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
Note:
CRIMINAL LAW: THIRD PARTY PRODUCTION
ORDERS
Tele-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."