Justice Sproat of the Ontario Superior Court of Justice in R. v. Rogers Communications Partnerships  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.
Every time we use our cellphones, it’s as if we’re leaving a technological fingerprint that is frozen in time and can be uncovered if necessary. 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 identify every individual who used a cellphone near the jewelry store at the time in question. In order to comply with the orders, Telus advised the Court that it would be required to disclose the personal information of at least 9,000 customers. Detective Douglas Cole of the York Regional Police Service testified that these records were invaluable because they could reveal the names of all individuals accessing cell towers close to the crime scenes.
But Justice Sproat recognized the sensitivity of the information at stake. The private information that is created and stored using cellular phones should not be accessed freely by the state, because, as his Honour held:
“common sense indicates that Canadians have a reasonable expectation of privacy in the records of their cellular phone activity. Whether and when someone chooses to contact a divorce lawyer, a suicide prevention hotline, a business competitor or a rehabilitation clinic obviously implicates privacy concerns. The location of a person at a particular time also raises privacy concerns. Was the person at the Blue Jays game instead of at work?”
Justice Sproat held that, not only do Rogers and Telus have legal standing to assert the privacy interests of their clients (us), but that the information we disclose to them ought to be kept private. Justice Sproat held that, not only do Rogers and Telus have legal standing to assert the privacy interests of their clients (us), but that the information we disclose to them ought to be kept private. He found that the overly broad production orders requested by the police infringed Section 8 of the Charter of Rights and Freedoms:
“I appreciate that cellphone data is not right up there with Wikileaks and Ashley Madison in terms of information likely to be hacked and published. It remains that it is information Canadians certainly regard as private. The law supports this conclusion.”
What’s significant to note is how the law has been forced to respond to a new wave of breaches created by the developments in technology, and the influx of evidentiary links that can be made using this technology. Every time we use our cellphones, it’s as if we’re leaving a technological fingerprint that is frozen in time and can be uncovered if necessary. But how the police are able to obtain that data and when, is still a matter for our courts to decide. And so far, our courts seem to decide in line with our Charter right to privacy.