Preservation Demands and Orders
| This page was last substantively updated or reviewed January 2016. (Rev. # 98403) |
General Principles
Voluntary Request for Preservation
- For greater certainty
487.0195 (1) For greater certainty, no preservation demand, preservation order, keep account open or active order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving, to voluntarily keep an account open or active that the person is not prohibited by law from keeping open or active or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.
- No civil or criminal liability
(2) A person who preserves data, keeps an account open or active or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
2014, c. 31, s. 20; 2024, c. 17, s. 362
Preservation Demand
- Preservation demand
487.012 (1) A peace officer or public officer may make a demand to a person in Form 5.001 requiring them to preserve computer data that is in their possession or control when the demand is made.
- Conditions for making demand
(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that
- (a) an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state;
- (b) in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and
- (c) the computer data is in the person’s possession or control and will assist in the investigation of the offence.
- Limitation
(3) A demand may not be made to a person who is under investigation for the offence referred to in paragraph (2)(a) [preservation demand – conditions for demand – suspect an offence].
- Expiry and revocation of demand
(4) A peace officer or public officer may revoke the demand by notice given to the person at any time. Unless the demand is revoked earlier, the demand expires
- (a) in the case of an offence that has been or will be committed under this or any other Act of Parliament, 21 days after the day on which it is made; and
- (b) in the case of an offence committed under a law of a foreign state, 90 days after the day on which it is made.
- Conditions in demand
(5) The peace officer or public officer who makes the demand may impose any conditions in the demand that they consider appropriate — including conditions prohibiting the disclosure of its existence or some or all of its contents — and may revoke a condition at any time by notice given to the person.
- No further demand
(6) A peace officer or public officer may not make another demand requiring the person to preserve the same computer data in connection with the investigation.
2004, c. 3, s. 7; 2014, c. 31, s. 20.
[annotation(s) added]
Preservation Orders
- Preservation order — computer data
487.013 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to preserve computer 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 5.002 [forms]
- (a) that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state, that the computer data is in the person’s possession or control and that it will assist in the investigation of the offence; and
- (b) that a peace officer or public officer intends to apply or has applied for a warrant or an order in connection with the investigation to obtain a document that contains the computer data.
- Offence against law of foreign state
(3) If an offence has been committed under a law of a foreign state, the justice or judge must also be satisfied that a person or authority with responsibility in that state for the investigation of such offences is conducting the investigation.
- Form
(4) The order is to be in Form 5.003 [forms].
- Limitation
(5) A person who is under investigation for an offence referred to in paragraph (2)(a) [preservation order re computer data] may not be made subject to an order.
- Expiry of order
(6) Unless the order is revoked earlier, it expires 90 days after the day on which it is made.
2004, c. 3, s. 7; 2014, c. 31, s. 20.
[annotation(s) added]
Destruction of Preserved
- Destruction of preserved computer data and documents — preservation demand
487.0194 (1) A person to whom a preservation demand is made under section 487.012 [preservation demand] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the demand expires or is revoked, unless they are subject to an order made under any of sections 487.013 to 487.017 [certain preservation and production orders] with respect to the computer data.
- Destruction of preserved computer data and documents — preservation order
(2) A person who is subject to a preservation order made under section 487.013 [preservation order re computer data] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the order expires or is revoked, unless they are subject to a new preservation order or to a production order made under any of sections 487.014 to 487.017 with respect to the computer data.
- Destruction of preserved computer data and documents — production order
(3) A person who is subject to a production order made under any of sections 487.014 to 487.017 [certain preservation and production orders] with respect to computer data that they preserved under a preservation demand or order made under section 487.012 [preservation demand] or 487.013 [preservation order re computer data] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the earlier of
- (a) the day on which the production order is revoked, and
- (b) the day on which a document that contains the computer data is produced under the production order.
- Destruction of preserved computer data and documents — warrant
(4) Despite subsections (1) to (3) [preservation and production of computer data and documents], a person who preserved computer data under a preservation demand or order made under section 487.012 [preservation demand] or 487.013 [preservation order re computer data] shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section when a document that contains the computer data is obtained under a warrant.
2014, c. 31, s. 20.
[annotation(s) added]
Keep Account Open Order
Keep account open or active order
487.0131 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to keep an account specified in the order open or active unless the holder of the account requests that the person close or deactivate the account.
Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.0031 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) keeping the account open or active will assist in the investigation of the offence.
Form
(3) The order is to be in Form 5.0032.
Notification
(4) The order is to require the person to notify a peace officer or public officer named in the order as soon as practicable after the account is closed or deactivated at the request of the holder of the account.
Limitation
(5) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.
Expiry of order
(6) Unless the order is revoked earlier, it expires 60 days after the day on which it is made.
Renewals
(7) A justice or judge may renew the order for a period of not more than 60 days on ex parte application made by a peace officer or public officer indicating the reason and period for which the renewal is required.
Conditions for renewal
(8) Before renewing the order, the justice or judge must be satisfied by information on oath in Form 5.0031 that the conditions specified in subsection (2) are met.
2024, c. 17, s. 356.
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- Review of Order
- Application for review of keep account open or active order
487.01921 (1) A person who is subject to an order made under section 487.0131 may apply in writing to the justice or judge who made the order, or to a judge in the judicial district where the order was made, to revoke or vary the order.
- Notice required
(2) The person may make the application only if they give at least three days’ notice of their intention to do so to a peace officer or public officer named in the order.
- Compliance with order
(3) The person must comply with the order until a decision is made with respect to the application.
- Hearing
(4) The hearing of the application must be commenced within 14 days after the application is made or as soon as practicable after that period.
- Revocation or variation of order
(5) The justice or judge may revoke or vary the order if they are satisfied that it is unreasonable in the circumstances to require the person to keep the account open or active.
2024, c. 17, s. 361
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