2015 MBPC 70, 2015 MBPC 70

CITE: 2015 MBPC 70 IN THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: An Application for a General Production Order pursuant to

section 487.014 and a Production Order for Financial Data pursuant to

section 487.018 Criminal Code made by a Winnipeg Police Service officer _____________________________________________________________ REASONS FOR GRANTING PRODUCTION ORDERS _____________________________________________________________ 1 . On December 9, 2015, Detective Sergeant (D/Sgt.) Shaun Veldman, a Winnipeg Police Service supervisor in the Commercial Crime Unit applied to the Provincial Court for a production order. In his Information to Obtain (ITO), he requested a “written direction” to assist in clarifying the process that should be followed when police are applying for information that is listed in a production order for financial data,

section 487.018 as well as additional information (that cannot be authorized under

section 487.018) under a general production order,

section 487.014. 2 . Police had applied twice previously for the same production orders. Both had been rejected by a Judicial Justice of the Peace (JJP), in part, because the requesting officer had not particularized the authority for the various types of information requested and because the officer had not provided two draft production orders – one pursuant to

section 487.014 and one pursuant to

section 487.018. In each case, the police were seeking one general production order for all of the information. A Production Order for Financial Data,

section 487.018 3 . When police are able to establish a reasonable suspicion that an offence has been or will be committed under

an Act of Parliament, that the data is in possession of a financial institution and that the data will assist an investigation they can apply for a production order pursuant to

section 487.018.

Section 487.018 (1) provides that a financial institution is to produce a document setting out: (

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. 4 . In order to confirm the identity of the person named in an order or an account holder

section 487.01(2) allows for further production of: (

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

b) the person’s current address; and (

c) any previous addresses of that person. 5 . It can be seen that the production order for financial data can only be used to have produced limited identifying information. This production order can only be directed at a financial institution. A General Production Order,

section 487.014 6 . The general production order is directed to any person to produce copies of documents or produce copies of data in their possession or control when police are able to establish reasonable grounds to believe an offence has been or will be committed and the documents or data will afford evidence relating to the offence.

7 . It can be seen that a general production order is available when police are able to satisfy the higher standard of reasonable grounds to believe. It is not limited in terms of the types of data that can be produced. It can be directed to “any person” and is not limited to financial institutions. 8 .

Section 487.014(1) opens with the words “Subject to

section 487.015 to 487.018…”. Those

section numbers are a reference to production orders for specific information which can be obtained on a reasonable suspicion standard. These words did not appear in the previous legislation. It is the words “subject to” the specific production orders that have caused

interpretation and process confusion. Can a

section 487.014 Production Order be Issued to include data that could be acquired under

section 487.018? 9 . D/Sgt. Veldman’s ITO seeks an “Account holder’s name, birth date, address, phone number(s)” as well as a list of further documents including account transaction records, surveillance video and copies of account opening documents. These additional documents, including the requested phone number are beyond the authority of

section 487.018 and so he relies on

section 487.014. In his ITO D/Sgt. Veldman says he is making an omnibus application under

section 487.018 and 487.014 but asking that only orders pursuant to

section 487.014 be authorized for information in possession of the Tangerine Bank and Bank of Nova Scotia. 10 . He relies on Alberta (Attorney General) v. Provincial Court of Alberta , 2015 ABQB 728 to support his position. In that case, police applied under

section 487.014 for information, some of which is included in

section 487.018 “name, address… date of birth” (para. 53). In Alberta police were unable to apply under

section 487.018 initially because they did not know the names or the account numbers in that investigation. The provincial court judge rejected the production order and held that the police were first to apply under

section 487.014 in order to have the account numbers produced, then apply in a separate application for the specific information in

section 487.018 . 11 . On a review for certiorari and mandamus , Justice Read applied principles of statutory

interpretation and concluded that police could seek production orders under both sections 487.014 and 487.018 at the same time, provided that both provisions were being complied with (para. 103). Justice Read ruled that to find otherwise, as the Court below had, “would render the process needlessly cumbersome and time consuming” (para. 104). The Court concluded that all of the information police were seeking could be obtained at the same time and directed the court below to make both a

section 487.014 order and a

section 487.018 production order for the specific information delineated in that

section of the Criminal Code (para. 106). I find this reasoning persuasive and I adopt it. 12 . This is the approach that was directed by JJP Harvey on the first application for a production order in this case. As indicated by JJP Harvey, one ITO can be sworn for both production orders but the application must make it clear what authority the police are relying upon. 13 . There is a good, practical reason for this. It reminds both judicial officers and the applying police officer that certain information such as that in a

section 487.018 production order for financial data can be authorized on reasonable suspicion. This is basic identifying information that has little impact on a reasonable expectation of privacy. But additional information, such as surveillance videos or photographs like those requested in this case, attract a higher expectation of privacy and therefore a higher threshold of reasonable grounds to believe must be met before the order is granted. 14 .

While it does not arise in this case, one can conceive of an application where police are seeking both basic financial information and more detailed information believing they have met the standard of reasonable grounds to believe. A judicial officer might find on review that only a reasonable suspicion exists and authorize the production of only basic identifying information and not the more detailed information. Thus maintaining the distinction between the two types of orders provides greater clarity and transparency as to what was supported and authorized by a judicial officer. 15 .

It is surprising that in those cases where the police are able to satisfy the higher standard of reasonable grounds to believe and the information they seek is beyond the restrictive scope of 487.018 that they cannot just seek one order under 487.014. There is a common sense attraction to this position – which is the position of D/Sgt. Veldman. 16 . But an analysis of the wording of

section 487.014 demonstrates that Parliament chose not to leave that option open to the police. I agree with Justice Read that the “subject to” words of the current

section 487.014 have to have some meaning, particularly when they have been added by Parliament. These words did not appear in the previous legislation. Justice Read concluded: “…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” (para. 100). 17 . In addition to the principles of statutory construction applied by Justice Read in Alberta , reasoning which I adopt, there are other principles of statutory construction which lead me to conclude that in cases like this one, the two types of production orders must be sought. 18 .

