Production orders and cell towers

R. v. Rogers Communications, 2016 ONSC 70 (Ont. S.C.), per Sproat J.

[65] The police should include in the information to obtain a production 

order:

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.  – An awareness of the Charter requirements is obviously essential to ensure that production orders are focused and Charter compliant.

b) Two – an explanation as to why all of the named locations or cell towers, and all of the requested dates and time parameters, are relevant to the investigation.– This obviously flows from what is now the s. 487.014(2)(b) Criminal Code requirement that there be reasonable grounds to believe that the documents or data requested will afford evidence respecting the commission of the offence.

c) Three – an explanation as to why all of the types of records sought are relevant.- For example, the Production Orders sought bank and credit card information, and information as to name and location of the party to the telephone call or text communication who was not proximate to the robbery location.  This information was clearly irrelevant to the police investigation.

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. – For example, if the evidence indicates that a robber made a series of calls lasting less than one minute this detail might permit the target of the order to narrow the search and reduce the number of records to be produced.  If the evidence indicates that the robber only made telephone calls then there may be no grounds to request records of text messages.  (Although the use of voice recognition software may make it difficult to distinguish between a personmaking a telephone call and a person dictating a text message.)

e) Five – a request for a report based on specified data instead of a request for the underlying data itself.  – For example, in this case a report on which telephone numbers utilized towers proximate to multiple robbery locations would contain identifying information concerning only a small number of robbery suspects and not the personal information of more than 40,000 subscribers which the Production Orders sought. This would avoid the concern expressed by Mr. Hutchison that 99.9% of vast amounts of tower dump personal information relates to individuals who are not actually suspects. 

f) Six – If there is a request for the underlying data there should be a justification for that request. – In other words, there should be an explanation why the underlying data is required and why a report based on that data will not suffice.

g) Seven – confirmation that the types and amounts of data that are requested can be meaningfully reviewed. – If the previous guidelines have been followed the production order should be focused which will minimize the possibility of an order to produce unmanageable amounts of data.  This confirmation does, however, provide an additional assurance of Chartercompliance.