Production Orders
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General Principles
A Production Order is a judicial authorization that compels a person, including an organization, to disclose documents and records to an authorized peace officer.[1]
- Compared to Search Warrants
A production order cannot be used to circumvent standard search warrant to invade privacy of an accused.[2]
- History
On March 9, 2015, Protecting Canadians from Online Crime Act 2014, c. 31 (Bill C-13) came into force re-drafting the production order provisions. General production orders moved from 487.012 to 487.014, 487.013 to 487.018.[3]
Section 487.012 and 487.013 (pre-2015) came into force September 15, 2004.[4]
- ↑
Canadian Broadcasting Corp. v Manitoba (Attorney General), 2009 MBCA 122 (CanLII), per Steel JA, at para 24 (it compels "third parties in possession of information relevant to a criminal investigation to produce and generate documents and data for law enforcement agencies.")
- ↑ R v Huynh, 2012 ABCA 37 (CanLII), per curiam, at para 45
- ↑ see pre-2015 amendment version
- ↑ see pre-2015 amendment version
Procedure
Unlike warrants, there is no need for the filing of a Report to Justice upon seizing records.[1] The only exception is for Trace Specified Communications Production Orders under s. 487.015(6).
- ↑
There is varying case law on this point
cf. R v Croft, 2014 ABQB 206 (CanLII), per Burrows J - albeit under the pre-2014 production provisions
Types of Production Orders
- General Production Orders (487.014)
- Trace Specified Communications Production Orders (487.015)
- Transmission Data Production Orders (487.016)
- Production Orders for Tracking Data (487.017)
- Production Orders for Financial Data (487.018)
Compelling Production
- Particulars — production orders
487.0192 (1) An order made under any of sections 487.014 [general production orders] and 487.016 to 487.018 [production orders for data] must require a person, financial institution or entity to produce the document to a peace officer or public officer named in the order within the time, at the place and in the form specified in the order.
- Particulars — production order to trace specified communication
(2) An order made under section 487.015 [production order to trace specified communication] must require a person to produce the document to a peace officer or public officer named in the order as soon as feasible after they are served with the order at the place and in the form specified in the order.
- Form of production
(3) For greater certainty, an order under any of sections 487.014 to 487.018 may specify that a document may be produced on or through an electro-magnetic medium.
- Non-application
(4) For greater certainty, sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] do not apply to a document that is produced under an order under any of sections 487.014 to 487.018.
...
2014, c. 31, s. 20.
[annotation(s) added]– CCC
Production Records as Evidence
487.0192
...
- Probative force of copies
(5) Every copy of a document produced under section 487.014 [general production orders] is admissible in evidence in proceedings under this or any other Act of Parliament on proof by affidavit that it is a true copy and has the same probative force as the document would have if it were proved in the ordinary way.
- Canada Evidence Act
(6) A document that is prepared for the purpose of production is considered to be original for the purposes of the Canada Evidence Act.
2014, c. 31, s. 20.– CCC
Application to Revoke or Vary a Production Order
- Application for review of production order
487.0193 (1) Before they are required by an order made under any of sections 487.014 to 487.018 [production orders] to produce a document, a person, financial institution or entity 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, institution or entity may make the application only if they give notice of their intention to do so to a peace officer or public officer named in the order within 30 days after the day on which the order is made.
- No obligation to produce
(3) The person, institution or entity is not required to prepare or produce the document until a final decision is made with respect to the application.
- Revocation or variation of order
(4) The justice or judge may revoke or vary the order if satisfied that
- (a) it is unreasonable in the circumstances to require the applicant to prepare or produce the document; or
- (b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law.
2014, c. 31, s. 20.
– CCC
The terms of all production orders can be varied under s. 487.019(3):
487.019
...
- Power to revoke or vary order
(3) On ex parte application made by a peace officer or public officer, the justice or judge who made the order — or a judge in the judicial district where the order was made — may, on the basis of an information on oath in Form 5.0081 [forms], revoke or vary the order. The peace officer or public officer must give notice of the revocation or variation to the person who is subject to the order as soon as feasible.
2014, c. 31, s. 20; 2019, c. 25, s. 193.
[annotation(s) added]– CCC
The decision to vary or revoke under s. 487.0193(4)(b) is a discretionary one on the part of the court.[1]
- Revocation or Variance for Reasons of Protected Information
Section 487.0193(4)(b) permits a judge to revoke or vary an order where the order would disclose information that is "privileged or otherwise protected from disclosure by law".[2]
- ↑
R v Nova Scotia (Ombudsman), 2017 NSCA 31 (CanLII), per Fichaud JA, at para 32
- ↑
Nova Scotia (Ombudsman), ibid., at para 25
Misc Aspects of Production Orders
Court can add conditions to all types of production orders from s. 487.014 to 487.017.
- Conditions in preservation and production orders
487.019 (1) An order made under any of sections 487.013 to 487.018 [provisions on production orders] may contain any conditions that the justice or judge considers appropriate including, in the case of an order made under section 487.014 [general production orders], conditions to protect a privileged communication between a person who is qualified to give legal advice and their client.
...
2014, c. 31, s. 20; 2019, c. 25, s. 193.– CCC
All types of production order from s. 487.014 to 487.017 have national application.
487.019
...
- Effect of order
(2) The order has effect throughout Canada.
...
2014, c. 31, s. 20; 2019, c. 25, s. 193.– CCC
Protection From Liability
- 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.– CCC
- Self-incrimination
487.0196 No one is excused from complying with an order made under any of sections 487.014 to 487.018 [production orders] on the ground that the document that they are required to produce may tend to incriminate them or subject them to a proceeding or penalty. However, no document that an individual is required to prepare may be used or received in evidence against them in a criminal proceeding that is subsequently instituted against them, other than a prosecution for an offence under section 132 [perjury – punishment], 136 [witness giving contradictory evidence] or 137 [fabricating evidence].
2014, c. 31, s. 20.– CCC
Breach of Production Orders
- Offence — preservation or production order
487.0198 A person, financial institution or entity that contravenes an order made under any of sections 487.013 to 487.018 [provisions on production orders] without lawful excuse is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than six months, or to both.
2014, c. 31, s. 20.
[annotation(s) added]– CCC
Production by Consent
Where documents are voluntarily and lawfully provided to a peace officer who is executing his duties, there is no need for a production order.[1]
Section 25 protects those acting in authority from criminal liability.[2]
- ↑ see s. 487.014 found at General Production Orders
- ↑ see Acting in Authority
Sealing Orders
Costs
A company that is subject to a production order will normally have to bear the costs involved with producing the records. [1]
The authorizing justice does not have power to order that the target of the production order be compensated for the cost associated with compliance.[2]
- ↑ Canada (Attorney General) v Pacific International Securities Inc., 2006 BCCA 303 (CanLII), per Smith JA
- ↑ Tele-Mobile Co. v Ontario, [2008] 1 SCR 305, 2008 SCC 12 (CanLII), per Abella J