Production Orders and Preservation Demands and Orders

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 135-208

135

Production Orders

and Preservation

Demands and

Orders

5

I. Overview ............................................................ 136

II. Preservation Demands and Preservation Orders (Sections 487.012

and 487.013) ........................................................ 137

A. Introduction .................................................. 137

B. What Can Be Preserved by Preservation Demands and

Preservation Orders? ........................................... 139

C. Who Can Be the Subject of Preservation Demands and

Preservation Orders? ........................................... 140

D. The Test for Preservation Demands ................................ 141

E. The Duration of Preservation Demands ............................ 143

F. The Test for Preservation Orders .................................. 143

G. The Duration of Preservation Orders ............................... 146

H. Destruction of Data upon Expiration of Preservation Demands

and Preservation Orders ......................................... 146

I. Territorial Limits of Preservation Demands and Preservation Orders ..... 147

J. Voluntary Preservation .......................................... 148

K. Prohibition Against Compelling a Suspect to Preserve Computer Data ... 148

L. Conditions of Preservation Demands and Preservation Orders,

Including Prohibitions on Disclosure .............................. 149

M. Revoking or Varying Preservation Demands, Preservation Orders, and

Related Orders Prohibiting Disclosure ............................. 152

N. Challenging Preservation Demands, Preservation Orders, and

Related Orders Prohibiting Disclosure ............................. 153

III. Production Orders .................................................... 153

A. Introduction .................................................. 153

B. General Production Orders (Section 487.014) ....................... 154

C. Production Orders to Trace Communications (Section487.015) ........ 163

D. Production Orders for Historical Transmission Data (Section 487.016) ... 179

E. Production Order for Historical Tracking Data (Section487.017) ........ 181

F. Production Order for Limited Financial Information (Section487.018) ... 186

G. Miscellaneous Provisions Respecting Production Orders .............. 191

© [2021] Emond Montgomery Publications. All Rights Reserved.

136Search and Seizure

I. Overview

Preservation demands, preservation orders, and production orders are all recent addi-

tions to the repertoire of search and seizure tools available to the police for use in

criminal investigations. A preservation demand is a tool that police can use to require

a third party to preserve evidence until the police can get judicial authorization to

compel the third party to produce the evidence. No judicial authorization is needed

for this temporary tool, but it expires if judicial authorization is not then obtained.

A preservation order is a similar tool whereby police can get judicial authorization

to require a third party to preserve evidence, on a standard of reasonable grounds to

suspect, until the police can marshal their evidence and get proper judicial authoriz-

ation requiring the third party to produce the evidence on a standard of reasonable

grounds to believe.

This area of the law of search and seizure is highly technical, and this chapter is ne-

cessarily detailed and dense. The authors oer no apologies for that. In this data-driven

technological age, the search powers discussed below have taken on an increasingly

important role for police, lawyers, and judicial ocers.

Production orders were first introduced into the Criminal Code on September 15,

2004. Broadly stated, they were intended to provide a legal mechanism to compel

cooperative third parties in possession of relevant documents or data to produce

those documents or data to police.1

Prior to the introduction of production orders, police regularly served coopera-

tive third parties with ordinary section 487 search warrants. These warrants were

executed much as production orders are executed today: police would attend with

a copy of the warrant; the cooperative record-holder would assemble the required

documents or data and transfer them to the police upon presentation of the original

warrant. As soon as production orders became available, they replaced this informal,

cooperative practice and quickly became the stock-in-trade of criminal investigators.

On March 10, 2015, Bill C-13, the Protecting Canadians from Online Crime Act,2

came into force. Bill C-13 made myriad amendments to the Criminal Code, Canada

Evidence Act,3Competition Act,4 and Mutual Legal Assistance in Criminal Matters Act.5

Among these amendments were significant changes designed to modernize police

investigative powers. These changes included the wholesale repeal of the existing

production order regime and its replacement with a new, enhanced regime designed

both to address limitations that had been identified in the 2004 regime, and to

1 House of Commons Debates, 37-2, No 138 (29 September 2003) at 7933-44.

2 SC 2014, c 31.

3 RSC 1985, c C-5.

4 RSC 1985, c C-34.

5 RSC 1985, c-30 (4th Supp).

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter 5 Production Orders and Preservation Demands and Orders 137

respond to the advancing technologies of the digital era. In particular, the new regime

created five dierent kinds of production orders: a general production order avail-

able to obtain any kind of relevant documents, and four specialized production orders

available to obtain more limited (and less private) kinds of relevant documents. The

changes also included new police powers to compel a record-holder in possession or

control of relevant computer data to preserve the data pending a production order or

search warrant.

This chapter begins with a review of the ways the police can compel preservation

of relevant information pending a production order or search warrant, and then turns

to a review of the general and specialized production orders.

II. Preservation Demands and Preservation Orders

(Sections 487.012 and 487.013)

A. Introduction

The Criminal Code contains two processes with which police can compel preserva-

tion of relevant information pending a production order or search warrant: preservation

demands made pursuant to section 487.012, and preservation orders issued pursuant

to section 487.013. Both provisions are new: prior to 2015, there was no way that police

could legally compel a person to preserve relevant information in their possession or

control.

Before turning to the specific procedures relating to preservation demands and

orders, it is worthwhile to highlight that the power to compel preservation of rel-

evant information has become absolutely essential to law enforcement. In the past,

when transactional records were stored in tangible form, there was often little risk

that the records would be destroyed so soon after their creation that they would no

longer remain available to criminal investigators. But as technology has evolved, so

too have the data retention practices of many companies whose records are routinely

of interest to investigators. In particular, records held by telecommunications service

providers and Internet service providers are often highly relevant to criminal investi-

gations, yet these service providers are increasingly scaling back on both the kinds of

data they retain and the length of the time that they retain it. There is no doubt that

there are good economic and policy-based reasons that service providers may have to

limit their retention of data. But there is also no doubt that, unless and until Canada

legislates or regulates mandatory data retention practices, the potential loss of rel-

evant data will increasingly become a problem for criminal investigators. Consider

the following two examples.

. Cell Tower Location Data

Telecommunications service providers retain data respecting the cellular towers used

to transmit cellphone calls and text-based communications made by their customers.

© [2021] Emond Montgomery Publications. All Rights Reserved.