now have a file of phone numbers of everyone who travelled through Brampton in 2014? And most importantly, how would the police go through all these records in solving the robbery? Telus estimated that it would need to produce the personal information of at last 9,000 subscribers, whereas Rogers estimated 34,000 (para 7). Given this, it is no surprise that the judge agreed with restricting the production order.
Justice Sproat recognized that Canadians have a reasonable expectation of privacy in the records of their cellular phone activity. Moreover, it is not tenable to reason that since only the police will be in possession of this information, it will never see the light of day (para 20). The relevant statutes support this conclusion. Section 3 of the Personal Information Protection and Electronic Documents Act, SC 2000 c 5 states that the statute’s purpose is to establish rules to “govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.” Section 492.2 of the Criminal Code, RSC 1985, c C-46 requires judicial authorization, on a standard of reasonable grounds to suspect, in order to install transmission data recorders, which further supports the conclusion that there is a reasonable expectation of privacy in this information (Rogers, para 23).
Justice Sproat also relied on the case law to demonstrate that there is a reasonable expectation of privacy. In a request to obtain a tower dump search in R v Mahmood,  OJ No 3922 [Mahmood]—also involving a jewelry story robbery in Brampton—the police simply asserted that robbers commonly use cell phones. In that case the court ruled that the tower dump warrant violated the accused’s rights under section 8 of the Charter, and that therefore the evidence should be excluded under section 24(2) of the Charter (Mahmood, para 121). Based on the statute and precedent, then, it was easy for Justice Sproat to conclude that Canadians have a reasonable expectation privacy in their phone records.
In R v Vu,  3 SCR 657, Justice Cromwell stated that section 8 of the Charter “seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement” (para 21). Moreover, an authorized search must be conducted in a reasonable manner that “ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives” (para 22). Justice Sproat pointed out that the production order included: production of information related to the personal information and location of the other party to the call, who may have been hundreds or thousand of kilometres away from the crime; production of bank and credit card information, which, if it had any relevance at all in locating an individual, could have been sought in a follow-up application; and a request for the production of data pertaining to over 40,000 individuals, when the request could have been limited to phone numbers utilized in proximity to more than one robbery (Rogers, para 42). As such, it was easy to find that this was a violation of section 8 of the Charter.
Do Telus and Rogers Have Standing to Protect Subscribers’ Personal Information?
After determining that each subscriber has a reasonable expectation of privacy, the court pointed out that each subscriber has signed a contract with Rogers and Telus that operates within the assumption that their personal information will be kept confidential (para 36). Further, as a practical matter, no individual subscriber would have an interest in litigating with the government over this issue (para 36). Rogers and Telus were thus found to have standing to assert the privacy interests of their subscribers and be contractually obligated to do so (para 38).
Guidelines to Police
But the most important part of the judgment was the guidance that the court provided to police. While acknowledging that police investigations will invariably differ based on the facts, Justice Sproat aimed to provide some guidance to issuing justices and police on how to proceed in relation to production orders. This ultimately had the effect of significantly narrowing what police can and should be asking for from telecommunications companies.
The police should include in the information request the following:
a) One – a statement or explanation that demonstrates that the officer seeking the production order is aware of the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind. …
b) Two – an explanation as to why all of the named locations or cell phone towers, and all of the requested dates and time parameters, are relevant to the investigation. …
c) Three – an explanation as to why all of the types of records sought are relevant. …
d) Four – any other details or parameters which might permit the target of the production order to conduct a narrower search and produce fewer records. …
e) Five – a request for a report based on specified data instead of a request for the underlying data itself. …
f) Six – If there is a request for the underlying data there should be a justification for that request. …
g) Seven – confirmation that the types and amounts of data that are requested can be meaningfully reviewed … (para 66 [emphasis removed]).
Justice Sproat also noted that police, not only justices, have an obligation to conduct themselves in a Charter-compliant manner, which means that it is improper for police to seek irrelevant personal information (para 48). The court, however, found it unnecessary to provide guidelines on how the obtained information should be stored. This, Justice Sproat implied, is a task better left for legislators (para 60).
Rogers is a victory for the privacy rights of Ontarians. It is helpful that police now have clearer guidelines to curb their enthusiasm for the production of personal information. And we can all sleep a bit easier knowing that it will not be as easy for our personal information to make its way to the police. More generally, this decision attests to the fact that our courts are slowly catching up to the evolution of technology and how it impacts our lives.
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