International Law

Tele-Mobile Co. v. Ontario

If the police want documents or data records from third parties, which they are entitled to obtain under new provisions in the Criminal Code, those third parties cannot ask for compensation. (More at the CBC.)

The issue in this case is whether a judge has the power to make it a term or condition of a production order that the police compensate a third party for expenses incurred in complying with the order. In my view, there is no power to order compensation under the production order scheme. Where the financial costs of compliance are unreasonable, the remedy lies in a full or partial exemption from the production order.

Apparently the cost of compliance for Telus in the present case was going to be a whopping $662,000. How is that possible? How much does Telus pay its data clerks?

In any event, the interesting thing about this case, I found, was the test for unreasonability. The test itself was broadly construed as requiring an applicant to demonstrate the the expenditure is “significant to its financial health.” Justice Abella, writing for the Court, was not in any mood to clarify:

In essence, the financial consequences must be so burdensome that it would be unreasonable in the circumstances to expect compliance. This, I readily acknowledge, is a somewhat tautological explanation, but I see no purpose in offering alternative definitions for a term so well known and understood as having a fact-specific compass. What is reasonable will be informed by a variety of factors, including the breadth of the order being sought, the size and economic viability of the object of the order, and the extent of the order?s financial impact on the party from whom production is sought. Where the party is a repeated target of production orders, the cumulative impact of multiple orders may also be relevant.

In the present case the way “reasonability” and “financial health” was gauged was as a percentage of Telus’s earnings and net income. I’m not sure where that came from. And so while the resulting $662,000 was “no mere bagatelle” it was seen as “the equivalent of a person earning $100,000 a year having to spend up to $58 to comply with jury duty.” More to the point, especially since I’m not sure how far you can extend that analogy, it was seen as the cost of doing business for a “good corporate citizen.” That should make shareholders feel a warm glow.

Full post as published by Criminal Review on March 28, 2008 (boomark / email).