Subscriber Information, Re, 2015 ABPC 178

• Judge: Henderson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 15, 2015
• Citations: 2015 ABPC 178;[2015] A.R. TBEd. AU.096

Subscriber Information, Re, [2015] A.R. TBEd. AU.096

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. AU.096

In The Matter Of an Ex Parte application for a Production Order for transmission data pursuant to section 487.016 of the Criminal Code

In The Matter Of an Ex Parte Application for a Production Order for tracking data pursuant to s. 487.017 of the Criminal Code

In The Matter Of an Ex Parte Application for an Order prohibiting access pursuant to s. 487.3 of the Criminal Code

(EPS File No. 15-1225; 2015 ABPC 178)

Indexed As: Subscriber Information, Re

Alberta Provincial Court

Henderson, P.C.J.

August 10, 2015.

Summary:

The Edmonton Police Service (the EPS) was investigating the death of a man. As part of the investigation, a police officer swore an information to obtain, seeking a production order. The production order, if granted in its current form would require the telecommunications company (the Telecom) to produce (i) subscriber information for the target phone; (ii) all subscriber information in the Telecom's possession for those telephones in communication with the target phone; (iii) transmission data under s. 487.016 of the Criminal Code consisting of "Detailed cellular telephone records for incoming and outgoing calls, incoming and outgoing numbers for SMS (text messages), including billable and non-billable records" in relation to the target phone; and (iv) tracking data under to s. 487.017 of the Code consisting of "cellular telephone locations" in relation to the target phone. The application raised the following issues: "1. Can Subscriber Information in relation to cell phones be voluntarily produced to investigating police agencies by telecommunication companies? 2. Can Subscriber Information in relation to cell phones be properly included within the definition of 'Transmission Data' and 'Tracking Data' so that a Production Order made pursuant to s. 487.016 or s. 487.017 can compel the disclosure of such information to an investigating police agency? 3. If Subscriber Information is not included within the definition of either 'Transmission Data' or 'Tracking Data', can conditions be imposed in the Production Order pursuant to s. 487.019 which would then require the Telecom to disclose Subscriber Information to police?

The Alberta Provincial Court stated that with respect to the first issue, telecommunication companies could voluntarily provide police agencies with information within their control pursuant to s. 487.0195 of the Code where the disclosure was "not prohibited in law". The court could not dictate how a telecommunications company would conduct itself in relation to voluntary disclosure. Therefore, the EPS's position on the first issue, even if correct, did not resolve the issue. With respect to the second issue, the subscriber information in relation to cell phones could not be properly included within the definitions of "Transmission Data" or "Tracking Data", and access to that information could not be obtained through a production order made under either s. 487.016 or s. 487.017. With respect to the third issue, s. 487.019 could not be expanded to include the ordering of additional disclosure which was not previously authorized through one of the production order provisions. The court therefore declined to order the disclosure of subscriber information in conjunction with a production order for either Transmission Data or Tracking Data. As for the fourth issue, no records were being sought via s. 487.016 or s. 487.017. What was being sought was the data that related to the transmissions and tracking in relation to the target phone. The EPS could obtain subscriber information under the general production order provisions in s. 487.014. An application under that section had to meet the higher standard of "reasonable grounds to believe" as opposed to "reasonable grounds to suspect" which applied to production orders for Transmission Data and Tracking Data.

Editor's Note: The court directed that this judgment be released for publication as it contained no identifying information.

Criminal Law - Topic 3012

Special powers - Third party production orders - When available - See paragraphs 5 to 55.

Words and Phrases

Tracking Data - The Alberta Provincial Court interpreted the definition of this phrase as found in s. 487.011 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 16 to 41.

Words and Phrases

Transmission Data - The Alberta Provincial Court interpreted the definition of this phrase as found in s. 487.011 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 16 to 41.

Counsel:

D. Lynass, for the Edmonton Police Service.

This application was heard on July 15, 2015, by Henderson, P.C.J., of the Alberta Provincial Court, who delivered the following judgment at Edmonton, Alberta, on August 10, 2015.