Section 492.2 of the Criminal Code of Canada provides for the issuance by a justice of a warrant to install, maintain and monitor a number recorder, being “any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or intended to be received”: s. 492.2(4). The standard to be used by a justice in assessing an information to obtain a s. 492.2 number recorder warrant are “reasonable grounds to suspect” that an offence has been committed or will be committed.
In R. v. Croft, 2013 ABQB 644, the accused filed a notice of constitutional question, alleging that s. 492.2(1) and 492.2(2) of the Criminal Code were contrary to section 8 of the Canadian Charter of Rights and Freedoms.
The accused argued that: (1) the “reasonable suspicion” standard was an insufficient standard and that a constitutionally valid standard for the issuance of a warrant such as this would be the higher “reasonable grounds to believe” standard; and (2) the information gathered by a number recorder is a private communication within the meaning of the wiretap provisions of the Criminal Code and that the standards set out in those sections of the Code must be met in order for there to be a constitutionally valid intercept of the information acquired through number recorders. Both arguments were rejected by Mr. Justice Burrows in the Croft decision.
With respect to the first argument of the accused, Justice Burrows adopted the reasoning of the Quebec Court of Appeal in R. v. Cody, 2007 QCCA 1276. In brief, that Court had held that, although there was an expectation of privacy in the information recorded by a number recorder, this expectation was a reduced one, since the pertinent information recorded is only the duration of the call, the number called (or called from) and the time and date of the call. The content of the call is not recorded. The “reasonable suspicion” standard was compatible with the modest expectation of privacy in this type of information.
With respect to the second argument of the accused, Justice Burrows adopted the reasoning of his colleague Justice Sulyma in R. v. Lee, 2007 ABQB 767. In short, number recorder data is similar to that gathered in the ordinary course of business of a telecommunications company. It is not a telecommunication in which there is a reasonable expectation of privacy and, accordingly, does not meet the definition of a “private communication”, which is necessary to engage the wiretap provisions of the Criminal Code.