Production Orders: Impending Tools of Mass Investigation?

An interesting decision came out in the twilight of 2011. The Vancouver Sun v. British Columbia, 2011 BCSC 1736 is worth a look not only because it is the first of what is likely to be many cases adjudicating fallout from last year’s Stanley Cup riot in Vancouver, but also for its utilization of production orders to get useful information from third parties unrelated to the criminal events under investigation. As upcoming lawful access legislation is expected to create a number of new production orders (largely focused on acquiring telecommunications data from third parties), this case may provide a window into what is to come.

Vancouver Sun involves an attempt by police to compel various news organizations to produce certain photos believed to be useful in ongoing efforts to identify all miscreants involved in the sadly destructive and at times violent riot that followed the Vancouver Canuck’s tragic exit from the Stanley Cup finals last summer. A number of news organizations challenged the resulting ex parte production order secured by the police, which would have forced these organizations to hand over any footage taken on the day of the hockey riots and within a designated geographic area.

The media groups challenged the production order on a number of grounds, claiming the order was too broad in scope and threatened the freedom of the press. They sought an exemption from the order or, alternatively, that the order be quashed.

It turns out that the existing production orders are difficult to challenge, quite broad in scope, and quite broad in scope. This raises legitimate concerns for upcoming the production orders envisioned in lawful access legislation, which will employ broader standards in more scenarios related to potentially sensitive information.

Ex Parte & not subject to strict review

The production order provisions currently in the Criminal Code include a provision permitting third parties to apply for an exemption from the scope of the order production would be “unreasonable” (Criminal Code s. 487.015(b)). The media organizations sought an exemption on the grounds that the orders were “premature, overly broad and capture vast amounts of material not relevant to any crime; that they fail to account for the special position of journalists requiring proof of true necessity and absence of alternate sources” (para 21).

The court rejected these grounds, citing Tele-Mobile Co. v. Ontario, 2008 SCC 12 in its conclusion that the ‘unreasonableness’ referred to in the exemption clause is limited to considerations of practical impact, cost of compliance, etc. Substantive factors going to the validity of the order cannot contribute to ‘unreasonableness’ under s. 487.015(b).

This meant the substantive concerns with the ex parte order would be considered under the Garofoli standard of review: based on the record before the authorizing judge, could that justice, acting judiciously, have granted the order.

Production Standards are very broad

The standard employed in production orders at issue is one of ‘reasonable grounds to believe the data sought will afford evidence respecting the commission of an offence’. This is higher than the ‘reasonable ground to suspect information will assist an investigation’ standard that will feature in a number of the new proposed lawful access orders.

The applicants in Vancouver Sun argued the production orders failed to meet this standard because much of the material sought will not disclose evidence of criminal activities. The footage was recorded “within a large area of downtown before and after the riot…the [production order] does not adequately connect the specific images recorded to the offences committed.” While there are certainly images of offences being committed within the materials at issue, much of the footage relates to innocent activity. So untargeted an order is essentially a fishing expedition.

While the production orders were eventually rejected on a technicality, Justice Harris did not accept the majority of substantive overbreadth arguments. The question is not whether all the material sought will provide evidence of individuals actually committing offences (para. 46). Rather, the test is one of whether there are grounds to believe:

“…the material sought would, not just taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences.” (para 48 quoting CBC v. British Columbia, [1994] 32 CR (4th) 256 (B.C. S.C.))

What this means is that photos that are not directly linked to any criminal incident, but rather show people in the general vicinity during the general time window of the riot (give or take) are within scope because it is “relevant to the issue of identification of those involved in committing offences, even where the image…is captured in a different place from where the offence was committed.” (para. 39)

Presumably, the images collected will feed the VPD’s growing image-fuelled riot investigation apparatus which currently includes a ‘tag your friends‘ website and, apparently, the use of facial recognition techniques built in to ICBC’s biometric-enabled drivers license database.

Charter assistance may be challenging

As section 8 of the Charter was not raised, this was a case of statutory interpretation alone. Given that the images were taken in public, one wonders whether a reasonable expectation of privacy could have been effectively asserted by any of those included in the extensive footage covered by the production orders. Canadian laws have always recognized some, albeit potentially reduced, expectations of privacy in easily observable public activities (R. v. Wise, 1 SCR 257). Recent case law from the U.S. Supreme Court suggests that extensive or pervasive public surveillance might trigger stronger privacy expectations than would otherwise be the case (see US v. Jones, 565 U.S. __, (2012)). Regardless, the need to show no more than a tangential connection between the images (and the people in them) on the one hand, and any actual offences on the other might be a cause of concern.

Justice Harris recognizes this. He states in his judgement that he was initially “concerned by both the geographic and temporal scope of the production orders” (para 52) in light of the time and location of actual offences, and that the request “struck [him] as broad.”

Unfortunately, these concerns were not enough to second guess the Justice of the Peace who initially issued the order. This demonstrates a serious deficiency with ex parte orders in general — they cannot be challenged in the first instance, and by the time a second instance arises, it is no longer a matter of ‘correctness’, but whether the initial decision was ‘reasonable’. As production orders are almost by definition ex parte, these types of deficiencies in breadth of review are likely to recur.

Most troubling is the impending application of these types of production orders to a wide range of Internet and mobile data, including tracking (GPS) data and interaction (transmission) data. Not only do these new types of production orders afford access to vast and potentially very sensitive types of data, but they will be available, via production order, at a significantly lower standard than that employed above. Police need only demonstrate a ‘reasonable suspicion’ that the material sought “will assist” in an investigation. Working backwards “somewhat broad” orders approved on ex parte application in Vancouver Sun. We may be moving closer to those ‘fishing expeditions’ our system of constitutional and legislative safeguards are intended to avoid.

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