2019 NLCA 6, 2019 NLCA 6

Source: Court of Appeal of Newfoundland and Labrador

Jurisdiction: Newfoundland and Labrador

Citation: 2019 NLCA 6

Opinion

Re:

section 487.02 of the Criminal Code (18/43) Indexed As: Re:

section 487.02 of the Criminal Code 2019 NLCA 6 4 C.A.N.L.R. 51 Court of Appeal of Newfoundland and Labrador Green, Welsh and Hoegg JJ.A. January 25, 2019 IN THE MATTER OF an application in the Supreme Court of Newfoundland and Labrador for an order in the nature of certiorari and mandamus seeking to quash the refusal by a Provincial Court Judge to issue a

section 487.02 Criminal Code assistance order, sought by the Crown to give effect to a

section 492.2(1) Criminal Code transmission data recorder warrant; AND IN THE MATTER OF an Ex Parte appeal by Her Majesty the Queen from the order of a Justice of the Supreme Court of Newfoundland and Labrador made on April 13, 2018 denying the application.

Summary: An R.C.M.P. officer swore an Information to Obtain (ITO) a Transmission Data Recorder (TDR) warrant under

section 492.2(1) of the Criminal Code to authorize the police to obtain transmission data to facilitate the investigation of serious drug crime. The TDR warrant would only capture the numerical digits of unknown telephone numbers which were communicating with an identified mobile phone number and not the names and addresses associated with the unknown telephone numbers (subscriber information). Accordingly, the officer also swore an ITO to obtain an assistance order under

section 487.02 requiring telecommunications service providers (telcos) to provide to the police the subscriber information associated with the telephone numbers that were communicating with the identified cell phone once those telephone numbers were captured. A Provincial Court Judge (PCJ) granted the

section 492.2 TDR warrant but refused to grant the

section 487.02 assistance order, on the basis that subscriber information was outside the scope of

section 487.02 in conjunction with a TDR warrant and there was no jurisdiction to grant the order. The Supreme Court of Newfoundland and Labrador, General Division (SCGD) denied the Crown’s application for certiorari to quash the PCJ’s decision and mandamus to compel him (or another PCJ) to reconsider the application on a proper jurisdictional basis. The Crown appealed, and also applied to introduce fresh evidence.

Held: Fresh evidence application allowed, appeal allowed, (Green J.A. dissenting). ______________________________ Leave to appeal to SCC refused, 38639 (October 24, 2019) Hoegg J.A. (Welsh J.A. concurring): The Crown applied to admit fresh evidence focused on police use of TDR warrants and assistance orders, what is captured by the TDRs, and why, from the R.C.M.P.’s perspective, assistance orders are necessary to give effect to TDR warrants, arguing that it was in the interests of justice for the Court to receive the proposed fresh evidence. The pertinent provisions are

section 683 of the Criminal Code , rule 37 of the Court of Appeal Rules and rule 19 of its Criminal Appeal Rules . The overriding consideration in deciding whether to admit fresh evidence is whether it is in the interests of justice to do so. The fresh evidence in this case relates directly to context and to an appreciation of how assistance orders work in combination with other provisions in

Part XV of the Code and its overall scheme, and within the criminal law system. The evidence assists the Court and no party is prejudiced by it. It should be received.

Section 487.02 orders are available to assist when required to give effect to warrants and wiretap authorizations under the Criminal Code . Here, a

section 492.2 warrant is available to enable police to obtain transmission data to assist in an investigation.

Subsection 492.2(2) provided that a judge could order telcos to produce telephone records, including subscriber information to a named investigator. When the current

section 492.2 was enacted in 2014, former subsection 492.2(2) was repealed. The Crown argues that given that the objective of the new

section was to provide police with the ability to capture real time information to assist in investigations of offences already committed or that will be committed, Parliament could not have intended to make subscriber information more difficult to obtain by enacting the current

section with no specific replacement of the former subsection 492.2(2). To the extent that former

section 492.2(2) allowed for the production of subscriber information it would be strange indeed for Parliament to take away this tool without another option to fill the gap. The Legislative

Summary of Bill C-13 refers to assistance orders being available to further the objectives of the new legislation. A purposive analysis leads to the conclusion that Parliament intended assistance orders to be available to obtain subscriber information. When amending or drafting new legislation, Parliament is presumed to know all that is necessary to produce rational and effective legislation, which includes knowledge respecting the ability to obtain subscriber information under the former legislation and the availability of assistance orders to obtain subscriber information under the new legislation.

In defining transmission data, Parliament specifically considered what information could be revealed through the use of a TDR warrant. Subsection 492.2(6) limits the information a

section 492.2 warrant can obtain by specifically stating that “the substance, meaning, or purpose of the communication” cannot be revealed. Conspicuously absent from the definition of transmission data in subsection 492.2(6) is a provision addressing subscriber information. The fact that obtaining subscriber information is not precluded by

section 492.2 is an indication that Parliament did not intend to prevent the police from requiring telcos to produce it and that Parliament expected or assumed that it could be lawfully obtainable by means of an assistance order. T he definition of transmission data in

section 492.2(6) contemplates that raw transmission data obtained by a TDR can be made meaningful through the use of an assistance order. 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 telcos 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. A PCJ has jurisdiction to grant a

section 487.02 assistance order requiring telcos to reveal the subscriber information associated with telephone numbers lawfully captured by a TDR pursuant to the lawful execution of a TDR warrant. This matter is remitted to Provincial Court for a determination of whether an assistance order is appropriate on the specific facts of the Crown’s application. Green J.A., dissenting: The fundamental question at issue in this appeal is what is the meaning and effect of the phrase “to give effect to” in

section 487.02 of the Criminal Code , relating to assistance orders, as applied in relation to the operation of a transmission data recorder warrant granted under

section 492.02 . The appeal is this case engages a determination of the jurisdiction of a judge to issue an assistance order under

section 487.02 of the Code . These matters attract a standard of review of correctness. The police are not permitted to interfere with the liberty of any citizen or intrude on a citizen’s life, and in particular to have access to an individual’s personal information, except through public observation or in respect of which there is no reasonable expectation of privacy, unless they are authorized by law and in a Charter -compliant way. The issue in the current case is whether Parliament has, by its enactment of

section 487.02 , manifested an intention to authorize the type of intrusions into citizens’ affairs that are at issue in this case thereby reducing the rights that they would otherwise have. The meaning and legal effect of a statutory enactment is discerned by examining the words of the statute in their entire context and in their grammatical and ordinary sense, in harmony with the statute’s scheme and object. The court must, then, consider (

a) the words used; (

b) their statutory context; (

c) the problem or mischief to which the enactment was directed; (

d) the legislative history of the implementation and modification of the provision in question; and (

e) the legislative record to determine what the proponents of the bill were attempting to achieve. Each of these sources must be reconciled to the extent possible to arrive at the best defensible construction possible. The starting point, however, is the language chosen by the legislator. The scope and limits of an assistance order are governed by

section 487.02 . The assistance is limited by and tied to giving effect to the

warrant, in this case the TDRW. The assistance order does not exist on its own; it is parasitic upon the thing it is designed to assist. It can do nothing more. The assistance should, on this analysis, be directed to capturing “transmission data” and only transmission data, not additional information that may make the transmission data itself more useful. Furthermore, it must be assistance that may be reasonably considered to be required to “give effect to” the warrant. This analysis is consistent with the approach to the use of assistance orders in other contexts.

