In determining whether an individual maintains a reasonable expectation of privacy over the item being searched, a number of factors need to be assessed, such as possession or control of the property or place being searched and the ability to regulate access to it.
For instance, there is no reasonable expectation of privacy over tweets posted on a public twitter account, since these posts are readily accessible to any user on the internet. On the other hand, an individual maintains a reasonable expectation of privacy in their home, as it is the place where most of their intimate and private activities take place.
Individuals maintain a reasonable expectation of privacy over their cellphone transmission data, since it has the capability to expose personal information about them, such as their movements, people they communicate with, and the nature of their communications. Consequently, law enforcement officials are prevented from arbitrarily collecting cellphone transmission data.
In order for the police to acquire cellphone data from telephone service providers, such as Telus or Rogers, they must obtain a production order.
A production order is similar to a search warrant, which allows the police to search and seize items. When a person is presented with a production order by police, they are required to provide the information being sought. There are specific production orders that are required to obtain certain precise information, such as cellphone transmission data and tracking data. Transmission data includes details regarding the origin, destination, date, time, duration, and type of communication, but does not include the contents of those communications. In contrast, tracking data provides the location of the thing or individual in question.
Before a production order for transmission or tracking data is issued, the police must satisfy the Court that 1) there are reasonable grounds to suspect that an offence has been or will be committed under the Criminal Code or any other Act of Parliament, and 2) that the document or data being sought will yield evidence in relation to the offence being investigated.
Well, here’s a hypothetical scenario. Let’s say you have recently travelled abroad and are returning back to Canada. As a result of the Emergency Order that was announced on March 25, 2020, all persons entering Canada are required to self-isolate for 14 days under the federal Quarantine Act. This law requires that you remain in your residence at all times, unless you have a medical emergency. Failure to follow this order is considered an offence. Now, let’s presume you decide to go for walks, do your groceries, and visit family during this mandatory 14-day isolation time period. Your neighbour notices you breaking the rules, and decides to make a complaint to law enforcement agencies.
Under these circumstances, the police could request a production order for historical cellphone tracking data in the possession of your telephone service provider, as there are reasonable grounds to suspect that you committed an offence contrary to the Quarantine Act. If the production order is issued, and the records corroborate your neighbour’s complaint, you could be charged with (and later found guilty of) failure to comply with the Emergency Order under the Quarantine Act.
This offence carries a maximum penalty of $750,000 and/or six months imprisonment.