Who should pay for third-party criminal production orders?

Glancing through the upcoming hearings at the Supreme Court of Canada (“SCC”) in December, I cannot help but notice a criminal appeal that had, not a person’s name as the party against the crown, but instead the name of a company. The named company, though, was not charged with a crime. On December 13, the SCC will listen to oral arguments in Tele-Mobile Company (aka Telus Mobility) v Her Majesty the Queen (Ontario), et al., where the issue is whether a telecommunications service provider (TELUS) can seek compensation for the costs associated with complying with a police production order, or in the alternative, whether they can be exempted from compliance with the order.

Section 487.012 of the Criminal Code, RSC 1985, c C-46 outlines the various conditions that must be met before a production order will be granted. Of particular scrutiny in the appeal will be s. 487.012(4), which allows the order to “contain any terms and conditions that the justice or judge considers advisable in the circumstances.” It will be seen whether this provision will be broad enough to allow a judge or justice to order compensation to a third-party for compliance with the order.

In the alternative, s. 487.015 allows an exemption from the above order if “it is unreasonable to require the applicant to produce the document, data or information” (s. 487.015(4)(b)). It will be argued here 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.

The lower court (2006 ONCJ 229) ruled that neither the production provision (s. 487.012) nor the exemption provision (s. 487.015) are broad enough to give statutory authority for a judge or justice to order compensation. However, the trial judge, Vaillancourt J., went on to say that prohibitive costs may nevertheless ground an exemption if, taking into account the third-party’s business, the amount of the costs significantly impacts the overall fiscal health of the third-party.

In reaching its decision, the lower court compared this duty to the duties imposed on others in society in upholding the criminal justice system. Vaillancourt J. writes,

I do not disagree that historically the common law has recognized that citizens, both individual and corporate, owed society at large a duty to assist law enforcement in eradicating crime. The case law is replete with examples of witnesses, jurors, innocent third parties, and innocent accused having to bear significant personal costs when fulfilling their role within the criminal justice system. It is to be noted that although legislation has made some compensation and allowances available in certain circumstances there is still a real personal cost to the citizen (para 92).

But the judgment recognizes the special obligations of telecommunication service providers, and warns law enforcement agencies to refrain from abuse. Vaillancourt J. writes,

TELUS is aware that their business lends itself to being an ongoing target of production orders… Police agencies must be vigilant in their use of production orders. If they are used without regard to accumulating costs or without regard to meritorious investigations, the bottom line might very well trigger exemptions.

Unlike a witness or a juror or an innocent third party who are called upon to do their civic duty infrequently, TELUS finds itself as a repeat participant in the judicial system. I find that TELUS has acted responsibly in the past as it pertains to court orders and assisting law enforcement. It would be unfortunate that this positive history might be compromised by the ‘abuse’ of a ‘free’ service (paras 98-99).

It will be interesting to see how the SCC decides this one. From a policy perspective, it may very well be easy to put the expense of production orders on a large and profitable service provider like TELUS, but the implications of this would affect much smaller companies as well. As such, the factors of significant fiscal impact and business type as espoused by the the lower court seem like a fair method of moving forward in the interpretation of those sections of the Criminal Code.

However, the lower court judgment does not leave room for a production order to be fulfilled where it is found to be fiscally unfeasible for the party involved. This is because the exemption will attach even if the law enforcement agency is willing to compensate the third-party. As such, the SCC may broaden the scope of power under the above sections so as to provide flexibility for judges and justices to order compensation, while still putting the bulk of the burden on third-parties to comply with production orders without compensation.