Police don't have to pay when they seek third-party information, says Supreme Court

Friday, March 28, 2008


olice don't have to pay for information such as phone or bank records when making the request to third parties, the Supreme Court said Friday.

The court said that Parliament, in drafting the 2004 Criminal Code amendment, didn't include language or procedural mechanisms to allow judges to order compensation.


The case arose after Telus Mobility was ordered to produce phone records for police in two Ontario investigations  a murder case and drug probe. The requests, called production orders, are similar to search warrants.

Telus asked for an exemption from the requests, saying it should be compensated for the cost of retrieving the archived records.

Lawyers for the B.C.-based company argued because it is repeatedly called on to assist with investigations, it could be compared to people compensated regularly within the justice system, such as expert witnesses.

The court said Telus hadn't shown the cost, estimated to be $662,000, was unreasonable. It would compare to a person who earned $100,000 per year having to spend $58 to comply with jury duty, said the ruling.

The court also noted that Telus had argued for an exemption provision when the legislation was being drafted.

"Parliament's decision not to include an express right of compensation in the scheme is given added significance when understood in light of this history," said the ruling.

The high court said the only recourse in situations where the costs would be unreasonable is for a judge to partially or fully exempt the company from the order.

With files from the Canadian Press




-Mobile Co. v. Ontario (Ont. C.J., September 20, 2006)(31644)

"Amendments to the Criminal Code in 2004 introduced a new investigative tool for law enforcement agencies:  a production order that would compel third parties to produce documents or data for use in criminal investigations.  Two production orders required Telus to produce call data records.  Telus applied for exemptions from the orders on the grounds that the burden of compliance would be unreasonable without compensation due to the cost of retrieving the archived data.  The Ontario Court of Justice dismissed the application for exemptions.  Telus appealed directly to the Supreme Court, pursuant to s. 40(1) of the Supreme Court Act , arguing that the broad wording in s. 487.012(4) of the Criminal Code permitting a judge to add terms and conditions, allowed for the inclusion of a condition of the production order directing payment of reasonable costs of compliance."

The Supreme Court of Canada (9:0) dismissed the appeal.

Justice Abella wrote for the Court as follows (at pp. 15, 23, 30-31, 34):

"The outcome of this case depends on statutory interpretation.  The legislation makes no reference to compensation...

A review of the history preceding the creation of the production order scheme is significant in discerning what the legislature's intention was in connection with compensation for compliance.  That history shows that the question of whether compensation should be paid to telecommunications service providers for the costs of compliance with court orders has been part of an ongoing conversation between these providers and the government for some time.

...While it cannot be said that legislative silence is necessarily determinative of legislative intention, in this case the silence is Parliament's answer to the consistent urging of Telus and other affected businesses and organizations that there be express language in the legislation to ensure that businesses can be reimbursed for the reasonable costs of complying with evidence-gathering orders.  I see the legislative history as reflecting Parliament's intention that compensation not be paid for compliance with production orders.

...In the absence of a specific provision permitting the recovery of costs in the production order scheme, therefore, and in light of the legislative history, the ex parte procedural mechanisms set out in the legislation, and the principle that compensation is not ordinarily recoverable in criminal matters (Foster, at para. 56), I agree with Vaillancourt J. that s. 487.012(4) and (5) cannot be interpreted so broadly as to permit a judge to order compensation for compliance with production orders.

I accept Telus' concern that because of the nature of its business, it will necessarily be the object of repeated production orders but, as an American court observed in connection with banks, another entity from whom requests for information are routinely sought, such requests are neither unanticipated nor aberrational:

Any further expenses incurred in connection with this investigation and examination of these records, such as the salary of employees that may be necessarily assigned to this project, are expenses to be borne by the bank.  . . . They are reasonably incident to the bank's normal operations, and they are reasonable expenses that the bank can be and should be prepared to sustain when it opens and operates as a bank, knowing full well that some of its depositors will from time to time get investigated by the Internal Revenue Service.

(U.S. v. Jones, 351 F. Supp. 132 (M.D. Ala. 1972 ), per Johnson C.J., at p. 134)

The object of an unreasonable production order is not without remedy.  It lies in an application for an exemption pursuant to s. 487.015...

In essence, the financial consequences must be so burdensome that it would be unreasonable in the circumstances to expect compliance.  This, I readily acknowledge, is a somewhat tautological explanation, but I see no purpose in offering alternative definitions for a term so well known and understood as having a fact-specific compass.  What is reasonable will be informed by a variety of factors, including the breadth of the order being sought, the size and economic viability of the object of the order, and the extent of the order's financial impact on the party from whom production is sought.  Where the party is a repeated target of production orders, the cumulative impact of multiple orders may also be relevant."