Alberta (Attorney General) v Provincial Court of Alberta, 2015 ABQB 728

Court of Queen ’ s Bench of Alberta Citation: Alberta (Attorney General) v Provincial Court of Alberta, 2015 ABQB 728 Date: 20151123 Docket: 150961605X1 Registry: Edmonton Between: IN THE MATTER OF a Refusal by the Honourable Judge L. Malin of the Provincial Court of Alberta on May 11, 2015 At Edmonton, Alberta, to exercise his jurisdiction and issue a Production Order pursuant to

Section 487.01(2) of the Criminal Code (Identifier No. – Police File 14-028776). AND IN THE MATTER OF an Application for an Order in the Nature of Certiorari and Mandamus and Judicial Review pursuant to the Alberta Rules of Court and the Criminal Code . _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C.

Read _______________________________________________________ [ 1 ] A provincial court judge denied the applications of an Edmonton Police Services (“EPS”) police detective, involved in a fraud investigation, who sought what was effectively a production order on three different occasions in order to obtain certain information from a financial institution respecting accounts into which monies had been deposited. The Provincial Court judge refused each of the applications.

The Attorney General of Alberta then brought an application for certiorari and mandamus to quash the decisions of the provincial court judge and to compel him to issue a production order for all of the items sought. Preliminary Issues: [ 2 ] Two preliminary issues must be considered before I deal with the application on its merits. I . Does the Respondent Provincial Court Judge have standing to argue in this application? [ 3 ] The learned Provincial Court judge is named as a party to this application for an order in the nature of certiorari and

mandamus . However, he is not a party in the traditional sense of the word, having been named firstly, in order to obtain the record – the provincial court file: Brewer v Fraser Milner Casgrain LLP , 2008 ABCA 160 at para 23-26 , 432 AR 188. That he is named as a party is not a statement for or against any substantive rights or standing he may have. [ 4 ] I begin by questioning why the Provincial Court judge was named personally as a party to this action.

It is true that he was the particular judge who made the decisions in question and I am told by counsel that he was named personally because historically that was the style of cause in the ancient writs of certiorari or mandamus . That may be so. However, it seems to me that it is the Provincial Court of Alberta and not the particular judge, who has the obligation to return the record as they are ‘the tribunal’ from whom the record is requested. That being so, why is it necessary to name the particular judge?

There is a convention that where an application is made to a particular judge and it is refused, it is improper to approach another judge. That also may be so. However, that should not also require that the particular judge be named. In my view, to permit a party to name a Provincial Court judge, or any other judge, personally in a matter such as this, sets an uncomfortable and unnecessary precedent and is to be discouraged unless specific circumstances require it. [ 5 ] Counsel for the Provincial Court appeared on this application for the named judge.

He argued that either the Provincial Court of Alberta or the named judge specifically, should have full standing to argue the merits of the case. His argument was that Ontario (Energy Board) v Ontario Power Generation Inc , 2015 SCC 44 , changes the law in respect to what part a statutory tribunal may take in an application for judicial review of its decision, and that this case fully supports his participation here. [ 6 ] I disagree. [ 7 ] In my view, the argument proceeds on a wrong premise. The Provincial Court is not an administrative tribunal. Rather it is a court of record.

The Provincial Court Act , RSA 2000, c P-31, s 2(3) makes this clear. [ 8 ] That it is not an administrative tribunal is also made clear statutorily in

section 10 (

b) of the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3. This statute regulates authorities entitled to exercise statutory powers in Alberta, specifically including statutory administrative tribunals. However,

section 10(

b) of that Act clearly establishes that the Provincial Court of Alberta is not a “decision maker” as this term is used in the legislation. The relevant provision reads as follows: (b) “decision maker” means an individual appointed or a body established by or under

an Act of Alberta to decide matters in accordance with the authority given under that Act, but does not include (

i) The Provincial Court of Alberta or a judge of that Court ... [ 9 ] Given that the Provincial Court is not an administrative tribunal, it is my view that Ontario (Energy Board) has no applicability to the present case. [ 10 ] However, if I am wrong, and if the principles of administrative law do apply to provincial court judges, and if the Ontario (Energy Board) decision is, therefore, applicable, I would not exercise my discretion to permit the Provincial Court to have standing in the case at bar. [ 11 ] In Ontario (Energy Board) , Rothstein, J speaking for the majority, clarified that concerns expressed in numerous previous decisions about a tribunal’s participation on review of its own decision should not be interpreted as establishing an outright ban.

The correct approach is for the reviewing court to use a discretionary approach in considering whether and to what extent the tribunal whose decision is under review should be permitted to participate. [ 12 ] At para 59, the Court set out a number of factors which could be helpful in informing the reviewing court’s exercise of that discretion:

(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant [the] tribunal standing.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised.

Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. [ 13 ] None of these factors leads to the conclusion that full standing and participation by the Provincial Court should be permitted here. [ 14 ] While it is true that if the Provincial Court does not oppose, the application will otherwise be unopposed, this is not, in and of itself, objectionable in this case. [ 15 ] Many, if not most administrative tribunals whose decisions are subject to judicial review, are statutory boards operating under particular legislative mandates and under particular administrative schemes in narrow areas of practice.

As such, they develop considerable expertise in their particular area. That was certainly the case with the Ontario Energy Board. One of the main reasons for giving status on judicial review to these types of administrative tribunals is to ensure that the reviewing court is fully aware of the statutory provisions governing them, their structure, their processes and the legal and factual realities in the specialized field in which they work. [ 16 ] In this case, the tribunal whose decision is under review is a court, composed of members of the judiciary. What is being reviewed is that court’s

interpretation of certain provisions of the Criminal Code of Canada .

Interpretation of statutes generally, and of

the Criminal Code in particular, is not a field in which the Provincial Court has any special expertise beyond that of judges in othercourts. This court also has a good understanding of the structure of the Provincial Court, its procedures and the legal and statutory realityin which it operates.

This reviewing court has the necessary knowledge and expertise to consider the issue without the necessity ofhaving the Provincial Court appear in opposition. [17] Because of this, there is no necessity to have legal representation by the Provincial Court of Alberta in order to have a fullyinformed adjudication of the issues and a just outcome. [18] Even if it were necessary to have someone opposed to the application in order to ensure a just outcome, this could beaccomplished by this Court’s appointment of an amicus curiae. [19] Further, and in respect to the third factor outlined by Rothstein, J in Ontario (Energy Board) the Provincial Court’s mainpurpose is to adjudicate individual conflicts between two adversarial parties.

This role sets it apart from statutory tribunals whose rolemay be policy-making, regulatory or investigative. Where the main purpose of a tribunal is to adjudicate individual conflicts, theimportance of fairness, real and perceived, weighs more heavily against giving the tribunal any more than limited standing. [20] Here counsel for the Provincial Court argued that the Provincial Court judge’s role was not adjudicative but, instead, served aregulatory role in the public interest. I disagree. The role of a judge is, by definition, adjudicative.

A judge may need to interpret thelaw in order to carry out this role and may need to apply the law to the facts he finds, but the role of a judge is no less adjudicative when,as were the applications before this judge, the application is made ex parte or is otherwise unopposed. Nor is it any less adjudicativewhere, as here, a judge refuses an order. [21] There is no issue here respecting the provision of the record. It has been provided.

Nor, notwithstanding that certiorari issought, is there any real issue respecting the jurisdiction of the Provincial Court to hear applications for search warrants or productionorders. Consequently, there is no need for the Provincial Court of Alberta to have standing on the basis that it must speak to itsjurisdiction. Further, the matter at issue itself, or similar matters will undoubtedly come before the Provincial Court of Alberta again.

Therefore, there is a real danger of perceived unfairness if they are permitted standing. [22] That said, I am grateful to counsel for the Provincial Court for the submissions he has made, and invited him to remain in thecourtroom on a watching brief in these proceedings; and to reapply to intervene in these proceedings should he desire to do so. II.

Does the Attorney General have standing to bring the application? [23] Although I have decided that the Provincial Court does not have standing in this proceeding, Crown Counsel agreed that Icould have reference to the materials filed so as to ensure that the issues raised in this case were fully explored. [24] In his written materials, Counsel for the Provincial Court argued that the Attorney General of Alberta has no standing to bringthis application.

He contends that the Attorney General has no standing because she was not directly affected by the decision to declinethe applications, and because rule 833 of the Alberta Rules of Court, Alta Reg 390/1968,

Part 60 (“Old Rules”) permits applications to bemade only in specific circumstances, none of which apply here. [25] In my view, the Attorney General of Alberta has standing and may bring this application. [26] Firstly, I disagree that rule 833 of the Old Rules is inapplicable. The current Court of Queen’s Bench Criminal ProceedingRules, Division 2, Rule 9, provides that the “Rules Pursuant to

Section 424 of the Criminal Code with Respect to Mandamus, Certiorari,Habeas Corpus and Prohibition in

Part 60 of the Alberta Rules of Court, Alta Reg 390/1968 apply to an application for an extraordinaryremedy.” In effect, rules 825 to 838 of the Old Rules were not repealed in 2010 with the civil rules, and remain in force. [27] Rule 833 of the Old Rules provides that “[n]otwithstanding Rules 826 to 831, the court on ex parte application by the Crownmay quash a conviction, order, warrant or inquisition.” [28] Counsel for the Provincial Court argued that the judge’s refusal to grant an application for a production order was not an“order” in that it did not make a final determination respecting whether the EPS detective who applied for the order could obtain it. [29] I do not agree.

