Court of Queen?s Bench of Alberta Citation: Amer, 2017 ABQB 651 16054493801, um 15033636Q1, a Registry: Calgary Between: 16054493 Her Majesty the Queen Crown .. and .. Talal Amer, Abdul Rahman Ali Amer, Bader Eddin Amer, Barakat Amer and Tarek Abdul El-Ra?e Defendants And Between: 160530259Q1 Her Majesty the Queen Crown - and - Bader Eddin Amer and Tarek Abdul El?Rafie Defendants Page: 2 And Between: Her Majesty the Queen -and- Said Rack Abdulbaki and Bader Eddin Amer And Between: Her Majesty the Queen .and- Ahed Alwan 15033636Ql Crown Defendants 16074258101 Crown Defendant I. II. IV. nor-v?? Page: 3 Restriction on Publication SEALED See Canada Evidence Act, section 37. By Court Order in paragraph 64 of this judgment, this judgment is sealed and must not be published or distributed in any way except as directed by this court, and is not to be made available from the court ?le. Further, by Court Order, the court file materials referenced in paragraph 65 are also sealed and must not be published or distributed in any way except as directed by this court, and are not to be made available from the court ?le. By Court Order in paragtaph 67, this iudgment AS REDACTED is unsealed, and may be published and distributed. In addition, the transcript of the July 12 and 13: 2017 hearing and the Af?davit of Sgt. Campbell af?rmed July 6, 2017, AS REDACTED, are unsealed and may be published and distributed. I Decision of the Honourable Mr. Justice G.H. Poelman Regarding Crown Assertion of Public Interest Privilege Table of Contents Introduction 4 Issues Evidence 6 Legal Principles it Introductlon I 1 Burden of Proof 11 Investigative Pr1v11ege I ?Would Encroach Upon? Page: 4 V. Findings 12 A. Introduction 12 B. Public Knowledge C. Disclosure May Assist Offenders 1_5_ D. Would Encroach Upon Privilege 15 VI. Conclusion 1 6 Introduction Two of the accused in these case-managed proceedings, Mr. El-Rafie and Mr. Barakat Amer, applied for an order directing, among other things, ?disclosure of certain enumerated items relating to the development of any Mobile Device Identi?ers also known as Cell Site Simulator, IMSI catcher, ?Stingray,? etc.) as part of Operation Hybrid.? The Crown responded by seeking summary dismissal of the application, arguing that there was no basis upon which the relief could be granted, and that the Defence should not be permitted to call any evidence in support of its motion. I denied the Crown?s application for summary dismissal on May 26, 2017. I expressed reservations about what the requested information could show, because the apparent theory for which the Defence wanted it might prove highly speculative. Nevertheless, I declined to summarily dismiss the disclosure application with the Defence having no right to put forward evidence in support. The main part of my oral ruling was as follows: The defence argues that it needs more technical information to make that determination. In any event, the proposed viva vac-e evidence may answer the question in a way that helps determine how Speculative the concern about accuracy of negative results might be. The Crown has not convinced me that this inquiry is clearly irrelevant on its face, such that the defence should not be permitted to call any evidence. I will allow evidence, but only going to the narrow issue of what a negative result might mean in the context of the incidents identi?ed in Sergeant Campbell?s will- state. That will, of course, involve describing exactly what unit was used, what features were activated, and the circumstances in the area that might have affected results. Following my ruling, on May 28, 2017 the Crown objected to disclosure of the information by certi?cate under section 37 of the Canada Evidence Act, R.S.C. 1985, c. C-S, where it stated that ?the disclosure . . . should not be made in the proceedings in which disclosure is sought on the grounds of a Speci?ed public interest, namely: police investigative technique privilege.? The Crown?s certi?cation invoked the procedure set out in section 37. The relevant parts of that section are as follows: Page: 5 37(1) . . . Minister of the Crown in right of Canada or other of?cial may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a Speci?ed public interest. (2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection. (4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a Speci?ed public interest, the court may authorize by order the disclosure of the information. (5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a speci?ed public interest, but that the public interest in disclosure outweighs in importance the speci?ed public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the speci?ed public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information. (6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of the information. (6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence. An