The Supreme Court of Canada released today its decision in Telus Mobility dealing with the issue of criminal production orders. In Telus the Toronto Police were investigating a murder and sought the production of cellular telephone records for the suspect. Unfortunately, by the time that the police determined the person to be a suspect, the cell phone records had become old and had been removed from Telus’ system and sent to storage on backup tapes. The police investigation would require Telus to retrieve the tapes from storage, reload them onto the system and sort through the data to determine which records related to the suspect’s telephone account. This would require significant time and expense on Telus’ part. As a result, Telus requested that the police provide compensation to Telus for its costs of retrieving and producing the information. In the lower court Telus lost its request for costs and it lost again before the Supreme Court.
The Court has held that all citizens, private and corporate, should provide information to the police (subject to rights to protection against self-incrimination) where one of these production orders is obtained. However, since the Criminal Code does not permit for compensation, and since such compensation would hinder or run contrary to the public’s interest in solving crimes, the person from whom the information is sought will have to suffer the expense of providing the information as a “cost of doing business” (especially for large corporations such as telephone companies or banks) or a cost of being part of society.
In the civil lawsuit context, such production orders are known as Norwich Pharmacal orders and usually arise in fraud cases. In Ontario, there is one case that has touched on the issue of compensation and it appears to support the concept that the person producing the documentation should be compensated for that person’s time and expense. I say “appears to support” because the wording of the one case is less than crystal clear and it is only one trial judge’s decision – the Ontario Court of Appeal, for example, has not discussed the issue as yet. However, unlike in the criminal context, a request from a telephone company or a bank for production in a civil lawsuit does not bring into play issues of duties of corporate citizenship or duties to society as a whole.
If your business is provided with an Order of the Court requiring you to produce documents relating to, for example, one of your customers, you will have to comply (or face contempt of court). If it is part of a criminal investigation, the expense will be a part of the cost of doing business. However, if the Order for documents is for a civil lawsuit, you might be able to seek compensation for your time and trouble. If nothing else, it never hurts to ask in either case and see what the other side says.