Ontario Court of Justice
Date: 2019-10-24 Location: Newmarket
Between:
Her Majesty the Queen Applicant
Ex Parte Application s 487.014
Endorsement
KENKEL J.:
[1] The Crown applies for a General Production Order under s 487.014 to compel GoDaddy.com LLC to disclose specific records to the York Regional Police.
[2] The Information to Obtain (ITO) shows there are reasonable grounds to believe that a specified offence has been committed contrary to the Criminal Code and that the documents and data requested are in the company's control and will afford evidence with respect to the commission of that offence.
[3] The ITO disclosed that this is the second application for the order requested. The first application was denied on October 17, 2019 on the basis that the Justice of the Peace found there was no jurisdiction to issue a production order for a United States company located in that country.
[4] A production order has effect throughout Canada without further endorsement – s 487.019(2). That section notes a difference between production orders and search warrants before Bill C-76, but it does not address the issue of extra-territoriality. The British Columbia Court of Appeal considered s 487.014 in relation to that issue and held that a production order may issue only against a person in Canada – British Columbia (AG) v British Columbia (Prov Ct Judge) 2018 BCCA 5 at para 34.
[5] The issue in the BC case was whether the online business Craigslist was a person in Canada by virtue of their business activities in this country. The court held that either a physical presence or a virtual presence is sufficient to satisfy that criteria. The court explained at paragraph 48 that courts in the United States have recognized the authority of subpoenas and similar orders issued by other countries on that basis. The fact that the MLAT (Mutual Legal Assistance in Criminal Matters Treaty) process may provide another possible route to obtain such information does not deprive courts here of jurisdiction to issue an order under 487.014.
[6] The information in the ITO shows that GoDaddy conducts business online in Canada and maintains a virtual presence here. That is sufficient presence in Canada to satisfy the requirement in s 487.014. The other requirements of that section have been met and the order has been made on that basis.
Delivered: 24 October, 2019.
Justice Joseph F. Kenkel