No authority has been located where an assistance order was used to obtain information separate from and not included within the scope of the main originating warrant. The scope of an assistance order under

section 487.02 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. The Crown’s argument in this regard is merely an attempt to avoid the fact that, no matter how one looks at it, an assistance order cannot be used to expand the search power obtained by the police through a TDRW. An assistance order that facilitates the installation, activation, use, maintenance, monitoring or removal of a TDR could reasonably be considered to be authorized by

section 492.2 because it assists in the operation of the warrant. It “gives effect to” the warrant by making it operative in the sense of enabling it to do its job of obtaining, recording or transmitting transmission data. The informational scope of the warrant is determined by reference to the notions of “data” and “transmission data” which are defined in subsection 492.2(6). It is accepted for the purposes of this appeal that the transmission data that can be accessed and retrieved by the operation of a TDR does not include actual customer name and address (CNA) information.

Section 492.2(1) only authorizes a warrant to obtain transmission data “ by means of a transmission data recorder.” Thus, even if the definition of transmission data can be said to include CNA information, it is only the type of information that can be captured by a TDR that is authorized. It would therefore be only that information that the granting of an assistance order can “give effect” to. The statutory scheme dealing with obtaining information relating to telecommunications provides other means whereby CNA information can be obtained. Production orders under

section 487.014 can be, and have been, used to obtain CNA information. A production order can only result in production of historical information. It cannot capture CNA information in real time. However, convenience is no basis for interpreting statutory language contrary to ordinary statutory contextual meaning. Even read in its broader statutory context, the language used in sections 487.02 and 492.2 does not support an

interpretation that would allow the use of assistance orders to obtain information that is not of the type that could be obtained by a TDR. Under the previous legislation, the judge granting the former number recorder warrant could also order the associated telephone records (containing CNA information in the form of telephone numbers and their location to or from which calls were received or sent) to be produced. That authority was removed from the Code . If anything, therefore, this could indicate an intention not to authorize provision of such information any more. While one could speculate from the Legislative

Summary that the drafters of Bill C-13, which enacted the present

section 492.2, may have had the unexpressed assumption that an assistance order might be able to supply the CNA information not otherwise directly available through the operation of a TDRW, that was not expressed in the Legislative

Summary. The Legislative

Summary does not assist in determining the nature and extent of the assistance that is statutorily authorized by

section 487.02. References to the legislative record therefore do not help in the interpretive process at issue here and, if anything, support the earlier conclusions reached from a contextual review of the legislative language. There was no specific provision in Bill C-13 for the ordering of provision of CNA-type information as an adjunct to the granting of a TDRW. Had the drafters wanted to ensure that the assistance order could be used in the manner contemplated by the Crown, they could easily have inserted a provision in the new

section 492.2 allowing the court to make an ancillary order requiring production of CNA information in real time or immediately following the capture of the raw transmission data, along the lines of the old

section 492.2(2) relating to number recorder warrants. They did not. It also seems odd that if CNA information could only be obtained retrospectively under a production order on the basis of reasonable grounds to believe, it could nevertheless be obtained prospectively in real time on a lesser standard, where privacy safeguards may be harder to maintain. All of this points, if anything, to a conclusion that Parliament did not intend that the device of an assistance order could be used to acquire CNA information in real time.

One cannot say therefore, that the unavoidable inference from Parliament’s response in light of the legislative history is that it must have intended to allow acquisition of CNA information in real time through use of assistance orders. The language employed in sections 487.02 and 492.2 , the structure of the legislative regime and the broader statutory context all point to a conclusion that the legal effect of the assistance order provision is limited to giving effect to making a TDRW operative in the sense of facilitating access to the information which the predicate authorization was designed to capture.

It does not extend to facilitating the police investigation generally by allowing for further intrusions into citizens’ affairs to obtain additional information that might make the original information more meaningful or effective. The Crown made an application for reception of evidence for use on the appeal. I accept that there is a residual discretion on the part of the Court to receive contextual background information for the purpose of better understanding the implications of the operation of a statutory provision when the meaning and effect of that provision is in issue.

Under the circumstances, therefore, I am not prepared to dissent from my colleagues’ decision to allow the proffered evidence in this case to form part of the record on this appeal. However, I

would observe that such evidence should be accepted with caution and not as of course. Whether or not the evidence at issue here isadmitted, it does not affect the outcome of this appeal. If Parliament, either deliberately or even through inadvertence, adopted a less then efficacious means of assisting the police in theirimportant work, it is not for the courts to authorize additional intrusions in peoples’ lives to fix the problem. That job falls to Parliament.The appeal should be dismissed. The judicial review judge committed no legal error in her

interpretation of the relevant provisions of theCriminal Code or in dismissing Crown’s application. Cases cited: Hoegg J.A.: R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212 R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487 R. v. Thorne, 2015 NLCA 27, 367 Nfld. & P.E.I.R. 286 Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 ATCO Gas & Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3 Canada 3000 Inc. (Re), 2006 SCC 24, [2006] 1 S.C.R. 865 Archean Resources v.

Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795 R. v. Nabis, (SCC), [1975] 2 S.C.R. 485, 48 D.L.R. (3d) 543 R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26 R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269 R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641 Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 R. v.

Telus Communications Co., 2015 ONSC 3964, 122 W.C.B. (2d) 281 R. v. Wong, 2016 BCSC 1834 R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 R. v. Lyons, (SCC), [1984] 2 S.C.R. 633, 14 D.L.R. (4th) 482 Green J.A. (dissenting): R. v. A.B., 2014 NLCA 8, 346 Nfld. & P.E.I.R. 218 R. v. Khan, 2014 ONSC 5664 R. v. Morrison, 2014 ONCJ 774 R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641 R. v. Nguyen, 2004 BCSC 72, 20 C.R. (6th) 135 R. v. Spencer, 2014 SCC 43 Huckle v. Money (1763), 2 Wils K.B. 205, 95 E.R. 768

Entick v. Carrington, (1765) 2 Wils K.B. 275, 95 E.R. 807 R. v. Gomboc, 2015 SCC 55, [2010] 3 S.C.R. 211 British Columbia v. Philip Morris International, Inc., 2018 SCC 36 Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 R. v. TD, 2018 ABPC 231 R. v. Lam, 2015 ONSC 2131 R. v. Larson (1996), (AB CJ), 194 A.R. 161 (Alta. Prov. Ct.) R. v. Millard, 2016 ONSC 348 R. v. Chang, 1998 CarswellOnt 1849, [1998] O.J. No. 1789 (Ont. Gen. Div.) R. v. Doiron, 2005 NBQB 89, 748 A.P.R. 8 Canada Post Corp. v.

