Canadian Orders Can Compel Production of Data Controlled by US Companies
| Author | Fraser M. Kelly |
| Profession | General Counsel, Ministry of the Attorney General (Ontario) (retired) |
| Pages | 523-545 |
523
twenty-two
Canadian Orders Can Compel Production
of Data Controlled by US Companies
FRASER M. KELLY*
A. INTRODUCTION
Sometimes Canadian police can obtain a warrant to retrieve and use
account passwords found in a Canadian’s computer. Doing so allows
them to obtain Canadians’ communications content data wherever it may
be stored. When that approach is unavailable, a request under the Canada–
US Mutual Legal Assistance Treaty must be sought to obtain the content
* General Counsel, Ministry of the Attorney General (Ontario) (retired). e views
herein are those of the author alone and may not reect the views of the Ministry
of the Attorney General (Ontario).
In R v Strong, ONSC [Strong], the legality of this technique was upheld.
ere, a general warrant under s . of the Criminal Code, RSC , c C- [Code]
was obtained requiring a (non-accused) person to turn over an unlocked cellphone.
e warrant permitted police to change the accused’s Gmail password then access and
download some of the accused’s emails. e court held it was a “relatively simple solu-
tion for obtaining the sought-after data without engaging in the metaphysical exercise
of determining where the data resides” (Strong at para ). e court placed “little
weight on the impact of the technique on Google,” pointing out that purely domes-
tic warrants “routinely authorize police to conduct covert entries by defeating alarm
systems and/or locks. e technique here is essentially no dierent” (Strong at para ).
Content data, for the purposes of this chapter, means information concerning the sub-
stance, purport, or meaning of a communication. is is the same denition adopted
in the US Stored Communications Act, US Code c § () [SCA].
Treaty Between the Government of Canada and the Government of the United States of Amer-
ica on Mutual Legal Assistance in Criminal Matters, () Can TS No [MLAT].
.
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data because it is usually controlled by a US company that will not comply
with a Canadian production order. at is a problem. Canadian police
and prosecutors live with a harsh truth, namely, that treaty requests are
often impractical because they are too slow. e common refrain “Can-
adian police do not need production orders because they can always get
the data by treaty” is the mantra of those lacking experience prosecuting
criminal cases in Canada. at refrain is simply not true. e treaty route
is not “always” available for practical reasons. Post-Jordan, waiting for
the data to arrive can become so problematic that forging on without
even attempting to obtain all relevant evidence or data is often the safer
course for the prosecution. In the insightful words of one court, it “seems
reasonably clear that the MLAT provides a slow and uncertain mech-
anism of investigation.” In contrast, obtaining the data by a production
order could be much faster than using the treaty (if companies comply)
and aord better protection to Canadians than treaty requests, for two
reasons. First, obtaining a production order requires Canadian police to
provide reasonable grounds to a court — unlike treaty requests, which do
not. Second, Canadian defendants have a right to review the adavit
material led to obtain a production order, but generally have no access
to privileged state-to-state treaty requests or the adavit material used
to obtain a US warrant.
Unless US companies change how they respond to Canadian produc-
tion orders, Canadian courts will eventually need to weigh in. Alternatively,
Parliament could enact some form of data sovereignty laws requiring
businesses that receive Canadians’ data to keep it within reach of Can-
adian judicial orders.
is chapter posits that Canadian jurists have jurisdiction to issue
production orders for content data controlled by US companies. It also
A production order is issued under s . of the Code and allows police to require
persons (including corporate entities) that hold evidence to produce it.
In R v Jordan, SCC [Jordan], the Supreme Court of Canada laid out its
current approach on the right to be tried within a reasonable time under s (b) of the
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Canada Act (UK), , c [Charter].
British Columbia (Attorney General) v Brecknell, BCCA at para [Brecknell].
Schreiber v Canada (Attorney General), [] SCR .
Data sovereignty, data residency, and data localization laws have been enacted in various
forms by many countries globally. A comparative analysis of the nature of these
regimes’ breadth and scope is beyond the scope of this paper.
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