Indisputably, if the judge had granted the application, a production order would ensue.

Significantly, sections487.014(2) and (3) and 487.018(1) - (5) clearly indicate that what the issuing judge grants under those sections is an “order.” It isillogical to assert that a decision of the same judge, refusing to grant the production order, pursuant to those sections of the CriminalCode, would not also be an “order.” [30] Counsel for the Provincial Court argued that a search warrant and a production order are similar investigative tools and citedJohnston v McDougall (1910), (NS SC), 17 CCC 58, 1910 CarswellNS 148 at para 5, as authority that a searchwarrant is not an order.

That case expressly stated, “the extension of the word “order” to a search warrant is forcing the statute too far.” [31] However, here, the Provincial Court judge was not dealing with a search warrant but with an application for a “productionorder.” The relevant provisions of the Criminal Code engaged in this application explicitly require that a “production order” as aninvestigative tool be issued as an “order.”

Section 487.014 (3) requires that “[t]he order is to be in Form 5.005”; while

section 487.018(4) demands that “[t]he order is to be in Form 5.008.” [32] Further the case law supports the conclusion that a refusal to grant an application is an order. In Canadian Imperial Bank ofCommerce v Bury (1979), (AB KB), 11 Alta LR (2d) 93 at para 9-10, 103 DLR (3d) 560 (Alta QB) (QL), StevensonJ (as he then was) defined the term “order”: 9 Williston & Rolls, The Law of Civil Procedure (1970), vol. 2, pp. 1020-21, refer to authorities that distinguish between judgments andorders. One of the references is to Loring v. Illsley (1850), 1 Cal. 24, and the following quotation from that case is included:

"What then is the distinction between an order and a final judgment?...

The former is a decision made during the progress of the cause,either prior or subsequent to final judgment settling some point of practice or some question collateral to the main issue presented by thepleadings and necessary to be disposed of before such issue can be decided upon by the Court, or necessary to be determined in carryingthe execution into effect". 10 The authors say that where the controversy between the parties is determined it is a judgment and every other decision is an order.[Emphasis added]. [33] Stevenson J’s statement supports the conclusion that the judge’s decision not to grant a production order in this circumstanceis an “order.” [34] Thus, unlike a search warrant, a “production order” is an order.

Consequently, the Attorney General or the Crown maychallenge the refusal to grant her application for a production order by either filing “[a] notice of motion for an order in the nature ofcertiorari” (under rule 830 of the Old Rules), or by making an ex parte application that seeks to quash the decision (under rule 833 of theOld Rules). [35] Even if I am wrong, and in the circumstances of this case, a refusal to make an order is not, in itself, an order, in my view, theAttorney General still has standing to bring this application.

The Attorney General is responsible for administering justice and, inparticular, has carriage of all aspects of criminal prosecutions. It is evident, as a result, that the Attorney General has an interest in theinterpretation of the Criminal Code. Rule 3.17 of the Alberta Rules of Court, Alta Reg 124/2010 [New Rules], specifically provides thatthe Attorney General of Alberta has the right to be heard on an Originating Application for judicial review. Although this rule is found inthe civil New Rules, there is no doubt that it applies in applications made pursuant to

Part 60 of the Old Rules as well. Rule 825 of theOld Rules specifies that the rules in civil cases mutatis mutandis, apply in all matters not specifically provided for in

Part 60. [36] In Canada (Attorney General) v Pattison, 1980 ABCA 236, 1 CCC (3d) 314, our Court of Appeal held that the AttorneyGeneral had status to bring an application for certiorari and mandamus in respect of the declining of jurisdiction by a Provincial Courtjudge. Counsel for the Provincial Court distinguished this case on the basis that in Pattison, the issue was whether a particular provisionof the Criminal Code was ultra vires. I do not see that there is any real distinction between an issue of vires and one of

interpretation of aprovision of the Criminal Code, such as we have in the present case. [37] I consider that Pattison is on point and binding upon me and will follow it. [38] If I am wrong, and if the Attorney General must seek leave to be permitted to bring the present application, as argued bycounsel for the Provincial Court, then I grant the application. Counsel for the Provincial Court did not oppose this, although he arguedthat a reference would be preferable.

Availability of Certiorari and Standard of Review: [39] Before considering the substantive issue, I must also determine whether the decision made by the Provincial Court Judge isreviewable by way of certiorari and, if so, the standard of review. [40] In the present case, the Provincial Court judge ruled that the applicable Criminal Code provisions do not provide the authorityto grant in one application what the police detective was seeking and determined that s 487.014 of the Criminal Code should beconstrued narrowly.

