Production Orders for Tracking Data

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General Principles

Section 487.017 permits a judge or justice to order the disclosures of "tracking data" (i.e. location data) records. The form and content mirrors that of s. 487.017 concerning "transmission data".

Production order —  tracking data
487.017 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to prepare and produce a document containing tracking data that is in their possession or control when they receive the order.

Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament; and
(b) the tracking data is in the person’s possession or control and will assist in the investigation of the offence.

Form
(3) The order is to be in Form 5.007.
Limitation
(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.
2004, c. 3, s. 7; 2014, c. 31, s. 20.


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Requirements to Make the Order
Before a justice or judge can make an order they must be satisfied that:

  1. an offence has been (or will be) committed;
  2. the offence is any offence under the Criminal Code or federal legislation;
  3. the tracking data is in the possession or control of a person; and
  4. the tracking data "will assist in the investigation of the offence".

The standard of proof is "reasonable grounds to suspect".[1]

Judge or Justice
The reference in s. 487.011 to "justice or judge" will refer to a justice of the peace, provincial court judge or a superior court judge.[2]

Public Official or Peace Officer
Under s. 487.011, "public official" means "a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament."[3]

A peace officer is defined under s. 2.[4]

Tracking Data
Section 487.011 defines "tracking data":

Definitions
487.011 The following definitions apply in this section and in sections 487.012 to 487.0199.
...
tracking data means data that relates to the location of a transaction, individual or thing.
...
2004, c. 3, s. 7; 2014, c. 31, s. 20.


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Form of the Order
The order for production should use Form 5.007.[5]

  1. see s. 487.017(2)
  2. see Definition of Judicial Officers
  3. see s. 487.011
  4. See Peace Officers
  5. see s. 487.017(3) "The order is to be in Form 5.007."

See Also