accused (or his or her counsel) may not attend a section 37 hearing; it is a discrete proceeding separate from the accused?s trial: Basi, 2009 SCC 52, 248 C.C.C. (3d) 257 at para 50. However, a trial judge should adopt reasonable measures to permit defence counsel to make meaning?rl submissions regarding what occurs in their absence, including submissions on scope of privilege and suggestions of questions to put to witnesses who may be called. In addition, an amicus curiae may be appointed: at paras 55-57. I received briefs of law and books of authorities from counsel from both Mr. El-Ra?e and Mr. Amer. They were invited to submit questions, but did not do so. However, at their request I appointed an amicus curiae to assist in the hearing. Further, again at Defence counsel?s request, I appointed lawyer Anil K. Kapoor for that role. He has extensive experience in both the section 37 procedure and its use in regard to MDI devices. The Crown consented to the appointment of an amicus curiae and to Mr. Kapoor being designated to ?ll that role. Page: 6 11. Issues The Crown?s section 37 certi?cate objected to disclosure of: a) The make and model of a device deployed by members of the Calgary Police Service in the investigation of these matters and commonly referred to as an MDI or PTDR (certi?cate at para b) A description of the features of the aforesaid device (certi?cate at para and c) A description of the circumstances that may cause the deployed to fail to identify a mobile device (certi?cate at para During the hearing, the Crown advised that it abandoned some of its objections to disclosure. However, it maintained its objection to disclosure of the make and model of device, and a descri tion of the features which uni ue cell hone identi?er numbers were detected As a result of the Crown?s position at the hearing, the objection made with respect to paragraph 2(a) of the certi?cate is maintained, but the objections in paragraphs 2(b) and are abandoned, exce to the extent that such information would reveal the technique used by device. The Crown maintains that disclosing the make and model would itself disclose the technique. [10] Thus, the issue to be addressed on the disclosure application before me is whether the make and model of MDI and certain speci?c features of it would ?encroach upon a speci?ed public interest? (section 37(4. 1 D, namely police investigative technique privilege (which I will refer to as ?investigative privilege?). Evidence [1 1] Evidence at the in camera hearing consisted primarily of the af?davit and testimony of Sgt. Scott Campbell, a member of CPS. In addition, I have considered an af?davit submitted on behalf of Mr. El-Ra?e and Mr. Amer, which contains extensive exhibit documentation in the public domain about how MDIs Operate. Those exhibits were used during Sgt. Campbell?s testimony and in oral submissions. [12] Sgt. Campbell has at all relevant times been assigned to the Electronic Surveillance Team. One of his responsibilities in November 2015 and January 2016 was to supervise deployment of an MDI during the Homicide Unit?s investigation ?Operation Hybrid.? The CPS took delivery of its MDI unit in September 2015. There are several types of MDIs available for purchase by law enforcement, intelli ence and milit a encies. The one selected by CPS was manufactured the model being . Its software is updated from time to time. [13] Sgt. Campbell took a thirty?hour training course for operating the unit, which was conducted in Calgary by the manufacturer. It involved ?eld simulation, both at secure locations Page: 7 and in public. In addition, other staff members who would be operating the unit received training. [14] MDI unit was deployed ?rst for Operation Hybrid in November 2015, and again in January 2016. Overall, it has been deployed in fourteen investigations and is still being used. [15] - Other Canadian policing agencies that are known to use MDI units are the Royal Canadian Mounted Police, the Ontario Provincial Police and the Winnipeg Police Service. None have disclosed the make and model of their devices. [16] There are three modes in which most MDIs, including device, can be deployed. The direction-?nding mode enables the location of a speci?c cellphone, and can be used to identify missing persons or kidnapping victims who have a cellphone with them. A second mode would be used in a military or tactical operation to block operation of all cellphones within range of, for example, an improvised explosive device, thus avoiding remote detonation. The third mode is the query mode. [17] In this case, only the query mode was used. It is explained brie?y in Sgt. Campbell?s af?davit at paragraph 7 as follows: In Query mode, the CSS [Cell Site Simulator, commonly referred to as an requests the International Mobile Subscriber Identity (IMSI) number and International Mobile Equipment Identity (IMEI) number from