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Ontario judge to hear Charter challenge on privacy issues raised by Telus, Rogers

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TORONTO - An Ontario judge has agreed to hear a Charter of Rights challenge brought by Telus and Rogers after they were asked by police in April to release cellphone information of about 40,000 to 50,000 customers as part of an investigation.

Justice John Sproat says that the case has highlighted important issues about privacy and law enforcement that should be challenged in open court, even though Peel regional police tried to withdraw the requests.

"The privacy rights of the tens of thousands of cell phone users is of obvious importance," Sproat wrote in a ruling dated July 16 and released on Friday.

"Counsel for Rogers-Telus will be able to identify and argue Charter issues that might not otherwise be evident."

Mobile phones need to make wireless connections with antennas that are often mounted on towers. A record is kept each time a phone attempts or completes a phone call, text message or email that identifies which tower made the connection. Sometimes a call will be transferred from tower to tower, providing information about the phone's movements.

Each of the production orders presented to Telus and Rogers required the name and address of every subscriber making or attempting a communication through the specified towers and, in cases where the connection is between two customers, the orders also required billing information that could include bank and credit card information.

Telus told the court that the order would require it to disclose the information of at least 9,000 individuals. Rogers estimated it would need to retrieve about 200,000 records related to 34,000 subscribers.

The Crown countered that the Charter challenge should be dropped because police had withdrawn the original request for information from 21 Telus towers and 16 Rogers towers and were willing to ask for information from fewer towers.

Sproat, a judge of the Ontario Superior Court, said that warrants for cellphone records and tower dumps are common but he wasn't aware of any cases that address the related privacy concerns.

"Individual subscribers obviously lack the means or incentive to raise these issues," Sproat wrote.

"The Rogers-Telus applications directly concern 40-50,000 individuals, it is safe to infer that the number of individuals affected across Canada would be in the hundreds of thousands, if not millions, every year."

A week before Sproat heard the case, the Supreme Court of Canada issued a 8-0 decision on June 13 that affirmed Canadians have a right to online privacy under the Charter of Rights and Freedoms. A few days later, both Telus and Rogers said they would no longer routinely give basic customer information to police or security agencies without first seeing a warrant.

One of their arguments is that they are contractually bound to protect their customers' privacy.

Lawyers for Telus and Rogers said told Sproat that the companies have responded to thousands of court orders requiring cell records but said that the tower dumps requested by Peel regional police force in this situation were too general.

Telus issued an emailed statement Friday that said the Vancouver'based company only provides confidential customer information to law enforcement agencies or other third parties in response to valid court orders or other applicable law.

"Importantly, as we have done in this case, Telus will contest orders we believe overreach in order to protect the privacy rights of our customers and other Canadians," the statement said

A Rogers emailed statement said: "We thought the request we received was too broad, so in order to protect our customers' privacy, we went to court to seek clarification on what constitutes a reasonable request."

Sproat said he would set dates for hearings at a later time and said the parties should work together on procedural matters.

- Follow @DavidPaddon on Twitter.

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