Most people carry their phones wherever they go, such as when driving to work, visiting a friend, shopping at a grocery store, dining out, or returning home. As a result, cellphone location information can provide significant assistance to police during an investigation.
Can police in Canada track the location of your phone without telling you?
Yes. In some cases.
Canadian law provides police with various investigative measures to obtain cellphone location information. Some of these investigative measures can involve historical location information, while others may permit police to track the current location of a cellphone as it moves over time. While some of these measures can be undertaken without advising you that your movements are being tracked, some will require prior approval from a court.
Your Phone Provides More Than Just Your Current Location
Many Canadians view “cellphone tracking” as a situation in which a police officer watches a moving red dot on a screen as the cellphone owner travels from point to point.
While that may happen occasionally, more often than not, police investigators may seek access to data related to the location of a cellphone on multiple occasions throughout the day. This may be due to the fact that a cellphone interacts with cellular networks and online services each time the owner uses their phone. Accordingly, based on the type of technology employed and the availability of location-based information, investigators may request access to a variety of types of data to assist them in determining where a cellphone was located at certain points in time.
When police are investigating an individual for past conduct or potential future offences, they may want to know:
- historical location information, which indicates previous locations visited by the cellphone; or
- prospective tracking of the cellphone user, meaning tracking the cellphone user’s whereabouts while an investigation is underway.
These investigative methods are permitted by law under the Criminal Code.
Police May Obtain a Warrant Authorizing Tracking
Specifically, section 492.1 of the Criminal Code provides for warrants authorizing police to use a tracking device. There are two ways in which a police investigator can obtain a warrant.
One way involves obtaining authorization to track the location or movement of an object, such as a car. The second method involves tracking an individual’s movements using the location of an object the individual typically carries or wears. Clearly, a cellphone is an example of an object an individual would typically carry.
When an applicant seeks to use the latter method, meaning tracking an individual through an object they typically wear or carry, a judge or justice must find that:
A. There are reasonable grounds to believe that an offence has been committed or will be committed; and
B. The tracking information will assist in conducting the investigation.
Once a judge or justice grants permission, the warrant can allow police to covertly:
- install, activate, and/or deactivate a tracking device;
- use, maintain, monitor, and remove a tracking device.
Note: Covert means tracking without you knowing about it.
For How Long Can Police Track Someone?
Depending on the nature of the investigation, the maximum amount of time police can track someone is 60 days. However, if police are investigating organized crime or terrorism offences, the tracking period can exceed 60 days.
It is worth noting that 60 days is not necessarily how long police will be permitted to track someone every time they ask for permission. Instead, the length of time authorized in the warrant itself determines how long police can continue to track. Additionally, a judge or justice may impose additional conditions on the warrant.
When Do Police Not Need Permission to Get Location-Based Information?
Even though police do not need your physical permission to start tracking a device, they may still need judicial authorization to obtain certain types of location-based information.
For example, section 487.017 of the Criminal Code provides that police may obtain a production order for tracking data. Under this provision, a judge or justice can order another person or entity to create and produce documentation that includes pre-existing tracking data. Pre-existing tracking data is defined within the Criminal Code as information regarding a transaction, individual, or thing that relates to its location.
To obtain such an order, a judge or justice must conclude that:
- there are reasonable grounds to suspect that an offence has been committed or will be committed;
- the requested tracking data is in the possession or control of another party; and
- the requested tracking data will aid in the investigation.
These orders can be applied for ex parte. Ex parte means that the application is filed without notice to the opposing party.
Therefore, individuals being investigated may never be informed that the government is requesting their location-based records.
Cellphone Location Records and Communications Records Are Two Separate Things
Another important difference exists between cellphone location data and communication records.
Communication data can be sought under section 492.2 of the Criminal Code. The provisions permitting authorities to apply for a warrant to install a transmission data recorder, which can capture information regarding communications, including where they originated, where they were sent, the time and date of communications, the duration of communications, and the route taken by communications, state clearly that the only information that can be obtained with this warrant is transmission data. Further, the provision states that no tracking data can be obtained.
This makes clear how Canadian law distinguishes cellphone location records from other forms of electronic communication records. Authorities should not attempt to circumvent provisions designed to regulate cellphone tracking by claiming cellphone tracking is merely an additional form of communication record collection.
Will Police Ever Be Allowed to Track You Without First Obtaining a Warrant?
There are limited circumstances under which authorities do not need a warrant to engage in cellphone tracking.
Section 487.11 of the Criminal Code permits authorities to perform searches and tracking activities without a warrant if they have sufficient evidence to obtain a warrant but are unable to obtain one because of urgency. The ability to track described here pertains only to section 492.1(1), which addresses tracking transactions or items.
These represent rare exceptions. An investigation alone does not grant authorities unfettered authority to secretly follow your movements.
The level of authority required varies depending on whether police are attempting to track cellphone activity, gather information related to cellphone activity, or conduct an investigation into some form of wrongdoing.
If You Were Charged With a Crime and the Government Provided Evidence of Your Location Using Your Phone, Could They Use That Evidence?
Evidence collected using cellphone location data may play a substantial role in establishing elements necessary for conviction in many prosecutions.
Assume, for instance, that police claim you committed an offence at approximately 11:30 p.m. at a particular address. Investigators have acquired cellphone data showing that your cellphone travelled near that exact location at approximately 11:30 p.m. That evidence may comprise part of the prosecutor’s case against you.
However, cellphone location evidence raises many issues. What does the evidence show? How reliable is the data? Was it accurate enough to demonstrate that you had possession of the cellphone? Is there proof that police properly followed all laws when collecting your data? Was authorization provided by a judge or justice?
Disclaimer: Information provided on this blog is for general informational purposes only, it does not constitute legal advice. If you are seeking legal representation, contact Nirwal Law for a free consultation. We’re here to help.
