Trace Specified Communications Production Orders

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General Principles

Section 487.015 permits a judge or justice to order the disclosures of "transmission data" that will lead to identify the persons involved in the transmission. The form and content is similar that of s. 487.016 and 487.017 concerning "tracking data" and "transmission data".

Production order to trace specified communication
487.015 (1) On ex parte application made by a peace officer or public officer for the purpose of identifying a device or person involved in the transmission of a communication, a justice or judge may order a person to prepare and produce a document containing transmission data that is related to that purpose and that is, when they are served with the order, in their possession or control.
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;
(b) the identification of a device or person involved in the transmission of a communication will assist in the investigation of the offence; and
(c) transmission data that is in the possession or control of one or more persons whose identity is unknown when the application is made will enable that identification.

Form
(3) The order is to be in Form 5.006.
Service
(4) A peace officer or public officer may serve the order on any person who was involved in the transmission of the communication and whose identity was unknown when the application was made

(a) within 60 days after the day on which the order is made; or
(b) within one year after the day on which the order is made, in the case of an offence under section 467.11, 467.12 or 467.13, an offence committed for the benefit of, at the direction of or in association with a criminal organization, or a terrorism offence.

Limitation
(5) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.
Report
(6) A peace officer or public officer named in the order must provide a written report to the justice or judge who made the order as soon as feasible after the person from whom the communication originated is identified or after the expiry of the period referred to in subsection (4), whichever occurs first. The report must state the name and address of each person on whom the order was served, and the date of service.
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 order must be sought for the purpose of "identifying a device or person involved in the transmission of a communication"
  4. the identification of the device or person involved in the transmission of a communication "will assist in the investigation of the offence"
  5. the transmission data is in the possession or control of an unknown person or persons; and
  6. the transmission data "will enable" the identification of the unknown person or persons.

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]

Transmission Data
Section 487.011 defines "transmission data":

Definitions
487.011 The following definitions apply in this section and in sections 487.012 to 487.0199.
...
data means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device. (données)
...
transmission data means data that

(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;
(b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and
(c) does not reveal the substance, meaning or purpose of the communication.

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. 487.015(2)
  2. see Definition of Judicial Officers
  3. see s. 487.011
  4. See Peace Officers
  5. see s. 487.015(3) "The order is to be in Form 5.006."

See Also