Which Production Order Is Appropriate?

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 74-77

74 Police Powers / Search and Seizure / Search and Seizure with a Warrant

1.1(b)(ix) Which Production Order Is Appropriate?

Is the information

sought transmission

data?1

Is the information sought

tracking data?5

No

Yes

Is the identity of the

person holding

the data known?2

Is the information

sought financial

data?7

s 487.0153

(reasonable

suspicion)

s 487.0164

(reasonable

suspicion)

s 487.0176

(reasonable

suspicion)

s 487.0188

(reasonable

suspicion)

s 487.0149

(reasonable

grounds)

Yes

Yes

Yes

No

No

No

The Criminal Code, RSC 1985, c C-46 [Code] contains a variety of production or-

ders that are used when the information is sought from a third party rather

than a suspect, and the target of the search can be expected to cooperate. In

such cases, it is more ecient to have the third party produce material from

its own records rather than have the state attempt to nd the relevant infor-

mation. Broadly speaking, the grounds for obtaining a general production

order are identical to those for obtaining a search warrant, in that reason-

able grounds to believe that an oence has been committed and the evidence

sought will provide evidence of that oence must be shown. However, several

specic production orders dealing with particular types of information, each

of which is seen to attract less of a privacy interest than most information,

are also set out in the Code. These production orders are available based on

reasonable suspicion rather than reasonable grounds. All these production

orders are supported by preservation demands and orders in ss 487.012 and

487.013, which can require a person in possession or control of computer

data to preserve it for a short period of time: twenty-one days when made by

a peace ocer (a demand) and ninety days when made by a justice (an order).

See, generally, the discussion in Steve Coughlan, Criminal Procedure, 3d ed (To-

ronto: Irwin Law, 2016) at ch 4, s C(1)(b)(iv), Other Statutory Search Warrant

Provisions, and s C(2)(b)(i), Is the Law Itself Reasonable, Searches with a War-

rant: General.