Case information

Charter of Rights — Criminal law — Evidence — Production orders — Cell tower records — Burden of proof — Whether the lower courts misapplied the standard for prior authorization of production orders covering cell tower records — Whether the lower courts erred in holding that a cell tower production order could have issued — Whether the lower courts erred in holding that information collected under that cell tower order should not be excised from the applications for three subsequent production orders and in holding that the evidence collected under that order and three subsequent production orders should be admitted under the Charter, s. 24(2) — Whether the lower courts erred in holding that police can rely on speculation about cell phone use during offences to seek judicial authorization for cell tower production orders — Whether the lower courts erred in holding that a Charter applicant has an evidentiary burden to adduce evidence of the amount of information actually received by police under a production order.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Between March and August 2009, a group of people, over several nights, stole a number of loaded tractor trailers containing various products. In some cases, the truck driver or a security guard was confined and held. The Crown advanced the theory that the robberies were committed by the same criminal group, with some variation in group membership. The police believed that one truck driver had been followed for some time by at least two vehicles and five men, and that the men following had used cell phones to communicate. They sought a production order for cell phone records from towers along the truck’s route. The warrant requested data from six towers on two dates, for specified time periods (40, 10, 15 and 20 minutes), and the subscriber records relevant to those time periods, including the date the service was initiated or terminated if the current subscriber was different from the registered subscriber. The production order was issued in June 2009. It led the police to suspect that the applicant Mr. Pathmanathan and others had been involved in one robbery. A further production order was issued in August 2009 in relation to three phone numbers identified in the June production order. The applicant Mr. Kanthasamy and others were arrested. Incident to the arrests, cell phones were seized from Mr. Kanthasamy and another. A police officer the conducted improper searches of the seized phones. Further productions orders were issued in September and November 2009 based, at least in part, on information obtained in the improper searches. The Crown conceded that, under s. 24(2) of the Charter, the information obtained from the September and November orders should be excluded from the evidence. Prior to trial, four accused entered guilty pleas, and three of them testified at trial.

The trial proceeded before a jury over approximately 60 days in 2015 and 2016. The jury returned with 61 verdicts, convicting Mr. Pathmanathan and Mr. Kanthasamy on several counts. The Court of Appeal dismissed the conviction appeals, but granted Mr. Pathmanathan and two others leave to appeal sentence. It allowed their appeals as to sentence and reduced their sentences.