all active mobile communication devices within a given area. The simulator typically receives signals from multiple such devices, and then acquires the unique ID for each handset within the area of in?uence. The CSS operator attempting mobile communication device identi?cation uses this technique in several locations where the target device is con?rmed to be. Using simple subtractive analysis, the CSS operator determines the unique ID from all con?rmed locations to identify the unique ID for the target device. In this mode, mobile communication devices leave their home network Rogers, Bell, Telus etc.) and attempt to connect with the CSS -exchanging their IMSI and, in some circumstances, their IMEI. [18] More detail about the technique used by the CPS was given during his testimony. Based on Sgt. Campbell?s description, the operation may be summarized as follows: a) Each mobile phone, or cellphone, must have credentials to connect to a cellular network. Those networks are divided into areas commonly referred to as local area codes, or b) Each LAC has an unique identi?er. Within each LAC, there may be a number of cell towers. The towers broadcast the unique identi?er to the area. c) The subscribers to a network communicate to that network?s tower within a LAC. That is the way mobile phone calls are connected and routed to their ultimate destination. (1) For a mobile phone to connect with the subscribed network, it must communicate its credentials, which include the IMSI and the IMEI. e) In Canada, there are different mobile technologies, such as Global System for Mobile Communications and Long-Term Evolution Page: 8 f) GSM and LTE devices all use IMSI and IMEI identi?er numbers. At least one of these identi?er numbers is recorded by a service provider, such as Rogers, as part of a customer?s subscription information. g) The idea behind MDI technology is that the cellphone will communicate with the most attractive cell tower within range of the phone, and provide as credentials at least one of the identi?er numbers. The MDI masquerades as a cell tower and thus the communication is given to it. All of this information is publicly available. unit used CPS em 10 a different techni ue. Page: 9 [22] Use of the data collected is made by ?subtraction analysis.? Based on ?eyes on? surveillance, the MDI is taken within range of the target and activated. This is repeated over a number of locations. The software then determines which unique identi?ers appear at each location, giving the investigators presumptive knowledge about what numbers are being used by the target who was gone to each location. This information can be used to support an application to intercept the newly-discovered cellphone number. [23] In his af?davit, Sgt. Campbell testi?ed that ?the was used in Operation Hybrid to attempt to identify unknown mobile communication devices in the position of known persons?: at para 6. No such unknown numbers were identi?ed during three sets of deployments against thee targets. Sgt. Campbell testi?ed that the police could not rule out the possibility that numbers already known to be associated with those targets were identi?ed by the MDI. Such results would not have been kept because the MDI deployment was for the purpose of locating unknown numbers not already being intercepted pursuant to court authorization: transcript at 21-22. [24] Sgt. Campbell explained that in the case of Mr. El?Ra?e, the device was deployed as the target travelled to different locations. However, he did not leave a certain area of Calgary, staying at locations within two or three blocks of each other. Thus, the results were not meaningful: Campbell af?davit at para 9. [25] In the case of Mr. Amer, they were only able to deploy the device at one location and therefore had insuf?cient information to conduct the subtraction analysis: Campbell af?davit at para 10. [26] Sgt. Campbell had no recollection about the deployment for target erin Edwards (who is not an accused in these proceedings). In his af?davit, he testi?ed that he was advised that the Page: 10 operator ?did not obtain data from a suf?cient number of unique locations to conduct a meaningful subtractive analysis?: Campbell af?davit at para 11. [27] Apart from these speci?c incidents, Sgt. Campbell testi?ed in his af?davit at paragraph 8 to a number of reasons an MDI may fail to capture a cellphone: a) The device has been turned off (that is, powered off it does not actually have to be transmitting or receiving a communication to be detected); b) The device was out of range of the MDI (which in an urban environment is anywhere from 200-500 metres); c) The device was not transmitting (for example, if put on airplane mode, which shuts off the transmitter); d) The device remained on the home network (which Sgt. Campbell understood may occur by some internal programming on the device); e) The known person