In Sullivan on the Construction of Statutes (Fifth Edition), Ruth Sullivan (LexisNexis Canada 2008) the author notes that provisions of the same legislation “are meant to work together, both logically and teleologically, as parts of a functioning whole.” (page 325) In order to achieve that cohesive result there is a presumption of overlap: When two provisions are applicable without conflict to the same facts, it is presumed that each is meant to operate fully according to its terms. So long as overlapping provisions can apply, it is presumed that they are meant to apply. (page 326) 19 .

Sullivan notes that in some cases there is an attempt at an express legislative solution: Where the legislature perceives the possibility of conflict among provisions, it may provide its own solution by expressly indicating which provision is to prevail. For example, provisions may begin with the words ”subject to

section x”….( Sullivan , page 334). 20 . This express legislative solution can be seen in the current

section 487.014. The resolution of the conflict between

section 487.014 and 487.018 at issue in this case can be reconciled - both production orders can issue if the application satisfies the prerequisites for both. 21 . I also find support for this

interpretation as it results in a process that is similar to one in complex or wiretap investigations. In Wiretapping & Other Electronic Surveillance: Law and Procedure , Robert W. Hubbard, Peter M. Brauti, Scott K. Fenton (Canada Law Book) the authors say: The fact that each of the authorizations permitted by the Code has distinct prerequisites does not mean that investigations rely on them as distinct tools unto themselves. On the contrary, one investigation may employ several of these investigatory tools simultaneously.

Because of this, it makes little sense to require multiple applications, each relying on similar material, before different authorizing justices at different times. In fact, it is quite common, if an investigation requires multiple orders, to make the applications together before one justice, at one time. In R. v. Todorov (2008), 80 W.C.B. (2d) 670 , 2008 ONCA 849 , at para. 4 , the court endorsed using a single information when seeking a series of warrants that relate to the same investigation. A single application for multiple orders is known as an omnibus application. 22 .

In Manitoba, these omnibus applications often lead to omnibus orders in the Court of Queen’s Bench. That is, multiple warrants can issue from one ITO. Conclusion 23 . When police are applying for a financial data production order and a general production order, they can file one application for both orders at the same time. Their application should be clear as to which standard they are satisfying and which documents they are seeking under which order.

They should then supply the proposed production orders using both forms as prescribed in the section. (I am not deciding in this decision whether an omnibus order would satisfy the requirements of the Code .) 24 . I have concluded that D/Sgt. Veldman has established reasonable grounds to believe that the offence of Fraud over $5000 has been committed. The statement from the complainant is corroborated by the information from the financial institutions confirming the e- Transfers to accounts in the Bank of Nova Scotia and Tangerine Bank. The e-Transfers were for insurance on a loan that never materialized. 25 .

I have deleted from the proposed general production orders that were supplied by D/Sgt. Veldman the specific information that is covered by

section 487.018. It is trite to say that I am satisfied on the lower standard of reasonable suspicion that the identifying financial information can be ordered to be produced as well. I will also authorize this specific information – name, birth date and address for the accounts that received the e-Transfers - if provided with 487.018 production orders. Minor Discrepancies

26 . There are a number of minor discrepancies which I have noted in my review of the ITO. I will list them here as I have considered them but have decided that they are not detrimental to my decision to grant the production orders: a. The ITO refers to the Alberta decision and says it is attached as Exhibit 1. In fact the decision is attached as Exhibit A. The Alberta decision is referenced by citation in the ITO so this is a typographical error that is inconsequential. b. In paragraph 20(

b) Lucien Desilets reported to police that he had sent an e-Transfer on October 1, 2015 in the amount of $2000 from his Assiniboine Credit Union account. In paragraph 21, a representative of Assiniboine Credit Union reports that on October 1, 2015 an e-Transfer was made from Mr. Desilets’ account in the amount of $1978. I have inferred that although these amounts are different, they refer to the same transaction. It may be that Mr. Desilets was rounding up when he spoke to the police or he may have been assessed some service charge which is not referred to in the ITO.

In any event, given that the sender, the date and the destination ( hannahmiller0226@gmail.com ) are the same and the dollar amounts are close in value, I have concluded that they refer to the same transaction. In future applications, it would be helpful for the reviewing judicial officer to have some explanation, if one exists, to explain such a discrepancy. c. The difference noted in the preceding paragraph has an impact on the total loss experienced by Mr. Carroll as set out in paragraph 16 (

n) where his total loss is noted as $6897.00. When the amounts of the e-Transfers confirmed by the financial institutions are added up, along with the two Western Union money transfers (totaling $1900), the total is $6875. Since both amounts are over $5000, I am satisfied that the ITO has established reasonable grounds to believe that the offence of Fraud Over $5000 as noted in D/Sgt. Veldman’s ITO is substantiated. d. In paragraph 11 of the Overview, it indicates that Mr. Carroll sent two separate transfers via Western Union on October 1, 2015. This is not consistent with paragraphs 16(

e) and (

g) which indicate that one Western Union money transfer was sent on September 29 th and one was sent on September 30 th . This discrepancy was pointed out by JJP Cuthbert-Buchanan in her reasons for denial on December 2, 2015. This should have been corrected in the third ITO. I have concluded this discrepancy is not material to my decision because the Western Union money transfers are not the subject of the production orders I am granting. Dated at Winnipeg, Manitoba this 16 th day of December, 2015. “Original signed by” ______________________________ ACJ Anne Krahn