Canada (Attorney General) (1995), (ON SC), 95 C.C.C. (3d) 568 (Ont. Gen. Div.) R. v. TELUS Communications Company, 2015 ONSC 3964 Lyons v. The Queen, (SCC), [1984] 2 S.C.R. 633, 14 D.L.R. (4th) 482 R. v. Palmer, (SCC), [1980] 1 S.C.R. 759 R. v. O’Brien, (SCC), [1978] 1 S.C.R. 591, 76 D.L.R. (3d) 513 at 602) Assn. of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22, 428 N.R. 297 Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal, 2018 BCCA 387 Apotex Inc. v. Merck & Co., 2004 FCA 298, 134 A.C.W.S (3d) 70 R. v.

Boutcher, 2001 NFCA 33 Seaford Court Estate Ltd. v. Asher, [1949] 2 K.B. 481 Rex v. Wilkes (1768), 4 Burr 2527, 98 E.R. 327 Counsel: Mark Covan and Andrew Brown, for the appellant; Robby Ash, Amicus Curiae. This appeal was heard on June 21, 2018 before Green, Welsh and Hoegg JJ.A.

The following judgment was filed on January 25, 2019 by Hoegg J.A., concurred in by Welsh J.A., with separate dissenting reasons byGreen J.A. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] In today’s world much communication happens through technology, including cellular, digital, analog and other forms ofmessaging. Canadian criminal law recognizes this fact by Parliament’s provision of authority to police to capture information respecting communications in appropriate circumstances to assist in their investigations.

One way ofcapturing such information is through the use of a transmission data recorder (TDR) warrant issued under

section 492.2(1) of theCriminal Code. This appeal requires interpreting sections of the Code to ascertain the extent to which a TDR warrant can be assisted byan assistance order under

section 487.02. The

interpretation involves balancing legislated police powers to investigate crime and the

privacy interests of individuals. BACKGROUND [ 2 ]

Section 492.2(1) of the Code provides that police, on grounds of reasonable suspicion that “an offence has been or will be committed [ … ] and that transmission data will assist in the investigation of the offence”, may obtain a warrant to obtain transmission data through a transmission data recorder (TDR). The TDR captures the transmission data in “real time” so that suspected crime can be investigated as it is being committed or soon thereafter ( Legislative

Summary of Bill C-13 (Ottawa: Library of Parliament, 2013) Publication No. 41-2-C13-E, at 14). [ 3 ] In this case, a Royal Canadian Mounted Police (R.C.M.P.) officer involved in an investigation of serious drug crime swore an Information to Obtain (ITO) a TDR warrant under

section 492.2(1) to authorize the police to obtain transmission data to facilitate the investigation. The police were seeking information respecting unknown telephone communications with an identified mobile phone number. A TDR warrant would only capture the numerical digits of the as yet unknown telephone numbers which were communicating with the identified mobile phone number and not the names and addresses associated with the as yet unknown telephone numbers (subscriber information). Accordingly, the officer also swore an ITO to obtain an assistance order under

section 492.2 TDR warrant but refused to grant the

section 487.02 assistance order, on the basis that subscriber information was outside the scope of

section 487.02 in conjunction with a TDR warrant. As such, he concluded that he did not have jurisdiction to grant the assistance order. Consequently, the Crown applied to the Supreme Court of Newfoundland and Labrador, General Division (SCGD) for certiorari to quash the PCJ’s decision and mandamus to compel him (or another PCJ) to reconsider the application on a proper jurisdictional basis. [ 5 ] The SCGD Justice denied the Crown’s application.

In agreeing with the PCJ she said: … 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.” Subscriber information is not transmission data. To interpret s. 487.02 as giving effect to a s. 492.2 warrant by allowing [ … ] the police to simultaneously access subscriber information along with the transmission data is tantamount to expanding the scope of the definition of “transmission data” under s. 492.2.

In my view, the words “assistance” and “to give effect,” as contained in s. 487.02 cannot reasonably be interpreted to permit expansion of the scope of the definition of “transmission data” under a s. 492.2 warrant. Surely, such an

interpretation would require clearer statutory language. In the absence of such clearer statutory language, I do not accept that a reasonable

interpretation of s. 487.02 expands the express definition of “transmission data” in s. 492.2. In other words, under s. 487.02, any assistance order to be provided to give effect to a TDRW is, in my view, for the purpose of assisting in fulfilling the objective of obtaining transmission data as defined under s. 492.2. It is not for the purpose of obtaining subscriber information, which, as stated, is not encompassed by the definition of “transmission data.” She summarized her reasoning as follows: In

summary, I therefore find that the subscriber information cannot be accessed through an assistance order for a TDRW. Rather, in my view, such can be subsequently accessed under a production order or orders. I have concluded that the Crown did not establish that s. 487.02 should be interpreted to expand the scope of the definition of “transmission data” under s. 492.2 of the Code . Based on the foregoing analysis and after carefully considering the submissions and the authorities, I dismiss the Crown’s application for certiorari and mandamus . The sealed packages are to be returned to Provincial Court.

Order accordingly. [ 6 ] The Crown appealed the SCGD Justice’s decision. [ 7 ] The matter proceeded to this Court on an ex parte basis. While the Crown gave notice of its appeal to four different telcos, none sought to intervene. On May 18, 2018, the Crown applied for directions on how to proceed, and on June 6, 2018, this Court ordered the appointment of amicus curiae to oppose the Crown’s position so that both sides of the issues raised in the appeal could be fully argued. The Fresh Evidence Application [ 8 ] Also on June 6, 2018, the Crown applied to have this Court hear fresh evidence.

The application for fresh evidence and the appeal were heard together on June 21, 2018. [ 9 ] The proposed fresh evidence comprised affidavit and viva voce testimony from Constable David Emberley of the R.C.M.P. Federal Services and Organized Crime Division and Ms. June Dawe, an administrator in the same R.C.M.P. division.

The proposed fresh evidence focused on police use of TDR warrants and assistance orders, what is captured by the TDRs, and why, from the R.C.M.P.’s perspective, assistance orders are necessary to give effect to TDR warrants. [ 10 ] The Crown argued that it was in the interests of justice for the Court to receive the proposed fresh evidence, saying that it would inform “a purposive, remedial

interpretation of the assistance order provision” and would “expose the interpretative errors in the courts below”. [ 11 ] Amicus counsel argued that the proposed fresh evidence should not be admitted because it was not relevant to interpreting the statutory provisions in issue. Amicus also maintained that any clarification respecting the use of assistance orders in conjunction with TDR warrants would not have made any difference to the decisions below. [ 12 ] The Court agreed to hear the fresh evidence and to reserve its decision respecting its admission and use.

[13] The Crown’s application is made under

section 683 of the Code which provides for the admission of fresh evidence in a court ofappeal: 683

(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

a) order the production of any writing, exhibit or other thing connected with the proceedings; (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court ofappeal or justice of the peace or other person appointed by the court of appeal for the purposes. [14]

Section 683 was preceded by section 610(1), which was interpreted by the Supreme Court of Canada in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212. In Palmer the Supreme Court observed that the

section gives judges a broaddiscretion to admit fresh evidence. It set out four factors to be considered in exercising that discretion, but made clear that the overridingconsideration in deciding whether to admit fresh evidence is whether it is in the interests of justice to do so (page 775). This approachwas confirmed twenty years later in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487 at para. 17. [15] Rules 37 of this Court’s Court of Appeal Rules and 19 of its Criminal Appeal Rules also pertain.

