Law enforcement agencies have a variety of powers in their tool belt to assist in the investigation of crime and the collection of evidence. This article is the first in a series focused on investigative powers.
We begin the series with production orders. Production orders are a powerful tool the police can rely on to collect evidence relevant to a criminal investigation from those who are not themselves under investigation. In 2015, the Protecting Canadians from Online Crime Act (Bill C-13) came into force, which amended the Criminal Code of Canada’s production order provisions. Production orders are becoming increasingly important in a world with new technologies, and where large amounts of information about individuals are collected and stored by organizations, such as banks, hospitals, and telecommunication companies.
So what exactly is a production order?
In a nutshell, a production order compels a 3rd party, who is not the accused, to produce evidence relevant to a criminal investigation and deliver it to the police within a certain period of time. The evidence that can be compelled falls under 2 main categories: documents and data.
Under s. 487.014(1) of the Criminal Code, law enforcement agencies can secure a general production order. A justice or judge may order a person to: 1) produce copies of documents in their possession or control; or 2) prepare and produce a document containing data in their possession or control.
In addition to general production orders, ss. 487.015–487.018 of the Criminal Code allow the police to apply for specific production orders. These production orders are used for collecting transmission data, tracking data, financial data, and to trace specific communications.
Under what circumstances can the police secure a production order?
A judge must be satisfied that there are reasonable grounds to believe:
(a) an offence has been or will be committed under the Criminal Code or any other Act of Parliament; and
(b) the document or data is in the person’s possession or control, and will afford evidence respecting the commission of the offence.
Production orders are obtained through ex parte applications, meaning the police can obtain the orders without notice to the person subject to them. The police may contact the party subject to the order ahead of time to ascertain whether it possesses any documents or data relevant to the investigation, but this is not required.
A judge can also place conditions on production orders that they consider to be appropriate. For example, orders can contain conditions to protect a privileged communication between a lawyer and their client.
Challenging production orders
In R. v. Vice Media Canada Inc., 2018 SCC 53, the Supreme Court of Canada outlined the avenues available for parties (often organizations) to challenge production orders. They have the following 2 options:
- They can pursue a statutory right of review under s. 487.0193(1) of the Criminal Code. To be successful, the reviewing judge must be satisfied that:
- (a) it would be 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.
- They can pursue an application for certiorari in the Superior Court, provided the order was not made by a justice of a Superior Court. The Court will consider whether the evidence before the issuing judge was sufficient for the issuance of the production order.
Risk to the 3rd party
No one is excused from complying with a production order made under ss. 487.014-487.018 on the ground that the document may incriminate them or subject them to a proceeding or penalty.
That said, no document that a 3rd party is required to prepare may be used or received in evidence against that person in a subsequent criminal proceeding instituted against them. The exception is a prosecution for an offence under s. 132 (perjury), s. 136 (contradictory evidence), or s. 137 (fabricating evidence).
The maximum penalty for failure to comply with a production order is $250,000 or 2 years less a day in prison, or both.
In sum, production orders are a powerful investigative tool available to law enforcement agencies. If you require advice relating to production orders, you should contact a lawyer in your jurisdiction.
Blog posts are not legal advice.