In R v Love, 2022 ABCA 269 (“Love”), the Alberta Court of Appeal recently upheld a production order requiring a foreign entity to produce data located outside of Canada to Canadian law enforcement. Love confirms that Canadian courts will likely continue to require foreign entities to comply with law enforcement requests compelling data, even where the entity is not the target of the investigation and the data is physically housed outside of Canada.
Love arose out of a criminal investigation for offences related to child pornography and luring. Police obtained a general production order from the Provincial Court requiring Facebook Inc.—an American corporation—to provide subscriber information for an Instagram account. Facebook Inc. was not a target of the investigation but housed the requested data that pertained to the accused.
The accused applied to quash the order, arguing that the Provincial Court judge had no jurisdiction to issue it because it would have extraterritorial application (i.e., because Facebook Inc. is an American entity and the data sought was in the United States).
The Provincial Court dismissed the application, finding that the production order did not have extraterritorial effect. According to the trial judge, since Facebook Inc. had a “virtual presence” in Alberta, the Provincial Court could issue a general production order to obtain data wherever the data might be stored (even if not in Canada).
Love Court Follows Existing Case Law Allowing Extraterritorial Reach
The Court of Appeal upheld the lower court’s decision, following the British Columbia Court of Appeal’s decision in British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5 (“Brecknell”). In Brecknell, the Court of Appeal held that a production order could compel Craigslist—an American company with no physical presence in Canada—to produce data to Canadian law enforcement. Again, Craigslist was not the target of the investigation but housed the relevant data. The Court of Appeal in Brecknell relied on the following:
- The realities of conducting business over the internet: A corporation can exist in more than one place at a time and its physical presence may have nothing to do with the circumstances of the offence. Further, Craigslist’s virtual presence was closely connected to the circumstances of the alleged offence because at least some elements of the offence were facilitated by relying on Craigslist’s virtual services. The Court held, “in the Internet era it is formalistic and artificial to draw a distinction between physical and virtual presence.”
- Statutory interpretation: 487.014(1) of the Criminal Code requires a “person” to produce a document in their “possession or control”. To meet the requirements of the section, one need only be a person with possession or control—the section does not stipulate that the location of possession or control matters.
- International law and a “real and substantial connection”: The Supreme Court of Canada decision of R v Hape, 2007 SCC 26 (“Hape”), customary international law, and international comity all support the conclusion that a general production order could issue to compel a foreign corporation to produce data to Canadian law enforcement. Since Craigslist conducted business in British Columbia, it had a “real and substantial connection” to Canada—it did not matter that Craigslist had no physical presence there.
The Court of Appeal in Love declined to follow contrary case law, notably In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018 CanLII 2369 (NL PC) (“487.014 Production Order”). In that case, the Newfoundland Provincial Court declined to make a production order against Facebook Inc. to be served in the United States. The court pointed to the lack of express language in s. 487.014(1) which would give the provision extraterritorial effect as well as the difficulties that a local court would have enforcing an order against a foreign person. The Love court distinguished 487.014 Production Order on the basis that a production order has “no impermissible extraterritorial effect when the person subject to the production order has a virtual presence in the local jurisdiction.” The Love court also considered Brecknell to be more in line with customary international law and international comity, as well as the modern approach to statutory interpretation. In particular, the Love court found that Brecknell properly considered the mischief that s. 487.014(1) was intended to address (namely, challenges with extraterritorial searches and timing issues that have been brought about by “inexpensive overseas data warehousing”).
Production orders are available to law enforcement to compel production even from non-targets of the investigation (for example, to assist in investigating a criminal offence where a customer is a suspect). Although Canadian case law appears to be trending towards requiring foreign companies to produce data in their possession or control, foreign organizations should carefully consider any request before automatically producing data, which may be subject to competing obligations (privacy or otherwise) in multiple jurisdictions. It cannot be assumed that every request on a foreign entity will withstand judicial scrutiny. For example, Canadian federal legislation authorizing data production to assist with a criminal investigation has a different purpose and legal standard than Canadian provincial legislation authorizing data production to assist with a civil action. Moreover, even within Canadian criminal legislation, law enforcement is required to meet different standards depending on the intrusiveness of the compulsion power.
R v Love, 2022 ABCA 269
Date of Decision: August 15, 2022