Cell Tower Record “Dump” Admitted

A contentious and ongoing battle in criminal court is the investigative technique of police obtaining a court order for a tower dump compelling telecom companies to turn over the names and phone numbers of cellphone users whose signals pinged off a given tower during a particular period of time. 

Police use tower dumps as an investigative tool so frequently that hundreds of thousands, if not millions of people across Canada are affected each year. 

It is not just defence lawyers who are trying to keep the records out, telecom companies have mounted privacy challenges as tower dump records cast too broad a net and breach their customer’s privacy. 

This technique involves the police accessing the records of a substantial number of individuals, virtually all of whom are not suspected of any wrongdoing or are even of interest to the investigation. If not contained within reasonable parameters, these orders will allow police to obtain and retain potentially huge volumes of confidential information without proper grounds. 

R v. Baskaran – Tower Dump Admitted 

In Baskaran, six men were charges with a number of criminal offences arising out of tractor trailer thefts and robberies. In each of the incidents, a truck driver or security guard was forcibly confined and a loaded semi-truck was stolen. The Crown sought to establish that the offences were committed by a group of people and that have the evidence of each accused used as similar fact evidence. 

While investigating the first robbery, police noticed two vehicles and at least five people who appeared to be following the stolen truck before it was taken. Police then applied for a production order to obtain cell tower records for the areas of the observation in order to try to identify cell phone numbers.   

The production order sought what is commonly referred to as a “tower dump” for a group of cell towers during a specified period of time along the theft route. The production order was granted and police were able to identify one suspect and several other numbers of interest. Police then obtained further production orders as a result of the information learnt. 

After further robberies and subsequent arrests, police obtained production orders for the cell phones of several accused persons. These production orders were based on information obtained by improper searches of seized cell phones. The Crown conceded that the subsequent orders could not stand but argued that the evidence should not be excluded under section 24(2) of the Charter.    

The trial judge found no section 8 breach in the tower dump orders and declined to exclude the evidence. After a lengthy jury trial, the accused were convicted. Each man appealed the convictions arguing that the trial judge erred in finding a section 8 breach and in allowing the similar fact evidence. 

Court of Appeal’s Decision 

The Court of Appeal found no error in the trial judge’s analysis or conclusion with respect to the constitutionality of the tower dumps. 

The appellant’s argued that the production orders were based on insufficient grounds and were overbroad. The trial judge found that it was a common sense inference that the men following the target truck would be communicating with each other by cell phone. The Court of Appeal agreed with this reasoning. Even though the case was dated and arose in 2009, the use of cell phone communication was ubiquitous. The appellants argued that two-way radios were a possible alternative that could have been used to communicate. Both the trial judge and Court of Appeal agreed that it was a possibility, but that an alternative possibility does not negate the common sense inference available on the evidence. 

With respect to the appellants’ argument on overbreadth, the Court of Appeal found no error in the trial judge’s assessment. The appellants claimed that the production order had produced a vast array of personal information about a great many people because it sought “all information pertaining to cellular calls” in a set time-frame. The appellants argued that “all records” included financial information, but did not put the information obtained by police before the court. Without any evidence of what the police actually obtained, the trial court could not assess the scope of the intrusion or say whether financial or other types of records were disclosed. Though the production orders should have been more carefully crafted, they were not overboard.

The Court of Appeal further accepted the trial judge’s decision on section 24(4) made in the alternative. The police conduct was not serious and the evidence was real and reliable. Without the actual records before the court, the degree of intrusion was difficult to assess. On the balancing of factors, the Grant analysis favored admission. 

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.