2023 NSPC 40, 2023 NSPC 40

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It appears that the official in question was working with an outdated version of § 487.015 of the Code , and believed that the statute did not authorize the production of transmission data.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