In a split decision, the Newfoundland and Labrador Court of Appeal has ruled that an assistance order attached to a Transmission Data Recorder (TDR) warrant can order a telecommunications service provider (TSP) to give the police subscriber information related to the numbers recorded.
By Mike Novakowski
In Re: section 487.02 of the Criminal Code, 2019 NLCA 6, a police officer involved in a serious drug crime investigation swore an Information to Obtain (ITO) a TDR warrant under s. 492.2(1) of the Criminal Code. A TDR warrant authorizes the police to obtain transmission data through a TDR when the police have, on reasonable suspicion, that “an offence has been or will be committed [ … ] and that transmission data will assist in the investigation of the offence.”
A TDR captures the transmission data in “real time” so that suspected crime can be investigated as it is being committed or soon thereafter. In this case, the police were seeking information on unknown telephone communications with an identified mobile phone number. Since a TDR warrant would only capture the numerical digits that were communicating with the identified mobile phone number and not the names and addresses (subscriber information) associated with the unknown telephone numbers, the officer also swore an ITO to obtain an assistance order under s. 487.02, requiring telecommunications service providers (TSPs) to provide the police with subscriber information associated with the telephone numbers that were communicating with the identified mobile phone once those telephone numbers were captured.
Although a Newfoundland and Labrador Provincial Court telecommunications service providert judge granted the s. 492.2 TDR warrant, he refused to grant the s. 487.02 assistance order because he concluded that he did not have jurisdiction to grant an assistance order in conjunction with a TDR warrant. In his view, it was outside the scope of s. 487.02.
The Crown applied for certiorari before the Newfoundland and Labrador Supreme Court to quash the provincial court judge’s decision and mandamus to compel him (or another judge) to reconsider the application on a proper jurisdictional basis. The Supreme Court judge, however, denied the Crown’s application.
“The powers to police granted under s. 492.2 of the Code are limited to obtaining that which falls within the definition of ‘transmission data,’” the Supreme Court judge said. “Subscriber information is not transmission data.”
He refused to expand on the interpretation of the definition of “transmission data” to allow the police to access subscriber information through the use of an assistance order. In his view, any assistance order could only be used for the purpose of assisting in fulfilling the objective of obtaining transmission data as defined under s. 492.2, and not for the purpose of obtaining subscriber information. The Crown’s application for certiorari and mandamus was dismissed.
The Crown then appealed the Supreme Court judge’s decision to the Newfoundland and Labrador Court of Appeal, arguing that he erred in finding the assistance order sought was not reasonably required to give effect to the issued TDR warrant.
In the Crown’s opinion, an assistance order under s. 487.02 was available to require TSPs to provide the subscriber information associated with particular telephone numbers captured by the lawful use of a TDR under a 492.2 warrant. Subscriber information from TSPs is necessary to “give effect to” issued TDR warrants.
Amicus curiae, appointed to oppose the Crown’s position, submitted that interpreting transmission data to include subscriber information would broaden the scope of s. 492.2 warrants to go beyond what parliament intended.
Assistance Order & Subscriber Information
Justice Hoegg, speaking for the majority, concluded that the modern principle of statutory interpretation supported the position that s. “487.02 assistance orders for subscriber information are ‘reasonably required to give effect to’ section 492.2 TDR warrants and are therefore available to require [TSPs] to provide the subscriber information associated with lawfully captured telephone numbers pursuant to the lawful execution of a section 492.2 TDR warrant.”
In so interpreting the Criminal Code provisions, Hoegg recognized legislated police powers to investigate crime needed to be balanced against the privacy interests of individuals. She found:
In the result, it is my view that parliament’s purpose of providing police with the power to fight crime with real time information by enacting the 2014 amendments to the Code is realized by enabling police to obtain assistance orders to require [TSPs] to reveal the subscriber information associated with the lawfully captured telephone numbers through the use of a TDR warrant, so as to give meaning to the captured data and thereby give effect to the purpose of obtaining a TDR warrant.
Finally, to the extent that the privacy rights of callers can be said to be affected by this interpretation, I say that parliament has considered this point, and “rationally” determined, that its objective in enacting section 492.2 is substantially important to society’s well-being and sufficiently important to warrant limiting, “proportionally” certain rights and freedoms. [reference omitted, paras. 60-61]
The majority ruled that the provincial court had jurisdiction to grant the assistance order, requiring TSPs to reveal the subscriber information associated with telephone numbers lawfully captured under a lawful execution of a TDR warrant. The matter was remitted back to provincial court for a determination of whether an assistance order was appropriate on the specific facts of this case.
Justice Green, in dissent, disagreed with the majority that the phrase “to give effect to” in s. 487.02 (relating to assistance orders) authorized the obtaining of subscriber information, as applied to the operation of a TDR warrant granted under s. 492.02.
In Green’s view, an interpretation that facilitated the police investigation would enable information to be obtained that went beyond the scope of the information that was available under the warrant itself. He noted that an assistance order was not a stand-alone provision authorizing the obtaining of information. Rather, an assistance order is dependent upon another authorization, order or warrant and is designed to “assist.”
An assistance order cannot, by its operation, extend the authorization of the warrant. If information is not within the scope of the TDR warrant, then an assistance order cannot be used to obtain it. Otherwise, the reach of the TDR warrant would be extended beyond that which it authorizes the police to collect.
“The logical result flowing from the statutory structural relationship of the assistance order to the TDR [warrant], together with the ordinary dictionary meaning of the key words in section 487.02 and their use in other contexts, points to the scope of the assistance order being limited to making the operationalization of the warrant effective,’” Green said. “It does not extend to providing assistance to the police investigation generally or to make it more meaningful or efficacious outside of the provision of the information allowed to be accessed by the underlying warrant.”
Green would dismiss the Crown appeal and uphold the provincial court judge’s refusal to issue an assistance order to provide customer name and address information in conjunction with the issuance of a transmission data recorder warrant.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.