An application for prerogativerelief in a criminal law matter involves both civil and criminal law, and so either rule arguably applies. However, it is not necessary toresolve which rule governs, for the considerations set out in both rules and the jurisprudence are all subject to the overriding question ofwhether it is in the interests of justice to admit the proposed fresh evidence, as section 683(1) states. In this regard I refer to R. v. Thorne,2015 NLCA 27, 367 Nfld. & P.E.I.R. 286 wherein Welsh J.A. of this Court admitted fresh evidence that had not been tendered at trialdue to an error of counsel.

In so doing, she relied on the Supreme Court’s statement at paragraph 15 of Lévesque that “failure to meet thedue diligence criterion should not be used to deny admission of fresh evidence if that evidence is compelling and it is in the interests ofjustice to admit it”. [16] In this case, the proposed fresh evidence is not factual in the sense that it is material to a decision or verdict in a criminalprosecution. Rather, it is contextual evidence respecting how and why police use assistance orders to give effect to TDR warrants. Onecould almost say the evidence of Constable Emberley and Ms.

Dawe is more in the nature of argument. [17] In any event, the modern principle of statutory

interpretation focusses on the value of context to the interpretative exercise, andthe value of seeing the provisions in issue as part of a larger scheme or system (Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, and ATCO Gas & Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006]1 S.C.R. 140). [18] The fresh evidence in this case relates directly to context and to an appreciation of how assistance orders work in combinationwith other provisions in

Part XV of the Code and its overall scheme, and within the criminal law system. Why a

section 487.02 order isnecessary and how one works in relation to a TDR warrant goes to the heart of the issue before the Court, and evidence in this regardcould only serve to assist the Court. [19] Also important is that the evidence provided by Constable Emberley and Ms. Dawe is not proposed to be admitted in adversarialproceedings. The considerations set out in Palmer and the subsequent jurisprudence were developed and have been largely applied inadversarial contexts — like criminal prosecutions — where fairness concerns arise.

In this case, there is no party to a prosecution orother action who could be prejudiced by the fresh evidence. [20] For the above reasons, I would admit the fresh evidence. ISSUES [21] The central issue is whether the SCGD Judge erred in finding that the assistance order sought in this case was not reasonablyrequired to give effect to the issued TDR warrant.

Resolution of the issue requires determining whether assistance orders under section487.02 of the Code are available to require telcos to provide the subscriber information associated with particular telephone numberscaptured by the lawful use of a TDR pursuant to a

section 492.2 warrant. Whether subscriber information can be considered“transmission data” for the purposes of a

section 492.2 warrant is also in play. The Positions of the Parties [22] The Crown argued the importance of this case to police investigations, explaining that TDR warrants are sought in order toacquire data that will assist in the investigation of an offence, emphasizing that they are prospective tools used to build investigationsinto suspected crime. This argument was supported by the fresh evidence. The Crown says that telephone numbers captured as data by aTDR recorder are, in and of themselves, virtually useless to an investigation. The subscriber information associated with the capturedtelephone numbers is the information that is actually useful to an investigation. Thus,

section 487.02 assistance orders that enable policeto obtain this subscriber information from telcos are necessary to “give effect to” issued TDR warrants. [23] I divert momentarily to note, as the SCGD Judge stated, that it is possible that raw transmission data in the form of a telephonenumber could possibly be of use to an investigation. For example, if a captured telephone number was already known to an investigatoror known to be associated with criminal activity, the number itself may be useful in that it could confirm suspicions and thereby advancean investigation.

However, such a situation would be rare, as Constable Emberley testified. Almost invariably the presenting situation inan investigation is that the subscriber information associated with a captured telephone number is in fact the information that is being

sought for the investigation. The subscriber information can then inform further investigation and may be able to be used for thepurpose of seeking a further warrant. Obtaining subscriber information in a timely fashion is especially important to investigations ofserious drug crime, where cell phones and numbers are changed frequently so as to avoid leaving a detection trail. [24] The Crown further argues that use of a production order or a general warrant to obtain subscriber information, as the SCGDJudge suggested, is not a reasonable alternative to an assistance order.

The Crown says that a production order or warrant requires ahigher standard of grounds to obtain, and obtaining either is a time-consuming, and retrospective, exercise. Moreover, the Crown says itis questionable whether a general warrant would be available given the Supreme Court of Canada’s decision in R. v.

TelusCommunications Co., 2013 SCC 16, [2013] 2 S.C.R. 3 at para. 80. [25] In sum, the Crown’s position is that refusal of assistance orders in cases like this makes obtaining TDR warrants a futile exercisein almost all cases, thereby defeating Parliament’s intention to provide police with real time information to investigate crime. Narrowingand limiting the availability of assistance orders reflects, in the Crown’s submission, an outdated approach to statutory

interpretationwhich would produce an absurd result. [26] Amicus curiae argues that the language in

section 492.2 limits the information able to be obtained through the use of a TDRwarrant to the raw transmission data captured by the TDR, which in this case would be only the captured telephone numbers with whichthe identified telephone number is communicating. Amicus counsel’s position is that “transmission data” in

section 492.2 does notinclude subscriber information. He says that when a

section 487.02 order is requested to assist a TDR warrant, that order must belimited to providing assistance of a technical or operational nature to enable the “installation, activation, use, maintenance, monitoringand removal” of a TDR. Amicus counsel argues that the words in

section 487.02 “may reasonably be required to give effect to” cannotbe interpreted in a manner which broadens the scope of a TDR warrant by interpreting transmission data to include subscriberinformation. To do so would, in his submission, broaden the scope of

section 492.2 warrants, and thereby go beyond what Parliamentintended. [27] For the reasons that follow, I am of the view that

section 487.02 assistance orders for subscriber information are “reasonablyrequired to give effect to”

section 492.2 TDR warrants and are therefore available to require telcos to provide the subscriber informationassociated with lawfully captured telephone numbers pursuant to the lawful execution of a

section 492.2 TDR warrant. ANALYSIS The Principles of Statutory

Interpretation [28] The principles of statutory

interpretation are not in dispute. Nevertheless, it is useful to be reminded of them. [29] As the Supreme Court of Canada explained in Rizzo Shoes, the meaning of statutory provisions cannot be determined from theirsimple wording. Rather, the words of a statute must be read in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the act (paragraphs 21-22). In ATCO Gas, the Supreme Court confirmed this modern principle,emphasizing that a statutory provision is a component of a larger legislative scheme which cannot be ignored (paragraph 49). Both RizzoShoes and ATCO Gas relied upon the provision in the respective provincial

Interpretation Acts to support their reasoning. [30] In Canada 3000 Inc. (Re), 2006 SCC 24, [2006] 1 S.C.R. 865 the Supreme Court was interpreting federal legislation respectingairport and navigation services. In so doing, the Court noted Parliament’s express direction in

section 12 of the

Interpretation Act R.S.C.1985, c. I-21 that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation asbest ensures the attainment of its objects” (paragraph 84). [31] This Court’s decision in Archean Resources v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124, acase involving

interpretation of provincial legislation, further explained the modern principle. In referencing the “remedial” direction ofsection 16 of this province’s

Interpretation Act, which is the same remedial direction as that found in

section 12 of the federalInterpretation Act, Green J.A. stated at paragraphs 22 and 23: … s. 16 directs the court to consider every provision “remedial” and to interpret it so that it “best” ensures the attainment of its “objects”according to its “true” meaning.