did not possess an unknown device (which is really more of a reporting issue, in that in this case the investigators did not report on or retain records about obtaining identi?er numbers for known numbers used by targets); and f) The general operating environment (which includes obstructions such as buildings, weather, and radio frequency interference caused by other devices transmitting on the same frequencies the MDI is using). [28] Sgt. Campbell explained that even where situations appear to be ideal for MDI deployment as far as can be determined by investigators? observations, there may be factors which prevent the MDI from receiving the identi?er numbers from targets using unknown numbers. He also testi?ed that it would be impossible to recreate the situation the operators faced in Operation Hybrid when they'deployed the MDI. There are a broad range of unknown or impossible?to?duplicate factors, such as variations in location, weather, other radio frequency traf?c being used, other devices (such as a refrigerator, which produces radio frequency), and other people present within the range: transcript at 79. [29] In his af?davit, Sgt. Campbell testi?ed that ?disclosure of the make, model and software version of the simulator will enable persons engaged in criminal activity to research its capabilities and take steps to defeat it?: 'at para 5. In his in camera testimony, he stated that ?if the public were to understand our speci?c device and, potentially, the technology and software that runs our device, there?s the possibility . . . of people being able to defeat it, either by understanding how it works and physically defeating it or by potentially hiring somebody or somebody developing further technology that would allow them to defeat it?: transcript at 17. [30] CPS has done no investigation on the ef?cacy of frustrating its operation. Sgt. Campbell is aware that there are attempts to frustrate the operation of MDIs. Examples are Snoop Snitch and both of which are advertised as having the ability to detect the use of MDI units. Sgt. Campbell does not know whether these technologies are effective or, in particular, whether they could detect deployment of MDI device: transcript at 71-72. IV. Page: 1 1 Legal Principles A. Introduction [31] The effect of section 37(4.1) of the Canada Evidence Act is that upon a certi?ed objection by a Minister of the Crown or other official, there can be no disclosure order if the court concludes that the requested information ?would encroach upon a speci?ed public interest,? in this case investigative privilege. [32] There are two questions to be addressed in interpreting this provision: (1) what constitutes investigative privilege, and (2) what is meant by the phrase ?would encroach upon.? B. Burden of Proof [33] The parties agree that the Crown has the onus of establishing, on a balance of probabilities, that investigative privilege applies to the information it seeks to withhold. As was stated in Mirarchi, 2015 QCCS 6628: ?The mere assertion by the police or the Crown is insuf?cient to warrant a ?nding of privilege. Proof of the allegation is required?: at para 110. C. Investigative Privilege [34] Police investigative technique privilege is a ?case-by-case? (or case-speci?c) form of privilege, as contrasted with a class privilege. At common law, case-speci?c privilege is quali?ed and involves balancing competing interests (usually some public interest against an accused?s right to full answer and defence): Mirarchi at para 104; Michaud Quebec (Attorney General), [1996] 3 S.C.R. 3, 109 C.C.C. (3d) 289 at paras 47-48; and Richards (1997), 115 C.C.C. (3d) 377 (Ont. CA.) at para 11. In section 37, the balancing of interests is expressly required by subsection 5. [35] Investigative privilege re?ects the state?s interest in preserving the con?dentiality of its investigations and investigative techniques: Michaud at para 48; Durerte, [1994] 1 S.C.R. 469, 88 C.C.C. (3d) 1 at 53. It protects against the risk that ?disclosure of investigative techniques . . . might . . . cause criminal offenders in the future to modify their activities in order to avoid detection?: rang, 2002 ABQB 19, 168 C.C.C. (3d) 145 at para 50. As Mr. Kapoor said in his amicus curiae brief: ?The underlying concern animating the application of the privilege is that if the criminal element learns the police technique, they will be able to avoid detection and thereby public safety will be undermined?: at para 12. [3 6] Furthermore, the Crown agrees with Mr. Kapoor?s description in his amicus curiae brief of how to determine whether the privilege exists over certain information: An important factor to take into account when assessing if a particular police technique is sensitive publicly known technique. For example, the police utilize many techniques to assist their investigations, many of which are well known and part of our criminal