Whether or not he misconstrued what the enabling statute permitted him to do, is a jurisdictional questionreviewable on an application for certiorari: R v Dubois, (SCC), [1986] 1 SCR 366, 25 CCC (3d) 221. [41] I move now to the question of standard of review.

Notwithstanding my conclusion that the Provincial Court judge did nothave standing in this matter, permission was granted to counsel for the Provincial Court as amicus curiae to make representations to thisCourt on the issue of the standard of review. [42] Counsel for the Provincial Court argued that the applicable standard was one of reasonableness because the question shouldbe characterized as a question of mixed fact and law. [43] The question for review is whether, in making his decision to refuse to grant the requested order, the Provincial Court judgeproperly interpreted and applied the relevant provisions of the Criminal Code.

Questions of statutory

interpretation are questions of lawand reviewable on a standard of correctness: R v Feddossenko, 2014 ABCA 314 at para 2, 584 AR 90. The Substantive Issue: [44] In order to understand the substantive issue, it is first necessary to set out the factual background in which it arose. Background Facts: [45] This application arose in the course of an investigation by EPS concerning approximately 15 complainants in the Edmontonarea, who between late February and late April 2014, received telephone calls similar in form from individuals who identified themselvesin various ways.

Some complainants received telephone calls from someone identifying himself as an employee of Canada RevenueAgency. Others received telephone calls from someone identifying himself as an enforcement officer from the Canadian SecurityIntelligence Service or from Immigration Canada. [46] The calls were made from a number of different telephone numbers; in each case they had out of province area codes. [47] The calls had a similar theme and the complainants had similar characteristics. The complainants were told that they hadviolated some law.

In some cases, they were told they were in violation of an immigration law and were required to pay fines in order toavoid immediate deportation; others were told they owed taxes and faced arrest or imprisonment if they did not immediately pay the

taxes owed. In each case, the complainants were instructed to make the payments by purchase of pre-paid PayPower Reload packs. These are apparently akin to a gift card. They can be purchased at various retail outlets and loaded with funds of various amounts at time of purchase. Each pack has a ten -digit number located on the back of the card, obscured by a coating, which is scratched off after purchase to reveal the number. Someone with access to the number can then use it to electronically load funds onto a Pay Power prepaid Visa card.

These Visa cards can also be purchased at retail outlets and once purchased can be activated by calling a specific 1-800 number.

Once activated the Visa cards can then be used to make purchases, transfer money or make automated teller machine withdrawals. [ 48 ] The complainants were often particularly vulnerable to such a scheme – new immigrants or individuals who otherwise lacked an understanding of how government agencies in Canada would normally request payments. [ 49 ] Many of the complainants purchased the PayPower Reload packs as they were instructed to do by the individual on the phone, often with cash taken from the complainants’ bank accounts. [ 50 ] The individual on the phone then told the complainants to scratch off the coating and to provide the revealed number to the person on the phone.

Many of the complainants did so and lost money as a result. [ 51 ] The investigating officers determined that Blackhawk Network, located in the United States of America, was the distributor of the PayPower Reload packs and the PayPower prepaid Visa cards used in the fraudulent transactions.

The investigating officers contacted Blackhawk Network who advised that the PayPower Visa accounts into which the money from the complainants had been deposited were in Canada, under the management of their agent, All Trans Financial Services Credit Union Ltd. (“All Trans”) located in Ontario. [ 52 ] Initially Detective Banga, one of the investigating officers, made application to the Provincial Court judge for a search warrant to obtain information about the accounts.

This application was rejected on the basis that Detective Banga should have sought a production order. [ 53 ] On April 16, 2015, Detective Banga made a second application, this one for a production order under s 487.014 of the Criminal Code s seeking the following information: a. The account numbers into which the proceeds of the PayPower Reload packs were advanced; b. Client profiles (the information such as name, address, telephone number, date of birth, and employment information) provided by the account holder when the account was opened) for these accounts; c.

Deposit account histories or summaries for these accounts. [ 54 ] On April 17, 2015, the Provincial Court judge refused this second application because he concluded that most of the information should have been requested under s 487.018 of the Criminal Code .

Additionally the judge concluded that the application was missing a necessary requirement that the affiant of the information to obtain (“ITO”) must state that All Trans, itself, was not under investigation for the alleged offences. [ 55 ] On May 7, 2015, Detective Banga made another attempt to seek production of information relating to the PayPower Visa accounts. This application included certain information he had received from a crown prosecutor about why he thought that s 487.014 and not s 487.018 was the appropriate

section under which to make the application. [ 56 ] On May 11, 2015 the judge ruled that only account numbers and the deposit account histories or summaries were producible under s 487.014. He held that the police would first have to obtain the account numbers into which proceeds were advanced. They must then use that information to seek a separate order under s 487.018 for the name of the person whose account number is identified, the type of the account, the date upon which the account was opened or closed, the birthdate of the named person, their current address, and any previous address.