This requires a consideration, as an integral part of the interpretive exercise, of the problem or“mischief” to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language ofthe whole enactment and the court’s general knowledge of the state of the pre-existing law and any information as to the broad socialcontext in which the legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a “true” meaning.

That inevitably requires an examination of more than the bare words of the legislativeenactment that is in issue, no matter how clear or unambiguous they may at first blush appear. The surrounding text, the interrelation ofother related statutes, the social and legislative context in which the provision was enacted, and other extrinsic aids are all sources to beconsulted in this exercise. … In truth therefore, s. 16 enunciates a principle of harmonization in which the courts are directed … to adopt and apply an

interpretationthat fairly reconciles the language used in the enactment with the broader objects of the legislation so as to achieve the general goal, or torectify the mischief, to which the legislative act appears to have been directed. … (See also British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795 at para. 45 and R. v.

Nabis (1974), (SCC), [1975] 2 S.C.R. 485, 48 D.L.R. (3d) 543 at 493-494.) [32] Amicus counsel does not disagree with the law as stated above, although he advocates that in this case the language in sections492.2 and 487.02 is plain on its face and should be strictly construed. [33] A word about strict construction. Before the Supreme Court of Canada’s adoption of the modern principle, the

interpretation ofpenal statutes was guided by the principle of strict construction. The difference in application between the modern principle and theprinciple of strict construction was considered in Canada 3000 Inc. The Court resolved the difference in favour of the modern principle

applying to all statutory

interpretation, saying at paragraph 28: … only if a provision is ambiguous (in that after full consideration of the context, multiple

interpretations of the words arise that are equally consistent with Parliamentary intent), is it permissible to resort to interpretive presumptions such as “strict construction”. The applicable principle is not “strict construction” but

section 12 of the

Interpretation Act , which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects”; see Bell ExpressVu, at para.28 … This state of the law was confirmed, and emphasized, by the Supreme Court of Canada in R. v. Jaw , 2009 SCC 42 , [2009] 3 S.C.R. 26 at para. 38 : … I have reservations about the proposition that any uncertainty in a charge must , as a matter of course, be resolved in favour of the accused. This proposition seems to be based on the strict constructionist approach to interpreting penal legislation that developed in the eighteenth century, when criminal law sanctions were especially severe. By the mid-1980s, however, the presumption of a restrictive

interpretation of penal statutes had started to wear thin. A restrictive

interpretation may be warranted where an ambiguity cannot be resolved by means of the usual principles of

interpretation. But it is a principle of last resort that does not supersede a purposive and contextual approach to

interpretation. Even if the impugned statement in the instant case did disclose a true ambiguity, an attempt would first have to be made to resolve it by resort to general principles and methods of

interpretation. … (References removed, emphasis in original.) Accordingly, the governing approach to the

interpretation of all legislation, including the provisions of the Criminal Code , is application of the modern principle. The Legislation [ 34 ] In pertinent part,

section 492.2 reads: 492.2

(1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder.

(2) The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the transmission data recorder, including covertly. (Emphasis added.) [ 35 ] “Data” and “transmission data” are defined in

section 492.2(6): data means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device. ( données ) transmission data means data that (

a) relates to the telecommunication functions of dialling, routing, addressing or signalling; (

b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and (

c) does not reveal the substance, meaning or purpose of the communication. ( données de transmission ) [ 36 ]

Section 487.02 of the Code provides that a judge may order a person to provide assistance respecting warrants and specific authorizations upon being satisfied to do so: If an authorization is given under

section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant. [ 37 ] I would first observe that

section 487.02 states that orders are available to assist “when reasonably required to give effect to” warrants and specific wiretap authorizations issued under the Criminal Code . The warrant at issue in this case is a

section 492.2 warrant, which is available for the purpose of enabling police to obtain transmission data that will assist in an investigation. Whether a

section 487.02 assistance order can be used to give effect to a TDR warrant in the manner requested by the Crown must therefore be determined in consideration of the purpose for the

section 492.2 warrant issued in this case, as well as the other and varied circumstances in which assistance orders can be lawfully used. A “fair, large and liberal

interpretation” of the statutory provisions in issue that will best ensure the attainment of the objects of the Code is required in any event, but such an

interpretation is especially important in this case so as not to unduly restrict or conflict with lawful uses of assistance orders in other situations. At the same time, however, such an

interpretation cannot serve as a guise to expand the scope of a predicate authorization or warrant. [ 38 ] The legislative history of statutory provisions is a legitimate consideration in applying the modern principle to an

interpretation of their meaning ( R. v. Ulybel Enterprises Ltd. , 2001 SCC 56 , [2001] 2 S.C.R. 867 at para. 33 ). The Supreme Court stated this point succinctly a few years later in R. v. A.D.H. , 2013 SCC 28 , [2013] 2 S.C.R. 269 , saying at paragraph 30 :

Legislative evolution and history may often be important parts of the context within which to conduct the modern approach to statutoryinterpretation. … [39] In this regard consideration of the previous

section 492.2 is helpful. It read: 492.2(1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence underthis or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of theoffence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a publicofficer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include theenforcement of this Act or any other Act of Parliament and who is named in the warrant (

a) to install, maintain and move a number recorder in relation to any telephone or telephone line; and (

b) to monitor, or to have monitored, the number recorder. Order re telephone records

(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possessesrecords of telephone calls originated from, or received or intended to be received at, any telephone [to] give the records, or a copy of therecords, to a person named in the order. (Emphasis added.) [40] As noted above, subsection 492.2(2) provided that a judge could order telcos to produce telephone records to a namedinvestigator. The Crown submits and Amicus agrees that the words “telephone records” were held to include subscriber information inR. v.

Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641 at paras. 34, 50, 52 and 100 to 117. [41] While I am dubious that Mahmood decided that an order for production of “telephone records” could include subscriberinformation, I do not take issue with the underlying proposition that former

section 492.2(2) could be interpreted that way. The formersection 492.2(2) allowed for the production of “records”, and I accept that the term was sufficiently broad that it could include subscriberinformation. I accept that the Mahmood court ruled that there was a reasonable expectation of privacy, albeit minimal, in subscriberinformation. [42] When the current

section 492.2 was enacted in 2014, former subsection 492.2(2) was repealed. The Crown argues that giventhat the objective of the new

section was to provide police with the ability to capture real time information to assist in investigations ofoffences already committed or that will be committed, Parliament could not have intended to make subscriber information more difficultto obtain by enacting the current

section with no specific replacement of the former subsection 492.2(2). Rather, the Crown maintains,Parliament relied on the availability of

section 487.02 assistance orders to order telcos to provide subscriber information in order “to giveeffect to TDR warrants.” [43] Statements of purpose found in extra-legislative sources are recognized as providing legitimate insight into legislative intent(Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 at para. 47). [44] In this case, clause 2.1.6 of The Legislative

Summary of Bill C-13 referred to above directly states Parliament’s intention that thenew legislation is for the purpose of allowing police officers to more quickly investigate past or possible future offences. [45] The Legislative

Summary of Bill C-13 also refers to assistance orders being available to further the objectives of the newlegislation, stated to “allow police officers to more quickly investigate past or possible future offences”. In light of this stated objective,it would be illogical to conclude that Parliament intended to limit investigatory powers that not only had previously existed, but hadintended to enhance.

