Warrant for Transmission Data Recorder: Difference between revisions

Latest revision as of 10:34, 26 July 2024

This page was last substantively updated or reviewed January 2024. (Rev. # 95986)

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General Principles

Transmission data is a type of metadata that accompany's an electronic transmission. It is non-content information that is used by software to establish and maintain a link between two places.^[1] If police seek record this type of data with a recorder, the police need a transmission data recorder warrant.

Definition of Transmission Data

492.2
[omitted (1), (2), (3), (4), (5) and (5.1)]

Definitions

(6) The following definitions apply in this section.
...
"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) [unauthorized use of computer – definitions], 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.

"transmission data recorder" means a device, including a computer program within the meaning of subsection 342.1(2) [unauthorized use of computer – definitions], that may be used to obtain or record transmission data or to transmit it by a means of telecommunication.
1993, c. 40, s. 18; 1999, c. 5, s. 19; 2014, c. 31, s. 23; 2019, c. 25, s. 208.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 492.2 (6)

Expectation of Privacy

Transmission data has been found to have a limited reasonable expectation of privacy.^[2]

↑ see 492.2(6)
↑ R v Cody, 2007 QCCA 1276 (CanLII), 228 CCC (3d) 331 (Que. C.A.), at paras 15, 25-26(complete citation pending)

Authorization

Warrant for transmission data recorder

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.

Scope of warrant

(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.

Limitation

(3) No warrant shall be issued under this section for the purpose of obtaining tracking data. [omitted (4) and (5)]

Execution in Canada

(5.1) A warrant issued under subsection (1) [warrant for transmission data recorder] may be executed at any place in Canada. Any public officer or peace officer who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.
[omitted (6)]

1993, c. 40, s. 18; 1999, c. 5, s. 19; 2014, c. 31, s. 23; 2019, c. 25, s. 208.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 492.2 (1), (2), (3), (4), (5), and (5.1)

Standard of Proof

The ITO supporting an application for an order under s. 492.2(1) "must show reasonable grounds to suspect that an offence has been committed and reasonable grounds to suspect that information that would assist in the investigation" (cleaned up).^[1] This standard is lower than what is required for wiretaps.^[2]

Constitutionality

The standard of proof of reasonable suspicion is constitutional.^[3]

↑ R v Tiessen, 2023 ONCA 803 (CanLII), per curiam, at para 7
↑ , ibid.
↑ R v Otto, 2019 ONSC 2473 (CanLII), per Di Luca J

Duration

492.2
[omitted (1), (2) and (3)]

Period of validity

(4) Subject to subsection (5) [transmission data recorder – period of validity – organized crime or terrorism offence], a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.

Period of validity — organized crime or terrorism offence

(5) The warrant is valid for the period specified in it as long as that period ends no more than one year after the day on which the warrant is issued, if the warrant relates to

(a) an offence under any of sections 467.11 to 467.13 [offences relating to criminal organizations];

(b) an offence committed for the benefit of, at the direction of, or in association with a criminal organization; or

(c) a terrorism offence.

[omitted (5), (5.1) and (6)]

1993, c. 40, s. 18; 1999, c. 5, s. 19; 2014, c. 31, s. 23; 2019, c. 25, s. 208.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 492.2 (4) and (5)

Other Definitions

492.2
[omitted (1), (2), (3), (4), (5) and (5.1)]

Definitions

(6) The following definitions apply in this section.
"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.
"judge" means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.
"public officer" means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
...
1993, c. 40, s. 18; 1999, c. 5, s. 19; 2014, c. 31, s. 23; 2019, c. 25, s. 208.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 492.2 (6)

Repealed Version

Warrant for Transmission Data Recorder (Repealed)

