Bell Canada Corporate Security (Re)

Bell Canada Corporate Security (Re) Court Provincial Court Date 2023-08-01 Citation 2023 NSPC 40 Docket 2930041 Judge/Registrar/Adjudicator Atwood, Del W. (Honourable Judge) Document Type Decision Decision Content PROVINCIAL COURT OF NOVA SCOTIA Citation: Bell Canada Corporate Security (Re), 2023 NSPC 40 Date: 20230801 Docket: 2930041 Registry: Antigonish In the matter of an ex parte application for a production order relating to data in the possession of Bell Canada Corporate Security DECISION REGARDING THE ISSUANCE OF A GENERAL PRODUCTION ORDER Judge: The Honourable Judge Del W Atwood Written decision released: 2023: 1 August 2023 in Pictou, Nova Scotia Charge: Section 261.1(1)(a) of the Criminal Code of Canada Counsel: Constable Adam Merchant, RCMP, applicant NOTE: The Court deferred publication of this decision until all related proceedings were concluded. By the Court: Synopsis [1] There are no publication bans in effect in relation to this matter. [2] The applicant seeks a general production order under the provisions of § 487.014 of the Criminal Code, in order to attempt to identify the person responsible for making a threatening telephone call. The application is granted, as it is clear that the criteria for the making of an order are well satisfied. [3] However, it is necessary for the Court to provide additional commentary, given the manner in which the application was advanced. Specifically, there is an issue regarding the authority of a data custodian to refuse to comply with an order of the Court. Application history [4] This is the second application brought by the investigator in this case. [5] The first application was made two months prior to the present one. The first application was brought under the production-of-transmission-data provisions of § 487.015 of the Code. It sought to have Bell Canada Corporate Security [Bell] turn over the same data as captured in the present application: transmission data for the purpose of identifying a device or person involved in the transmission of a communication. I granted the earlier application, and issued an order [the first order]. [6] A problem arose, as an official with Bell refused to comply with the first order; he sent an email to the investigator confirming his position. It appears that the official in question was working with an outdated version of § 487.015 of the Code, and believed that the statute did not authorize the production of transmission data. Legislative history [7] It is correct that, prior to 9 March 2015, § 487.015 of the Code did not deal with the production of data; rather, it allowed records custodians to apply for exemptions from the requirement to produce data. [8] The law changed on 9 March 2015. The Protecting Canadians from Online Crime Act, SC 2014, c 31, § 20, in force 9 March 2015 in virtue of § 47 of the Act, reconstituted § 487.015 to authorize the production of transmission data. [9] There is overlap between general-production orders for documents or data under § 487.014, and production orders for transmission data under § 487.015, such that there might be situations when either type of order might work in aiding an investigation; however, there is authority for the proposition that the general-production-order provisions of § 487.014 should not be used when the data sought by police would be covered by one of the more specific production provisions, such as § 487.015—see Alberta (Attorney General) v Alberta (Provincial Court), 2015 ABQB 728. [10] Just so, here. The first order specifically compelled production of transmission data for the purpose of identifying a device or person involved in a transmission or communication, precisely the type of data covered by § 487.015. Disobedience of court orders [11] It is entirely possible that I might have missed something in granting the first order. However, that does not excuse the refusal by Bell to comply with it. [12] An order issued by the Court has the force of law. If a person or entity subject to a court order believes that the order has been issued invalidly or illegally or in excess of jurisdiction, the remedy is due process, not defiance: R v Jordan, 2016 NSPC 39 at ¶ 15. In fact, § 489.0193 of the Code provides records custodians, such as Bell, with a process to have production orders judicially reviewed. [13] Failure to comply with a production order is an offence under § 487.0198 of the Code. [14] Over the years, the Court has encountered a number of problems arising from public and private organizations exempting themselves from compulsory, court-ordered process. A case in point was a former local public-health authority that consistently refused to comply with court-issued subpoenas for the production of evidence; the grounds were said to be that the subpoenas were not in accordance with the policies of the authority. [15] This harboured belief, that an entity need not abide by a court order if it is felt that there is a good enough reason, has been persistent, burgeoning, and it must be addressed effectively by the judicial branch. [16] A good object lesson is found in R v Gunn, 1997 ABCA 35, leave to appeal refused, [1997] SCCA No 175. In that case, a lawyer believed—no doubt very sincerely—that a court had illegally issued a warrant for the arrest of his client, and sought to frustrate the arrest. The lawyer was convicted of obstruction of justice; the conviction was ultimately upheld. Disobeying court orders carries elevated legal risks. [17] As stated at the outset, the general-production order sought by the applicant is granted. However, in future, should a records custodian refuse to comply with a production order issued by a court, investigating authorities would do well to have reference to the penalty provisions of the Code rather than giving defiance of a court order a pass. JPC