The production of cell tower records breaches Canadians' privacy rights.

Author:Izadi, Melody

Justice Sproat of the Ontario Superior Court of Justice in R. v. Rogers Communications Partnerships [2016] O.J. No. 151 has ruled that police cannot seek the production of cellphone records of thousands of Canadians in order to pursue investigations. This means that the personal information of Canadian cellphone users cannot be in the hands of police without specific reasons. In addition, and at the request of Telus and Rogers, the Court created guidelines so that future production orders would not infringe the privacy interests of Canadian citizens. It remains to be seen what ripple effects these guidelines will have on our right to privacy.

It's quite clear that as technology continues to develop, new topical legal issues are raised in courtrooms and litigated nation-wide. Whether it is legislation or common law, the laws around gathering evidence via cell records and other technologies still remain underdeveloped, much like an apple blossom begins to bloom before it becomes a firm, crisp apple.

New legislation was passed, courtesy of the Harper government and reflects the then-government's inclination to support more power for police to search cellphones without legal roadblocks in order to gather evidence. The Protecting Canadians from Online Crime Act came into force on March 10, 2015 and gives police a shocking amount of leeway to search Canadians' cellphones and cell records.

Certainly, as our laws develop in an attempt to catch up to today's technological advances, the police have tried to take advantage of the lacunas in the law. They sought to further investigations by gathering evidence created by cellphone usage and use that evidence against accused persons. However, the police have only been given some leeway by the courts, and the right to privacy seems to (thankfully) still be championed and safeguarded by Canadian judges. For instance, in 2013 the Ontario Court of Appeal in R. v. Fearon 2013 ONCA 106 held that a search warrant is necessary to search a cellphone that is "locked" or password protected, and a search of a password protected phone as a means to arrest would be otherwise unlawful.

In R. v. Rogers Communications Partnerships, the police obtained production orders that required Rogers and Telus to produce records of all of the cellphone, tower and subscriber records within a certain area in order to further an investigation into a string of jewelry robberies. The police wanted these records so that they could...

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