Police Get Free Lunch in Tele-Mobile Co. v. Ontario

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.