I would therefore conclude, on a purposive analysis, that Parliament intended for assistance orders to be availableto obtain subscriber information (the purposive analysis is discussed in Sullivan at 255, and endorsed by the Supreme Court of Canada inCanada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10). [46] This was the conclusion arrived at by Nordheimer J. (as he then was) in R. v. Telus, 2015 ONSC 3964, 122 W.C.B. (2d) 281. Atparagraph 54, Justice Nordheimer stated: … Parliament also knew that an assistance order existed under

section 487.02. It is a provision of general application to all warrantsissued under the Criminal Code. There is no reason to believe that Parliament did not intend to leave the issue, whether subscriberinformation was needed in any particular instance, to be addressed under that general provision. … [47] To the extent that former

section 492.2(2) allowed for the production of subscriber information it would be strange indeed forParliament to take away this tool without another option to fill the gap. This would be inconsistent with the objective of providinginvestigators with tools to obtain real time information to assist in investigations. I do not accept that Parliament would neuter the use ofTDR warrants by amending

section 492.2 in a manner that frustrates its objective. It is much more likely that

section 487.02 was alwaysavailable to assist in providing subscriber information to police in appropriate cases. [48] The record before the Court does not disclose the practice for obtaining subscriber information prior to 2014. It could be thatsection 487.02 was relied on then to obtain subscriber information. Or, as the Court observed at paragraph 7 of R. v. Wong 2016 BCSC1834 , 2016 B.C.S.C. 1834, prior to the Supreme Court’s decision in R. v.

Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, telcosroutinely provided subscriber information upon police request. [49] When amending or drafting new legislation, Parliament is “presumed to know all that is necessary to produce rational andeffective legislation,” which includes a “mastery of existing law, both common law and statute law, and the case law interpretingstatutes” (Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, ON: LexisNexis, 2008) at 205. To my mind this

would include knowledge respecting the ability to obtain subscriber information under the former legislation and the availability ofassistance orders to obtain subscriber information under the new legislation. Again, an assistance order under

section 487.02 is availableto realize the objective of a

section 492.2 warrant. To make a TDR warrant effective – or useful – its objective must be realized. Itsobjective is to obtain transmission data that will assist in an investigation. [50] Another important consideration in this interpretative task is the standard on which

section 492.2 TDR warrants can be obtained. A TDR warrant can be obtained on reasonable grounds to suspect. By contrast, the standard on which a general warrant or a productionorder can be obtained is reasonable grounds to believe. Reasonable suspicion is a lower standard than reasonable belief (see theconcurring reasons of Binnie J. in R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456). [51] Parliament provided that a TDR warrant, as an investigatory tool directed at providing real time information to “allow policeofficers to more quickly investigate past or possible future offences”, was to be made available on the lower standard of reasonablesuspicion. Parliament must be presumed to have known what it was doing in deliberately setting the lower standard for obtaining a TDRwarrant.

As well, it is noteworthy that obtaining a TDR warrant does not engage the rights of an individual in the way that obtaining asearch warrant would, which may explain or justify the lower standard. [52] Appreciating the difference between the two standards brings the interpretive task into focus. TDR warrants are different thanproduction orders and general warrants in that they work prospectively by enabling the investigation of serious crime in real time.

Production orders and general warrants are obtainable only after information is already known and believed to exist, and then only if ajudge is satisfied that the affiant seeking the order or warrant has reasonable grounds to believe that an offence has been or will becommitted, that the information sought is in a particular person’s possession or control, and that it would assist in the investigation. Inother words, production orders and general warrants are retrospective tools used to obtain known information; a TDR warrant is a meansto discover information not only not known, but perhaps not yet in existence.

It is the potential availability of current subscriberinformation respecting who the identified telephone number is communicating with that is valuable to the investigation. Obtainingsubscriber information is what can lead to the identification of suspects and provide grounds to obtain a production order. Withoutsubscriber information, the investigation is no further ahead, no matter how many communications take place between an identifiedtelephone number and an unidentified one.

The grounds to obtain a production order are not elevated by knowing telephone numbers,they are elevated by knowing with whom the telephone numbers are associated. [53] Also important is the fact that the process of obtaining a production order or general warrant is time-consuming.

By the time ageneral warrant or production order could be obtained, a captured telephone number may well have been changed or disconnected, asConstable Emberley testified, making obtaining a TDR warrant a futile exercise. [54] The SCGD Judge ruled that subscriber information is not included in the definition of transmission data found in

section 492.2. Iam of a different view. [55] As previously stated, data and transmission data are defined in

section 492.2(6): “data” means representations including signs, signals or symbols, that are capable of being understood by an individual or processed by acomputer system or other device. “transmission data” means data that (

a) relates to the telecommunication functions of dialing, routing, addressing or signaling; (

b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), inorder to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated duringthe creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration,size, origin, destination or termination of the communication; and (

c) does not reveal the substance, meaning or purpose of the communication. [56] In defining transmission data, Parliament specifically considered what information could be revealed through the use of a TDRwarrant. Subsection 492.2(6) limits the information a

section 492.2 warrant can obtain by specifically stating that “the substance,meaning, or purpose of the communication” cannot be revealed. The “substance, meaning, or purpose” of the communication is for allintents and purposes the content of the communication—the actual conversation between the caller and the recipient of the call. Conspicuously absent from the definition of transmission data in subsection 492.2(6) is a provision addressing subscriber information;subscriber information is not mentioned at all. The fact that obtaining subscriber information is not precluded by

section 492.2 is anindication that Parliament did not intend to prevent the police from requiring telcos to produce it and that Parliament expected orassumed that it could be lawfully obtainable by means of an assistance order. More to the point, if Parliament intended that only rawdata could be obtained by use of a TDR warrant, there would have been no need to enact

section 492.2(6)(

c) to explicitly exclude contentfrom the definition of transmission data. [57] Other parts of subsection 492.2(6) also inform the interpretative analysis. In the definition of transmission data, subsection (a)states that transmission data means data that relates to routing and addressing. Subsection (

b) speaks to identifying a device (which inthis case would be any of the telephones in communication with the identified telephone) and to identifying or purporting to identify the“… destination or termination of the communication”. To my mind the digits of a captured telephone number do not identify thetelephone in any meaningful way. Neither do the digits of a telephone number identify the destination or termination of acommunication in any meaningful way. Identification of the devices and the destinations or terminations of the communications arewhat is being sought through the use of a TDR warrant.