It was his view that the request for the account holder’s telephone number(s), employment information and identification provided when the account was opened went beyond the list of financial data available under s 487.018 and may be sought only under s 487.014. [ 57 ] On June 25, 2015, the Crown brought an ex parte application to this Court for certiorari and mandamus to quash the judge’s finding and to compel him to issue a production order for all of the items sought.

The order was granted but subsequently set aside by consent order because the Provincial Court judge had not been served with the application. [ 58 ] This application is a renewal of the earlier application. [ 59 ] The provisions of the Criminal Code here at issue are part of amendments that came into force after proclamation of Bill C-13 on March 9, 2015. [ 60 ] Before implementation of Bill C-13, general production orders for documents and data were sought under s 487.012 of the Criminal Code .

Section 487.013 provided for issuance of production orders relating to specific types of information from financial institutions. Under that section, account numbers for a person named in the order, or the name of a person whose account number was specified in the order could be produced provided the police had reasonable grounds to believe that an offence had been committed, and that the information would assist in the investigation of the offence. [ 61 ] Bill C-13 made a number of changes. Only two of these changes are relevant for the purposes of this application.

The first is to s 487.014 which now reads as follows: 487.014(1) Subject to sections 487.015 to 487.018 [ emphasis added ] on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they

receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.

(2) Conditions for making order – Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004that there are reasonable grounds to believe that (

a) an offence has been or will be committed under this or any other Act of Parliament, and (

b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence. [62] The second relevant change is to add s 487.018, which reads as follows: 487.018(1) On ex parte application made by a peace officer or public officer, a justice or judge may order a financial institution asdefined in

section 2 of the Bank Act, or a person or entity referred to in

section 5 of the Proceeds of Crime (Money Laundering) andTerrorist Financing Act, to prepare and produce a document setting out the following data that is in their possession or control when theyreceive the order. (

a) either the account number of a person named in the order or the name of a person whose account number is specified in the order; (

b) the type of account; (

c) the status of the account; and (

d) the date on which it was opened or closed

(2) Identification of person – For the purpose of confirming the identity of a person who is named or whose account number is specifiedin the order, the order may also require the institution, person or entity to prepare and produce a document setting out the following datathat is in their possession or control: (

a) the date of birth of a person who is named or whose account number is specified in the order; (

b) that person’s current address; and (

c) any previous addresses of that person.

(3) Conditions for making order – Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004that there are reasonable grounds to suspect that (

a) an offence has been or will be committed under this or any other Act of Parliament; and (

b) the data is in the possession or control of the institution, person or entity and will assist in the investigation of the offence. [63] As part of his decision, the Provincial Court judge said this: I do not agree with [the Crown Prosecutor’s] opinion that the financial information and data requested in the ITO that falls under thefinancial information and data listed in s. 487.018 does not need to be obtained under that section, but rather can be obtained under ageneral production order pursuant to s. 487.014. His opinion renders the inclusion of the words “subject to” in s. 487.014 meaninglessand superfluous. I equate the words “subject to” to “subordinate”. Accordingly, the ordinary

interpretation of s. 487.014 is that it issubordinate to ss. 487.015 to 487.018 [64] The substantive issue, therefore is this: was the Provincial Court judge correct in his

interpretation of and the effect of thewords “subject to” found at s 487.014? Put another way, do these words make it necessary to obtain the information specified in s487.018 under that

section and do they, therefore, make it impossible to obtain that information under s 487.014, the more generalprovision because s 487.014 sets out that its provisions are “subject to” s 487.018? [65] The question is one of statutory

interpretation. [66] At paragraph 21 of Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, 154 DLR (4th) 193, theSupreme Court set out what it termed the one “principle or approach” to statutory

interpretation. The Court quoted from Elmer Driedgerin Construction of Statutes (2nd ed. 1983) page 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [67] The Supreme Court added that Driedger’s approach “recognizes that statutory

interpretation cannot be founded on thewording of the legislation alone”. [68] Subsequent statements from the Supreme Court of Canada have clarified this approach. [69] In Imperial Oil Ltd v Canada, 2006 SCC 46 at para 28, [ 2006] 2 SCR 447, the majority of the Court stated: ... Words are to be read in context, in light of the statute as a whole, that is, always keeping in mind the words of its other provisions: It has been long established as a matter of statutory