law daily experience and are not the subject of privilege. ootnote: ?For example, the use of breathalyzers, radar guns, surveillance, the Mr. Big Technique, employing agents, undercover operatives, the use of covert entries and many more.?] What is privileged and what is not turns, in part, on the extent of public knowledge about the investigative technique. Where the operation of a device is widely known or publicized by the police, the underlying rationale for the application of the privilege weakens: at para 1 1. Page: 12 [3 7] I am not aware of any authority that de?nes the elements of investigative privilege. However,.based on factors giving rise to the privilege and its purpose (addressed in various cases), I conclude that investigative privilege covers information that is used by police in their law enforcement functions; (2) is not publicly known; and (3) if disclosed, may assist offenders to interfere with or defeat police investigative ?mctions. D. ?Would Encroach Upon? [38] The Crown submitted that under the section 37 regime the court should take a broad approach to recognizing investigative privilege at the initial stage articulated in section 3704.1). It argued that the notion of ?encroaching? upon a privilege connotes something less than an overriding of privilege. Further, it argued that the balancing of interests contemplated in section 37(5) permits more latitude in determining whether privilege exists because a mere ?nding of privilege does not necessarily preclude disclosure. [39] I am not persuaded by the Crown?s arguments. In its plain sense, an encroachment is a form of entry or trespass. For example, The Canadian Oxford Dictionary, 2nd ed. (2004) de?nes ?encroach?, when followed by ?upon", as ?intrude, eSp. on another?s territory or rights? or ?advance gradually beyond due limits.? Applying this de?nition, ?would encroach upon? suggests a circumstance where the privilege is overridden. My interpretation is reinforced by the use of ?encroachment? in section 37(5) in a context that clearly refers to an infringement, because in some cases it allows disclosure after privilege has been found, upon conditions ?that are most likely to limit any encroachment upon the speci?ed public interest resulting from disclosure.? [40] The balancing of interests provision in section 37(5) is not helpful to the Crown?s argument either. The case-speci?c privilege at common law also requires consideration of competing interests for granting protection over investigative privilege. It is a step that follows the initial determination of whether disputed information falls within the scope of the privilege. [41] It would be more accurate to say that concealing an investigative technique ?is a basis for secrecy that is, however, fairly narrow in its application and one that of necessity needs to be determined on a case by case basis?: Toronto Star Newspapers Ltd, [2005] No. 5533 (S.C.) at para l4, quoted in Mirarchi at para 117. However, its narrow application is re?ected in the limited scope of the privilege as set out in the authorities to which I referred earlier, and the test I articulated based on them, set out above. V. Findings A. Introduction [42] I summarized the elements required to establish investigative privilege as applying to information that (1) is used by police in their law enforcement functions; (2) is not publicly known; and (3) if disclosed, may assist offenders to interfere with or defeat police investigative functions. [43] It is beyond dispute that CPS uses an MDI device as part of its law enforcement ?mctions. Accordingly, the first factor is satis?ed. What needs to addressed are the second and third factors: the degree of public knowledge about that device, and whether the information requested may assist offenders in interfering with or defeating police activity. Finally, it must be Page: 13 addressed whether any Special signi?cance should be given to the requirement in section 37(4.l) that disclosure ?would encroach? (emphasis added) upon the privilege. B. Public Knowledge [44] Based on the evidence and submissions, I conclude that there is public knowledge of the MDI use in the following areas: a) The CPS has at least one MDI device (as disclosed, for example, in an interview with The Globe and Mail newspaper). b) A broad outline of how MDIs operate is publicly known. They simulate cell towers. Because cellphones must connect to cell towers to link to a network, the cellphones? unique identi?cation numbers are captured by an MDI unit (as they would be by a cell tower). 