Preservation Demands and Orders
General Principles
Voluntary Request for Preservation
For greater certainty
487.0195 (1) For greater certainty, no preservation demand, preservation 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 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 or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
2014, c. 31, s. 20.
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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).
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.
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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
- (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.
Limitation
(5) A person who is under investigation for an offence referred to in paragraph (2)(a) 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.
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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 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 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 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 with respect to computer data that they preserved under a preservation demand or order made under section 487.012 or 487.013 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), a person who preserved computer data under a preservation demand or order made under section 487.012 or 487.013 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.
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