Simply put, raw transmission data is not, without subscriber information,meaningful. In this regard I echo the words of Nordheimer J. (as he then was) in R. v. Telus Communications Co., 2015 ONSC 3964,wherein he said, at paragraph 46, that “phones do not commit crimes, people do”. I would also say, following the reasoning of theSupreme Court in R. v. Lyons, (SCC), [1984] 2 S.C.R. 633, 14 D.L.R. (4th) 482 at p. 668, that Parliament has definedtransmission data broadly so as to authorize, “by necessary implication and unavoidable inference”, a court to grant an assistance order

requiring telcos to reveal subscriber information. [ 58 ] Accordingly, it is my view that the definition of transmission data in

section 492.2(6) contemplates that raw transmission data obtained by a TDR can be made meaningful through the use of an assistance order requiring telcos to reveal the subscriber information associated with lawfully captured telephone numbers so as to give effect to the TDR warrants. [ 59 ] T he issue before the Court is whether the names and addresses associated with telephone numbers lawfully captured by a transmission data recorder can be obtained with the use of an assistance order.

This decision pertains only to the availability of subscriber information associated with telephone numbers lawfully captured by a TDR. It does not pertain to subscriber information associated with an internet protocol (IP) address. Subscriber information associated with an IP address could reveal a subscriber’s core biographical data, which was the concern in Spencer (see paragraph 24 ).

Revealing core biographical data is a more intrusive invasion of privacy and is akin to revealing the purpose of a communication, which is very different from revealing the subscriber information sought in this case, and in any event is specifically prohibited by

section 492.2(6)(c).

As well, I offer no opinion on the constitutionality of obtaining such information on a reasonable suspicion standard in light of the comments of the Supreme Court of Canada in Spencer . [ 60 ] 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 telcos 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. [ 61 ] 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 ( Lyons at page 339) . [ 62 ] In the result, a PCJ has jurisdiction to grant a

Part XV and the overall scheme of the Criminal Code . Accordingly, this matter is remitted to Provincial Court for a determination of whether an assistance order is appropriate on the specific facts of the Crown’s application. [ 63 ] The Court wishes to thank all counsel for their submissions on this important case. We particularly thank Amicus curiae for his submission which was prepared and delivered on short notice Green J.A. (Dissenting): [ 64 ] The fundamental question at issue in this appeal is what is the meaning and effect of the phrase “to give effect to” in

section 487.02 of the Criminal Code , relating to assistance orders, as applied in relation to the operation of a transmission data recorder warrant granted under

section 492.02 . [ 65 ] The choice facing the Court is to adopt an

interpretation that limits the scope of an assistance order to facilitating the effectiveness of the warrant or one that facilitates the police investigation to which the warrant relates. The latter

interpretation would enable information to be obtained that goes beyond the scope of the information that is available under the warrant itself. [ 66 ] A Provincial Court Judge as well as a superior court judge who reviewed the Provincial Court Judge’s decision on an application for certiorari and mandamus , both concluded that the court had no jurisdiction to grant an assistance order in conjunction with a transmission data recorder warrant (TDRW) where the purpose of the assistance order was to require telecommunications companies to provide customer name and address (CNA) information associated with the raw telephone numbers that would be disclosed as a result of the installation and use of the transmission data recorder (TDR) pursuant to the warrant. [ 67 ] They reasoned that inasmuch as this was additional information that would not be available from the transmission data that was to be intercepted, it was outside the scope of the warrant and could not therefore be considered “assistance” with respect to giving effect to the warrant.

They found that assistance orders are not amiable to assist the police investigation generally. I am fully in agreement with the clear, concise and well-articulated position of the two lower court judges. I would therefore dismiss the appeal. [ 68 ] My colleagues, on the other hand, would allow the appeal. Their position, boiled down to its essence, is that because allowing access to CNA information would significantly enhance the effectiveness of the raw data obtained from the TDRW, it can be considered “assistance” to “give effect to” the warrant.

With all due respect to my colleagues, this conclusion does violence to the proper principles of statutory

interpretation and, what is more, allows for an unwarranted and uncontrollable extension of the type of information that the police would be able to obtain in the course of executing a TDRW. It would extend it to obtaining any information that is not merely transmission data that is authorized by the warrant but to additional information that is not transmission data but which may provide assistance in interpreting the data obtained. If Parliament wanted to allow for this additional intrusion, it could have said so in unmistakable terms. It did not.

The effect of the position of my colleagues is to leave no principled basis for determining the type of, and the circumstances when, “assistance” can be provided by use of an assistance order. Scope of Appeal and Standard of Review [ 69 ] This appeal is brought under section 784(1) of the Criminal Code , which allows an appeal to this Court “from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari and prohibition.”

[ 70 ] Although

section 784 does not limit the grounds of appeal, this Court in R. v. A.B. , 2014 NLCA 8 , 346 Nfld. & P.E.I.R. 218 at para. 20 held that appellate review under

section 784 should consist of review for errors of law or jurisdiction. [ 71 ] The appeal is this case engages a determination of the jurisdiction of a judge to issue an assistance order under

section 487.02 of the Code which in turn involves interpreting the legal scope of such an order as provided for in

section 487.02. These matters attract a standard of review of correctness. Analysis (

a) General Approach [ 72 ] Freedom from unwarranted searches, along with freedom of speech and the rule of law, are at the top of the list of values protected in a democracy. The use of TDRWs and assistance orders involves intrusions into citizens’ affairs that would not be countenanced unless Parliament authorized them.

In assessing the degree of intrusion that Parliament was prepared to authorize in this case, one must situate the discrete issue in the broader principled context. [ 73 ] I start with the proposition that the police are not permitted to interfere with the liberty of any citizen or intrude on a citizen’s life, and in particular to have access to an individual’s personal information, except through public observation or in respect of which there is no reasonable expectation of privacy, unless they are authorized by law and in a Charter -compliant way. [ 74 ] It is true that there have been cases that have held, in the circumstances there considered, that there can be no reasonable expectation of privacy in CNA information (see for example, R. v.

Khan , 2014 ONSC 5664 ; R. v. Morrison , 2014 ONCJ 774 ). There are, however, other cases where a reasonable expectation of privacy in such information though, depending on the circumstances, perhaps diminished in scope in comparison to some other types of information, has been held to exist ( R. v. Mahmood , 2011 ONCA 693 , 107 O.R. (3d) 641 ; R. v. Nguyen, 2004 BCSC 72 , 20 C.R. 6 th 135 (BCSC) ). [ 75 ] The Supreme Court of Canada decision in R. v.

Spencer , 2014 SCC 43 makes it clear that whether there is a reasonable expectation of privacy in a given case must be determined by consideration of the “totality of the circumstances”, weighing a number of interrelated factors, including the claimant’s interest in the subject matter, the claimant’s subjective expectation of privacy in the subject- matter and whether that expectation was objectively reasonable. Each case will turn on its own facts.

In Spencer , where the issue was whether the police needed a judicial authorization to obtain subscriber information from an internet service provider, the Court, in the course of its analysis, concluded that in the circumstances of that case “there is a reasonable expectation of privacy in the subscriber information” (per Cromwell J. at para. 66). [ 76 ] The Court recognized that the concept of privacy encompassed the notion of anonymity and that keeping CNA information private is an important aspect of “guarding the link between the information and the identity of the person to whom it relates” (paragraph 46). [ 77 ] Thus, in some cases, CNA information will attract a reasonable expectation of privacy and in others it may not.