@@ Line 1: / Line 1: @@
-{{Currency|January 2020}}
+[[fr:Mandat_pour_enregistreur_de_données_de_transmission]]
+{{Currency2|January|2024}}
 {{LevelZero}}{{HeaderWarrants}}
 ==General Principles==
+Transmission data is a type of metadata that accompany's an electronic transmission. It is non-content information that is used by software to establish and maintain a link between two places.<Ref>
+see 492.2(6)
+</ref>
+If police seek record this type of data with a recorder, the police need a transmission data recorder warrant.
+; Definition of Transmission Data
+{{quotation2|
+.2 <br>
+{{removed|(1), (2), (3), (4), (5) and (5.1)}}
+; Definitions
+(6) The following definitions apply in this section.<br>
+...<br>
+'''"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) {{AnnSec3|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.
+'''"transmission data recorder"''' means a device, including a computer program within the meaning of subsection 342.1(2) {{AnnSec3|342.1(2)}}, that may be used to obtain or record transmission data or to transmit it by a means of telecommunication.
+<br>
+{{LegHistory90s|1993, c. 40}}, s. 18;
+{{LegHistory90s|1999, c. 5}}, s. 19;
+{{LegHistory10s|2014, c. 31}}, s. 23;
+{{LegHistory10s|2019, c. 25}}, s. 208.
+{{Annotation}}
+|{{CCCSec2|492.2}}
+|{{NoteUp|492.2|6}}
+}}
+; Expectation of Privacy
+Transmission data has been found to have a limited reasonable expectation of privacy.<ref>
+{{CanLIIRP|Cody|1t14s|2007 QCCA 1276 (CanLII)|228 CCC (3d) 331 (Que. C.A.)}}{{atsL|1t14s|15|, 25-26}}{{fix}}<br>
+</ref>
+{{reflist|2}}
+===Authorization===
 {{quotation2|
 ; Warrant for transmission data recorder
@@ Line 28: / Line 64: @@
 }}
+; Standard of Proof
 The ITO supporting an application for an order under s. 492.2(1) "must show reasonable grounds to suspect that an offence has been committed and reasonable grounds to suspect that information that would assist in the investigation" (cleaned up).<ref>
 {{CanLIIR|Tiessen|k1hf9|2023 ONCA 803 (CanLII)}}{{TheCourtONCA}}{{atL|k1hf9|7}}
@@ Line 35: / Line 72: @@
 </ref>
+; Constitutionality
+The standard of proof of reasonable suspicion is constitutional.<ref>
+{{CanLIIR|Otto|j16dw|2019 ONSC 2473 (CanLII)}}{{perONSC|Di Luca J}}
+</ref>
 {{reflist|2}}
@@ Line 63: / Line 103: @@
 {{reflist|2}}
-===Definitions===
+===Other Definitions===
 {{quotation2|
 .2 <br>
@@ Line 72: / Line 112: @@
 '''"judge"''' means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.<br>
 '''"public officer"''' means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.<br>
-'''"transmission data"''' means data that
+...<br>
-:(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) {{AnnSec3|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.
-'''"transmission data recorder"''' means a device, including a computer program within the meaning of subsection 342.1(2) {{AnnSec3|342.1(2)}}, that may be used to obtain or record transmission data or to transmit it by a means of telecommunication.
-<br>
 {{LegHistory90s|1993, c. 40}}, s. 18;
 {{LegHistory90s|1999, c. 5}}, s. 19;
@@ Line 87: / Line 122: @@
 }}
-==General Principles (Repealed Version)==
+==Repealed Version==
-Courts have generally accepted that there is a reduced expectation of privacy in the phone numbers that persons dial.<ref>
+* [[Warrant for Transmission Data Recorder (Repealed)]]
-{{CanLIIRx|Croft|g1pvx|2013 ABQB 644 (CanLII)}}{{perABQB|Burrows J}}<br>
-{{CanLIIRP|Cody|1t14s|2007 QCCA 1276 (CanLII)|228 CCC (3d) 331}}{{perQCCA|Hilton JA}}<br>
-see also [[Reasonable Expectation of Privacy]]<br>
-</ref>
-Section 492.2 provides authority to a justice to issue a warrant allowing for the installation, maintenance and removal of a number recorder on any telephone or line and to monitor the recorder.
-{{quotation2|
-; Information re number recorder
-.2 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
-:(a) to install, maintain and remove 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 possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order.
-<br>
-; Other provisions to apply
-(3) Subsections 492.1(2) and (3) apply to warrants and orders issued under this section, with such modifications as the circumstances require.
-<br>
-{{removed|(4), (5), (5.1) and (6)}}
-{{LegHistory90s|1993, c. 40}}, s. 18; {{LegHistory90s|1999, c. 5}}, s. 19.
-|{{CCCSec2|492.2}}
-|{{NoteUp|492.2|1|2|3}}
-}}
-Under s. 292.2, the warrant may only be issued where the justice has "reasonable grounds to suspect" that an offence has been or will be committed.
-The nature of the data collected by the DNR does not amount to a "private communication" within the meaning of the wiretap provisions and accordingly does not require a Part VI wiretap authorization.<Ref>
-Croft<br>
-{{CanLIIRP|Lee|1v9z2|2007 ABQB 767 (CanLII)|427 AR 76}}{{perABQB| Sulyma J}}<br>
-</ref>
-; General Terms
-Section 2 defines "[[Peace Officers|peace officer]]", "[[Criminal Code and Related Definitions|justice]]".
-; Number Recorder
-{{quotation2|
-.2<br>{{ellipsis}}
-; Definition of “number recorder”
-(4) For the purposes of this section, '''"number recorder"''' means any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or is intended to be received.
-<br>
-{{LegHistory90s|1993, c. 40}}, s. 18; {{LegHistory90s|1999, c. 5}}, s. 19.
-|{{CCCSec2|492.2}}
-|{{NoteUp|492.2|4}}
-}}
-; Constitutionality
-The standard of "reasonable suspicion" has been held constitutional due to the low expectation of privacy associated with the information recorded.<ref>
-{{supra1|Croft}}<br>
-{{supra1|Cody}}<br>
-</ref>
-{{reflist|2}}
 ==See Also==