General Production Orders

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 86416)

General Principles

Section 487.014 authorizes peace officers and public officers to obtain copies of original records held by third parties.[1]

General production order

487.014 (1) Subject to sections 487.015 to 487.018 [transmission related production orders], on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 [forms] that there are reasonable grounds to believe that

(a) an offence has been or will be committed under this or any other Act of Parliament; and
(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
Form

(3) The order is to be in Form 5.005 [forms].

Limitation

(4) A person who is under investigation for the offence referred to in subsection (2) [general production orders – conditions for making order] may not be made subject to an order.
2004, c. 3, s. 7; 2014, c. 31, s. 20.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 487.014(1), (2) and (3)

Under s. 487.014(2), the applicant must establish grounds on the same standard as search warrant of reasonable and probable grounds. [2]

The obligation to produce documents under a production order extends beyond the expiration date on the order.[3]

Requirements to Issue Order

The court must be satisfied that:[4]

  1. an offence against this Act or any other Act of Parliament has been committed;
  2. the documents or data will afford evidence respecting the commission of the offence; and
  3. the person who is subject to the order has possession or control of the documents or data.
Documents

Under 487.011, "documents" refers to "any medium on which is recorded or marked anything that is capable of being read or understood by a person or a computer system or other device.". Under that same section the meaning "data" simply adopts the meaning from s. 342.1(2), which defines it as "representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer system".

Production of Communication Records

Historical communications held by a telecommunications company can be obtained by a production order and are not considered to be the product of interception.[5]

A production order that intends to obtain prospective communications is invalid as it may amount to an interception.[6]

International Social Media Records

The conventional method of obtaining records from website servers existing in the US is through the MLAT process.[7] There is some appellate suggestion that these records may be obtainable through a s. 487.014 order where the website conducts its business within the province.[8]

There is a requirement that there be a "virtual presence" of the record-holder in Canada. Considerations on this should include consideration of whether the company:[9]

  • does business in Canada
  • has a subsidiary in Canada with employees or agents
  • direct activities in Canada
  • offers services to, receive revenue from or ship products to Canada
  • exclude Canada-based users or customers
Proper Authorizing Court

The power to authorize an order under s. 487.014 is granted to "judges" and "justices". Under s. 2 of the Code, this includes Justices of the Peace, provincial court judges, and justices of a superior court.[10]

  1. This does not include financial records, tracking or transmission data
  2. R v Woodroffe, 2006 CanLII 9308 (ON SC), per Valin J - refers to 487.012(3) which is now 487.14(2)
  3. R v Goulbourne, 2011 ONSC 774 (CanLII), 267 CCC (3d) 568, per Sosna J
  4. Tele‑Mobile Co. v Ontario, 2008 SCC 12 (CanLII), [2008] 1 SCR 305, per Abella J (in reference to the older version found in s. 487.012(3))
  5. see R v Jones, 2016 ONCA 543 (CanLII), 338 CCC (3d) 591, per MacPherson JA
  6. R v TELUS Communications Co., 2013 SCC 16 (CanLII), [2013] 2 SCR 3, per Abella J
  7. See MLAT process
  8. British Columbia (Attorney General) v Brecknell, 2018 BCCA 5 (CanLII), per Harris JA
    R v Love, 2022 ABCA 269 (CanLII)
  9. re Textplus, [2022] 163 O.R. (3d) 737
  10. Definition of Judicial Officers and Offices

"Afford Evidence"

The phrase "will afford evidence respecting the commission of the offence" is the same standard as that used for General Warrants.

The reference to "evidence with respect to the commission of an offence" is said to be "encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence" and includes "anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability."[1]

Records such as doctor's notes that record a prior statement in only "summary form" such that it could not form the "basis for cross-examination under s. 10(1) or, for that matter, under s. 11 of the Canada Evidence Act" will not be required for full answer and defence and so a judge may refuse to order production.[2] Similarly, failure to order the production of records in relation to collateral issues will not impair the right to full answer and defence.[3]

Therapeutic records that are not verified for accuracy are "inherently unreliable."[4]

  1. CanadianOxy Chemicals Ltd v Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743, per Major J, at para 15
  2. R v Bradley, 2015 ONCA 738 (CanLII), 331 CCC (3d) 511, per Watt JA, at paras 107 to 109
  3. Bradley, ibid., at para 109
  4. Bradley, ibid., at para 110
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L'Heureux‑Dubé J, at para 165

Media Outlets

When dealing with production orders targeting media outlets, it is necessary for the reviewing judge to account for other non-statutory factors.[1] The factors that are considered when dealing with a production order for media outlets are the same as those for warrants for media outlets.[2]

Factors to be considered include:[3]

  1. the justice of the peace should consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant.
  2. The justice of the peace should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation. They are truly an innocent third party. This is a particularly important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant.
  3. The affidavit in support of the application must contain sufficient detail to enable the justice of the peace to properly exercise his or her discretion as to the issuance of a search warrant.
  4. Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted.
  5. If the information sought has been disseminated by the media in whole or in part, this will be a factor which will favour the issuing of the search warrant.
  6. If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation, so that the media organization will not be unduly impeded in the publishing or dissemination of the news.
  7. If, subsequent to the issuing of a search warrant, it comes to light the authorities failed to disclose pertinent information that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid.
  8. Similarly, if the search itself is unreasonably conducted, this may render the search invalid.
  1. Canadian Broadcasting Corp v Manitoba (Attorney General), 2009 MBCA 122 (CanLII), 250 CCC (3d) 61, per Steel JA
  2. Edmonton Journal v Canada (Justice), 2013 ABPC 356 (CanLII), per Dixon J, at para 9
  3. Edmonton Journal v Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 SCR 1326, per Cory J

Non-Disclosure Orders

See also: Sealing and Unsealing Judicial Authorizations#Non-Disclosure Order for Production Orders

See Also