Warrant for Transmission Data Recorder
| This page was last substantively updated or reviewed January 2024. (Rev. # 95986) |
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]
- 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]
- 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]
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]