For example, where a telephone subscriber has a private name-private number listing, it could be said that he or she has a subjective expectation of privacy that could be considered to be objectively reasonable. Further, the very fact that name and address information is not publicly available for cell phones through white pages listings, as it would be for land line phones, enhances the ability to conclude that such numbers, in the case of cell phones, attract some level of privacy.

It is also possible that the nature of the telephones or their locations targeted by a TDRW could also reveal biographical information about the individuals calling in.

The use of assistance orders to acquire CNA information therefore engages consideration of their potential impact on issues of invasion of privacy. [ 78 ] (That said, it should be remembered that, in any event, whether there is or could be a reasonable expectation of privacy in CNA information on the part of subscribers is not directly in issue in the current case except to the extent that its presence may highlight some of the important issues at stake when considering the extent of the intrusion into citizens’ lives that Parliament could, on a proper construction of the authorizing legislation, be said to have authorized.

This is not a case where a specific search is being challenged as being unreasonable.) [ 79 ] The notion of limiting unwarranted intrusion into citizens’ affairs goes back at least to the great privacy cases of the eighteenth century. In Huckle v. Money (1763), 2 Wils K.B. 205 , 95 E.R. 768 , an action for trespass, assault and false imprisonment was brought by a printer who was arrested under a warrant issued by the Secretary of State.

The warrant authorized a King’s messenger to arrest the authors, printers and publishers of a publication, without naming or identifying any of them, and to seize all their papers and to bring them to the Secretary to be examined by him. A jury award of exemplary damages was upheld and a new trial refused. Sir Charles Pratt, Chief Justice of the Court of Common Pleas stated: … I think they have done right in giving exemplary damages.

To enter a man’s home by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour; it was a most daring attack made upon the liberty of the subject [ 80 ] In Entick v. Carrington , (1765) 2 Wils K.B.275, 95 E.R. 807 , it was held that the Secretary of State had no right to issue a warrant to enter Entick’s house to search for seditious papers and thus found the Secretary guilty of trespass.

Lord Camden, Chief Justice of Common Pleas observed: … he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such justification can be maintained by the text of the statute law, or by the principles of the common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant and the plaintiff must have judgment. (Emphasis added.)

[ 81 ] While these cases dealt with physical entry into residential premises, the principle extends beyond that today. See, for example, the comments of McLachlin C.J. and Fish J., dissenting, but not on this point, in R. v. Gomboc , 2015 SCC 55 , [2010] 3 S.C.R. 211 : [102] … When we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization.

We authorize neither undercover officers nor utility employees acting as their proxies to do so. [ 82 ] The issue in the current case is whether Parliament has, by its enactment of

section 487.02, manifested an intention to authorize the type of intrusions into citizens’ affairs that are at issue in this case thereby reducing the rights that they would otherwise have or, if not, whether, to borrow the words of Lord Camden in Entick v. Carrington , the “silence of the books is an authority against” the Crown in this instance. (

b) The Authorized Intrusion in this Case [ 83 ] Parliament has provided the police with a number of investigative tools to assist them with the investigation of crime by means of acquisition of information from or about individuals. One such tool is the TDRW under

section 492.02. If granted on reasonable grounds to suspect that an offence has been or will be committed and that transmission data will assist in the investigation of the offence, a TDRW authorizes a peace officer to obtain “transmission data” by means of a TDR. A TDR is defined as “a device, including a computer program … that may be used to obtain or record transmission data or to transmit it by a means of telecommunication” (section 492.2(6)). “Computer program” is itself defined by

section 342.1(2) as “computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function.” [ 84 ] The scope of a TDRW that may be issued is limited by

section 492.2(2) as follows:

(2) Scope of Warrant – The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the transmission data recorder, including covertly. [ 85 ] The scope of the police authority to act pursuant to the warrant is therefore limited to installing, using, maintaining, monitoring and removing the TDR. The purpose of those activities is to obtain “transmission data”. That term is defined by

section 492.2(6) as: “transmission data” means data that (

a) relates to the telecommunication functions of dialing, routing, addressing or signaling; (

c) does not reveal the substance, meaning or purpose of the communication. [ 86 ] As will be explained more fully later in these reasons, the assistance order is not a stand-alone provision authorizing the obtaining of information. It is dependent upon another authorization, order or warrant and is designed, as its name suggests, to “assist”. It cannot by its operation extend the authorization of the warrant. If information is not within the scope of the TDRW then resort cannot be had to an assistance order to obtain it, because that would extend the reach of the TDRW beyond that which it authorizes the police to collect. (

c) Approach to Statutory

Interpretation [ 87 ] The meaning and legal effect of a statutory enactment is discerned “by examining the words of the statute in their entire context and in their grammatical and ordinary sense, in harmony with the statute’s scheme and object” (per Brown J. in British Columbia v. Philip Morris International, Inc. , 2018 SCC 36 at para. 17 ). In short, a court must consult all relevant sources of meaning. The inference drawn from those sources of meaning, reconciled to the extent possible, is conveniently referred to as the intention of the legislature. [ 88 ] The approach to be taken is buttressed by

section 12 of the

Interpretation Act , R.S.C. 1985, c. I-21 ( Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559 , per Iacobucci J. at para. 26), which reads: Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. [ 89 ] The emphasis on regarding the enactment as “remedial” requires an inquiry into the problem or mischief that the statute was attempting to rectify. That will give insight into the purpose or object of the legislative act. The requirement to give each enactment a “fair, large and liberal” construction and

interpretation directs a focus not only on the actual words used and how they would ordinarily be understood but also on the statutory context in which the words are used and with reference to the perceived purpose of the provision. The requirement that the process be conducted in a manner that best ensures the attainment of the objects of the provision emphasizes that, although an examination of the words may be the starting point, the final result is not to be dictated by an abstract dictionary definition of the bare words.

Rather, the legislation should be interpreted in a manner that will allow the words to be read, if possible, in a way that achieves the underlying object of the legislative exercise.

[ 90 ] It is therefore not simply an exercise in “interpretation” of the words (an exercise in reading and understanding) but it also involves “construction” as well (a decision reached by the court, not dictated by the legislature). Construction is a process that is much more nuanced and contextualized than merely reading words and phrases. It not only requires giving meaning but also legal effect to the act of the legislature in a manner that is perceived as fair and just by the court. [ 91 ] The court must, then, consider (

a) the words used; (

b) their statutory context; (

c) the problem or mischief to which the enactment was directed; (

d) the legislative history of the implementation and modification of the provision in question; and (

e) the legislative record to determine what the proponents of the bill were attempting to achieve. Each of these sources must be reconciled to the extent possible to arrive at the best defensible construction possible. [ 92 ] The starting point, however, is the language chosen by the legislator. It is that language, used in context, which is the chief instrument used to convey meaning and intention. (

d) Interpretative Analysis (

i) Language [ 93 ] It is accepted that the operation of the TDR will not produce CNA information, which is what the police are seeking in this case. To get that information, the police sought the assistance order directing the telecommunications companies to supply it in conjunction with the electronic data that was being accessed by the TDR. [ 94 ] The scope and limits of an assistance order are governed by

section 487.02: 487.02 Assistance Order – If an authorization is given under

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