interpretation that “the words of

an Act are to be read in their entire context and in

their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:...The

interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaningthat is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of thewords play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonablemeaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on theinterpretive process may vary, but in all cases the court must seek to read the provisions of

an Act as a harmonious whole. [70] In Placer Dome Canada Ltd v Ontario (Minister of Finance), 2006 SCC 20 at para 45, [2006] 1 SCR 715, a unanimousSupreme Court observed that: Under the presumption against tautology, “[e]very word in a statute is presumed to make sense and to have a specific role to play inadvancing the legislative purpose”: see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 159. To the extentthat it is possible to do so, courts should avoid adopting

interpretations that render any portion of a statute meaningless or redundant. [71] Relying upon the approach suggested by these cases, I look first at the ordinary meaning of the words “subject to.” [72] The Provincial Court judge equated this term to “subordinate.” The Counsel for the Provincial Court judge referencedMurphy v Welsh (1991), (ON CA), 81 DLR (4th) 475, 1991 CarswellOnt 442 (Ont CA), in support of thisinterpretation. [73] Murphy v Welsh was reversed by the Supreme Court of Canada at (SCC), [1993] 2 SCR 1069. The SupremeCourt did not reject outright the Court of Appeal’s

interpretation of the words “subject to,” but held instead that “subject to” did notpreclude the two provisions there being considered both to be valid since they could stand together. [74] However, the term “subject to” can have other meanings. In the Shorter Oxford Dictionary, 5th ed (Oxford: OxfordUniversity Press, 2002), the term has eight different

definitions, only one of which is “subordinate.” They are as follows: 1. bound by a law or jurisdiction 2. under the control or influence of, subordinate to, 3. under obligation or bound to 4. submissive, obedient 5. prone or liable to, vulnerable exposed, or susceptible to 6. apprehensible or perceptible to a faculty or sense, sensitive to 7. dependent or conditional upon, resting on the assumption of” (adjective), and 8. “conditionally upon or with the assumption of” (adverb). [75] I conclude, therefore, that the ordinary meaning of the words is not so plain and obvious.

It can have more than one meaning,and so I must consider the words in their entire context in the Act. [76] The provisions of Bill C-13 came into effect on March 9, 2015. This Act amended the Criminal Code by repealing the formerproduction order provisions found in s 487.012 and s 487.013. Under the former provisions, s 487.012 permitted a general productionorder to be obtained and s 487.013 provided for production orders respecting specific types of information from financial institutions. [77] The relevant part of

section 487.012 read as follows: 487.012(1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph 3(a) (

a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or (

b) to prepare a document based on documents already in existence and produce it [78] The relevant part of

section 487.013 read as follows: 487.013(1) A justice or judge may order a financial institution, as defined in

section 2 of the Bank Act or a person or entity referred to insection 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, unless they are under investigation for an offencereferred to in paragraph (4)(

a) to produce in writing the account number of a person named in the order or the name of a person whoseaccount number is specified in the order, the status and type of the account, and the date on which it was opened or closed. [79] As can be seen, the words “subject to” do not appear in the previous iterations of these sections. [80] Bill C-13 recast s 487.012 as s 487.014. It recast s 487.013 as s 487.018 and added three other new sections – s 487.015, s487.016 and s 487.017. These sections permitted a production order for specific information.

Section 487.015 permits a productionorder for transmission data for the purpose of identifying a device or person involved in transmission or communication. Section487.016 permits a production order for transmission data and

section 487.017 permits a production order for tracking data. All ofthese provisions relate to electronic data generally.

[ 81 ] Bill C-13 makes s 487.014 “subject to” the three sections mentioned relating to specific types of electronic data as set out above, but also to s 487.018, which specifically relates to financial data. [ 82 ] Because of the wording of s. 487.018 someone seeking an order must have either the account number or the name of the person in order to get the requested information. When, as is the case here, the investigators have neither, there is no option but to proceed under s 487.014 to obtain that information.

Does the addition of the words “subject to” operate in the context of these sections now require that an applicant first make an application under s 487.014 to obtain the name or account number or both, and then to apply under s 487.018 in a separate application to obtain the information specified in s 487.018, as the Provincial Court judge found? [ 83 ] There is little case law in respect to the previous sections. R v Duncan , 2013 CM 2002 discusses the interaction of s 487.012 and s 487.013.