0) Speci?cally in query mode, an MDI requests the identi?er numbers from all active cellphones in its range; it then receives signals from these devices, which respond as they would to a cell tower. Thus, the MDI acquires the unique identi?ers for each handset within its range. d) [45] Thus, it could be argued that all elements of MDI investigative technique are ublicl known. However, the Crown argues that it is not known that the MDI uses the method, and the fact that information about the procedure may be publically accessible is not the same (especially in the inter-net age) as a police service verifying its accuracy or con?rming publicly that this is Page: 14 the procedure they use. It is not necessarily well-known. The on] ublic information about which Sit. Campbell was aware that discussed the techniiue is the [46] These are legitimate points. While information about basic MDI technology may be readily accessible, avoidance measures might need to take into account speci?c details of each device used. For example, the Defence submitted that ?the dominant company in digital cellular surveillance market is Harris Corporation, who introduced its ?StingRay? product in 2003?: May 12, 2017 brief at para 17. That is not product. [47] Further, it is one thing to locate information about how MDIs are reported to Operate. Information on almost anything can be obtained by persistent inquiry. It is another thing for CPS to state, under court order and perhaps by sworn evidence, what MDI device it uses and how it operates. Continuing what otherwise has a degree of uncertainty confers more useful knowledge. [48] Additionally, a successful privilege claim does not require proof that the information cannot be accessed any way other than by disclosure. As Mr. Kapoor submitted: ?What is privileged and what is not turns, in part, on the extent of public knowledge about the investigative technique?: amicus curiae brief at para 1 1 (emphasis added). The extent of public knowledge falls on a continuum, and is an important, but not the sole, factor in determining privilege. [49] It is telling that the materials submitted on behalf of Mr. El-Ra?e and Mr. Amer included an extensive collection of materials showing that MDI technology is publically known. While those materials contain basic information about the technology, they do not go beyond the notion, to quote one reference, that ?a Stingray pretends to be a legitimate cell tower, forcing all nearby devices to connect?: Article from The Globe and Mail Se tcmber 15, 2014), Exhibit to the Af?davit of Melissa Geor e. [52] The reinforces my earlier point that the mere fact of information being in the public domain does not mean it is well known. The well-known information, based on the materials submitted to me, focuses on the most revalent forms of MDI, such as Harris Corporation?s StiniRai. S?t. Camibell testi?ed that Page: 15 This supports the assertion of privilege over the make and model of its device. C. Disclosure May Assist Offenders [53] The third factor in determining whether investigative privilege applies is whether the requested information may assist offenders to interfere with or defeat police investigative functions. [54] As 1 indicated in my summary of the evidence, Sgt. Campbell is aware that devices exist to detect deployment of MDI units. He is not aware of their ef?cacy generally, nor whether they would work in particular against model. [5 5] Mr. Kapoor submitted that I must consider whether the Crown has met its burden of proof in establishing investigative privilege. He emphasized that the underlying point of investigative privilege is consequential: the question is not whether the information is secret, but what would result from its disclosure. He argued that the risk of persons engaged in criminal activity using this information to defeat MDI technology is speculative. He suggested that the Crown should have provided evidence on whether current countersurveillance products would detect deployment of MDI device, either by introducing test results or by expert opinion evidence. [56] Requiring that degree of certainty would be too heavy an onus in making out a privilege claim, in my view. The cases do not require proof that disclosure will enable offenders, as a result thereof, to defeat law enforcement objectives. Nor is proof of probable harm needed. This aspect of the test operates to limit the investigative privilege according to its prOper purpose; not every police secret will be privileged. But where the evidence supports a genuine, reasonably- based concern about adverse effects on law enforcement functions, the test is met. [57] I conclude that the make and model information (and related details) concerning MDI unit fall within investigative privile e. The ublic knows that CPS has an MDI device, but does not know its particular method of obtaining cellphone identi?ers, information that is not common among all such devices, and perhaps not used by Harris Corporation products (or at least not publicly known to be used). Sgt. Campbell has, on behalf of CPS, expressed genuine and reasonably-based concerns that public con?rmation as to how the device Operates will facilitate more effective, focused counter