A production order requires the custodian of documents (usually a company or organization) to deliver or make available the documents to persons such as law enforcement officials within a specified period. Production orders exist in some federal laws, such as the Competition Act. Where a legislation specifies, a Canadian Judge may issue a Production Order in relation to a foreign entity, such as a company operating out of the United States.
The Criminal Code generally provides that law enforcement agencies cannot obtain documents or information without having reasonable grounds to believe that an offence has been or will be committed. This requirement is a safeguard that balances the state’s need to obtain evidence of a crime with the privacy interests of a person holding information.
S 487.014 of the Criminal Code allows for a judge to authorize a Production Order in relation to a criminal case. However, that section does not give a Court the ability to issue a Production Order against a foreign entity.
In R v Love, 2022 ABCA 269, the Alberta Court of Appeal recently ruled that a court in Canada can issue a s 487.014 Production Order for a company overseas if two preconditions are met: 1) There is a real and substantial connection between Canada and the illegal activity at issue, and 2) the company has a virtual presence in Canada. The decision affirms the British Columbia ruling in British Columbia (Attorney General) v Brecknell, 2018 BCCA 5.
The implications of this decision are significant. It gives Courts in Alberta lawful basis to issue Canadian Production Orders against foreign entities. A Canadian Court only has the jurisdiction to enforce an order made in Canada.
It remains to be seen as to whether the Appellant in R v Love will seek leave to appeal to the Supreme Court of Canada.