There a court martial judge had to consider a Charter challenge relating to the admissibility into evidence of certain information, which had been obtained under s 487.012. The applicant argued that the information, which from the case appeared to have been obtained from a bank, should more properly have been obtained under s 487.013 and should be excluded since it was improperly obtained and breached the accused’s

section 8 Charter rights. The military judge denied the application. He concluded that the information could have been obtained under either s 487.012 or s 487.013, and therefore, was properly obtained. At paragraphs 4 and 5, he discussed the difference between the two provisions: 4 Although both

section 487.012 and 487.013 authorize the making of production orders, the orders granted under the two provisions have quite different purposes. An order under

section 487.012 may require any person to produce documents, including documents prepared on the basis of data. The justice granting the order must be satisfied on the basis of the sworn material provided in support of the application that there are reasonable grounds to believe that an offence has been committed or is suspected to have been committed and that the documents or data will afford evidence respecting the commission of the offence. The

section provides in subsection 487.012(7) for the admissibility into evidence of copies of documents produced pursuant to the order and under subsection 487.012(6) the peace officer must account to the issuing court in respect of the documents or data produced once the order is executed, and comply with the regime for the detention of things seized under the authority of a warrant. 5 A production order under

section 487.013 on the other hand can only be made against a financial institution or against a member of a limited class of persons or entities thought to be involved in money laundering or terrorist financing. The order can only require the entity against whom it is made to “produce in writing” specific information identifying the account number of a named person or a name associated to a specified account number, the type of account, and the dates of opening or closing the account. The standard upon which an order can be made is the lower standard of reasonable suspicion that the information sought will assist in the investigation of an offence. The

section does not provide for the admissibility into evidence of the results of a production order under

section 487.013, and the investigators need not comply with the requirements of the Criminal Code to make a return to the issuing court once the order is executed. [ 84 ] From this case, it appears that the predecessor to s 487.014 could properly be used to obtain information which could also have been obtained under s 487.018. [ 85 ] The question then is, what Parliament intended by making the amendments. [ 86 ] Some understanding can be obtained from Parliament’s discussions when the amendments were introduced.

Bill C-13 was introduced as an omnibus Bill and discussed in Hansard, Vol 147, No 025, 2 nd Session, 41 st Parliament. [ 87 ] In introducing the Bill, the Minister of Justice, the Honourable Peter McKay said with respect to these provisions: Next, Bill C-13 proposes to update the existing judicially supervised production orders. These amendments would result in a comprehensive toolkit involving a general production order, which is comparable to a search warrant, and four specific production orders for information with little or no privacy impact...

The production orders could only be used to obtain historical information before the specific production orders contemplated by Bill C- 13 would allow the police to do the following: determine where individuals were or what they were doing at a specific moment in time, meaning tracking information; obtain transmission data, such as an email address the communication was sent to; trace the path of the telecommunication to determine the identity of a suspect; and, finally, collect basic financial information.

It should be noted that police already have the ability to apply to the court for the same type of information in other areas. He later said the following [quoting first from another speaker]: “The old tools, the old laws and regulations and common law around search warrants, lawful access etc., haven’t kept up with the technology that organized crime is using.” I agree with that. That is why we have to empower the police, modern investigators, to have modern tools to go after organized crime. [ 88 ] The former Justice Minister, the Honourable Rob Nicholson, Minister of National Defence, also took

part in the discussion, commenting specifically on

section 487.014: He [another member who had just spoken] had a problem with the voluntary production of preservation orders. I would refer him to

section 487.014 which says For greater certainty, no production order is necessary for a peace officer or a public officer enforcing or administering this or any other Act...to ask a person to voluntarily provide to the officer... We are only adding it to preservation orders. What is this individual’s problem? It is already in the Criminal Code .

[89] Little in the discussion in Hansard indicates any Parliamentary intention to limit the operation of what is now s 487.014. Indeed, the general intention seems to have been to modernize the law to include the ability to obtain specific types of data and to makethe ability to obtain information stronger and more efficient. [90] Reference was made to search warrants. Minister McKay indicated the general production order was “comparable to a searchwarrant”.

Does this indicate an intention to limit the use of a general production order and make it similar in effect to s 487.01 -- to onlythose situations where there is no other provision under the Act pursuant to which the information can be obtained? [91] I do not think so. [92] The wording of s 487.01 is very different from that found in s 487.014. Subsection 487.01(1)(

c) specifies that a judge mayissue a warrant under s 487.01 if “there is no other provision in this or any other Act of Parliament that would provide for a warrant,authorization or order permitting the technique, procedure or device or the doing of the thing”. This wording was considered by theSupreme Court of Canada in R v Telus, 2013 SCC 16, [2013] 2 SCR 3. That Court made it clear that general search warrants “are notwarrants of general application.