surveillance efforts. It is reasonable to be concerned that accurate knowledge of unique features of a particular MDI device will facilitate more effective avoidance techniques. It asks too much to require the Crown to prove this. [58] I also consider that CPS is willing to disclose signi?cant details about the operation of its MDI device in query mode, and how it was used in surveillance in these cases. They have limited their claim of privilege to a few narrow details, giving up the claim on what they agree is already public information. D. Would Encroach Upon Privilege [59] Mr. Kapoor urged me to pay special regard to the requirement in section 37(4.l) that for privilege to apply, the court must conclude that disclosure ?would encroach upon a specified public interest? (emphasis added). He suggested that this is a further element required to establish investigative privilege, requiring evidence of the consequences of disclosure. Page: 16 [60] In my view, section 37(4.1) does not change the scope of investigative privilege as established in the cases. Stober .S.C. said in Mirarchi that ?Crown counsel, defence counsel and the amicus curiae agree that there is no difference between the considerations underlying an analysis pursuant to s. 37 of the Canada Evidence Act or the common law?: at para 107. I agree with that conclusion. In another case, when considering a request for disclosure about protection measures under a witness protection program, the Quebec Court of Appeal held that even though section 37 imposes a heavier burden on the Crown than sections 38 or 39, it does not require the Crown to demonstrate that disclosure will necessarily endanger the witness or the program, only that disclosure might impair all those interests: Minisini, 2008 QCCA 2188, 66 CR. (6th) 306 as summarized in David Watt, Watt ?3 Manual of Criminal Evidence 2016 (Toronto: Carswell, 2016) at 1126. [61] The statute only asks whether disclosure of the information ?would encroach upon a? privilege. I have already found that the requested information falls within investigative privilege. Thus, it follows that disclosure of the information would encroach upon that privilege, because a privilege is breached whenever the protected information is divulged. VI. Conclusion [62] For the reasons given, I conclude that the Crown has proved that disclosure of the information to which it objects would encroach upon police investigative technique privilege. Thus, I prohibit disclosure of the information covered by the objection, unless in later proceedings I authorize disclosure a?er undertaking the balancing considerations required in section 37(5). [63] Subject to submissions from counsel to clarify the scope of privilege, I ?nd that the prohibited disclosure encompasses the make, model and software of the MDI device deployed by CPS in the cases subject to these case management proceedings, and any ?irther information which would have the effect of disclosin the techni ue which the MDI obtains cellphone identi?er information [64] As this matter was heard in camera pursuant to section 37 of the Canada Evidence Act and deals with the determination of privilege over information, this judgment is sealed and must not be published or distributed in any way, except as directed by this court, and is not to be made available from the court ?le. These reasons are to be distributed only to Mr. Holtby and Mr. Kapoor. [65] I have already ordered that the audio recording and transcripts from July 12 and 13, 2017 are sealed. Also sealed are exhibits and 2 from the hearing, the af?davit of Sgt. Campbell af?rmed July 6, 2017, and the briefs of the Crown and of the amicus curiae, both ?led July 11, 2017. These materials must not be published or distributed in any way, except as directed by this court, and are not to be made available from the court ?le. [66] This sealing order and publication ban may be modi?ed at a later date by order of this court. [67] This decision. the transcripts from July 12 and 13. 2017.. and the af?davit of Sgt. Campbell af?rmed ulv 6. 2017 have been redacted and edited (with editing underlined) pursuant to mv decision dated October 27. 2017. which decision is sealed and subiect to a publication ban. 31an of update to paragraphs 64 and 65 above. I order that this decision as redacted and edited Page: 17 is unsealed and ma be ublished and distributed. In addition the transcri of the Jul 12 and 13, 2017 hearing and the af?davit of Sgt. Campbell af?rmed July 6. 2017. as redacted and edited, are unsealed and may be published and distributed. Heard on the 12'? and 13th day of July, 2017. Dated at the City of Calgary, Alberta this 15?? day of August, 2017. Redacted, edited and amended at the Gig of Calgary. Alberta this 30th day of October. 2017. G.H. Poelman J.C.Q.B.A. Appearances: Brian Holtby, Q.C. for the Crown Anil Kapoor, Kapoor Barristers Amicus Curiae