On the contrary, they are to be used sparingly, when the investigative technique they wish to employ istruly different in substance from an investigative technique accounted for by another legislative provision”: para 80. [93] If Parliament had intended the general production order provision to be a residual provision only, they could have used thesame clear and unambiguous language they used in

section 487.01(1)(c). [94] Indeed there is a presumption of consistent expression in statutory

interpretation. Where Parliament uses the same words,they are presumed to wish to achieve the same purpose. The opposite is also true. Where Parliament employs different words, there is apresumption that the words mean different things: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham, Ontario:LexisNexis Canada Inc, 2008) at 217, para 8.32. See also, R v Barnier, (SCC), [1980] 1 SCR 1124 at para 11, 109DLR (3d) 257. [95] Counsel for the Attorney General argued that the

interpretation of the Provincial Court judge would render the generalproduction order section, s 487.014, a residual

section and limit it similarly to s 487.01(1)(c). But, unlike, s 487.01(1)(c), there is noneed to do so, to strike the appropriate balance between the competing interests of personal privacy and the need for police to be able toeffectively investigate a crime. It is logical, she says to preclude the police from using a ‘back door’ method of obtaining something theycould not otherwise get if they had to meet the more rigorous requirements of specialized authorizations. The Telus case dealt withprecisely this issue.

In that case, the police obtained what was effectively a wiretap interception by obtaining a general warrant. [96] She argues, that the same concerns do not arise with a general production order provision. All of the specialized productionorder provisions, including s 487.018 require a lower standard for issuance than does a general production order. They can issue on astandard of suspicion, whereas s 487.014 requires a higher standard of “reasonable grounds to believe.” [97] There is also a presumption of statutory

interpretation that a legislature avoids enacting words and phrases which serve nopractical purpose and which are superfluous or meaningless: Sullivan at p. 211 para 8.2. [98] Using this presumption, one cannot simply ignore the words “subject to”. Counsel for the Attorney General does not providea definition for these words. Effectively the

interpretation she urges would simply ignore them. [99] Courts are told to avoid

interpretations that would render any portion of a statute meaningless or redundant: Sullivan, p. 211,para 8.23. [100] Given this, I am satisfied that the term “subject to” must have some meaning, and cannot simply be ignored. While I agree withcounsel for the Attorney General that s 487.014 could have been more clearly drafted, I have concluded that the words “subject to” dohave meaning. They mean “conditionally upon” and are intended to alert the reader to the fact that there are specific production orderprovisions that follow.

In other words, the meaning of s 487.014 is that it is a general provision, not subordinate to but to be used“conditionally upon” situations where the specific provisions apply. [101] Therefore, based upon this

interpretation, the general production order provision (s. 487.014) is not intended to be used wherethe information could be obtained under the more specific provisions ss 487.015 through 487.018 which follow, in circumstances wherethere is “reasonable grounds to suspect that an offence has or will be committed”. [102]

Section 487.018 specifically sets out the types of information that can be provided in a production order obtained under thatsection, however, and I do not read it as did the Provincial Court judge as providing a complete code for the data that may be obtainedfrom a financial institution.

I conclude, instead, that the legislative intention was that s 487.014 could also be used to obtain informationfrom a financial institution, if what is sought is other than enumerated in s 487.018 or where the police officer can satisfy the morestringent requirement of s 487.014 that he has “reasonable grounds to believe” that an offence has been or will be committed, and “thatthe document or data will afford evidence of the commission of the offence.” There is nothing in the words used by Parliament in thesesections to invite a contrary

interpretation or to suggest that s 487.014 should only be used sparingly and as a last resort. I consider thecontrary

interpretation too narrow and not what Parliament intended. [103] Neither do I agree with the Provincial Court judge that there is anything in the legislation to disable a police officer fromseeking to obtain a production order under s 487.014 and under s 487.018, at the same time provided the provisions of both of thesesections are complied with. [104] To conclude otherwise, as did the Provincial Court judge, would render the process needlessly cumbersome and timeconsuming.

That could not have been the intent of Parliament in drafting these provisions as they did; and the words “subject to” do notimport into the legislation any requirement that the police obtain the specific before the general. I do not consider it significant in thisregard that a separate form is required for each section.

[ 105 ] On the specific issue before me, therefore, I conclude that the Provincial Court judge erred in not granting the application made by Detective Banga, requesting all of the information sought at the same time. [ 106 ] Instead, the Provincial Court judge should grant an order under s 487.014 requiring the financial institution to provide the account numbers into which the funds from the cards have been deposited and the name(

s) of individuals associated with those accounts as well as the account holders telephone number(s), employment information, and information respecting the identification provided when the account was opened. He should also grant an order requiring the financial institution to obtain the specific information requested which may be obtained under s 487.018. Heard on the 28 th day of October, 2015. Dated at the City of Edmonton, Alberta this 16 th day of November, 2015. D.C. Read J.C.Q.B.A. Appearances: Julie Snowdon for the Crown Marvin Bloos, Q.C. for Provincial Court of Alberta