Ontario Court of Justice

Date: 2024 12 05 Court File No.: NORFOLK 2611-24-000292

Between:

HIS MAJESTY THE KING

Ex Parte Application for Production Order

Before: Justice of the Peace K.W. Bouchard (In Chambers)

Reviewed on: December 3rd, 2024 Reasons for Judgment released on: December 5th, 2024

Justice of the Peace K.W. Bouchard

[1] The Crown applies for a General Production Order under s 487.014 to compel Binance Holdings Ltd/Nest Services Ltd (or designate) to disclose specific records to the Norfolk 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 of Canada (the CCC) 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] While Binance/Nest does not dispute that they possess these 3rd party records; they do dispute the jurisdiction for this Canadian court to make an order and in their filing (marked Appendix A) with the Ministry of the Attorney General (MAG) suggest that the Mutual Legal Assistance in Criminal Matters Treaty (MLAT) is the proper avenue for such an application for an order. For the reasons I’ll outline I reject Binance/Nest’s filing with MAG, and make a finding that this court does have jurisdiction over Binance/Nest to make this order.

[4] First, this court has jurisdiction to issue production orders that have effect throughout Canada without further endorsement – s 487.019(2). Second, in Brecknell, the British Columbia Court of Appeal (BCCA) reviewed the criteria for issuing production orders to corporate entities, such as Binance/Nest in the instant case. They found that corporate entities are persons for purposes of search/production orders and that physical presence in Canada is not required; rather a finding of a virtual presence is sufficient, if the court can also find that there is a real and substantial connection. I am persuaded by this decision, and apply it to this application. Third, I have reviewed the decision by Kenkel J, a decision of the Ontario Court of Justice (ONCJ), where that honourable court applied the same analysis for a similar online corporate entity (GoDaddy). I turn next to the substance of the application.

[5] The information in the ITO shows that Binance/Nest conducts business online in Canada and maintains a virtual presence here. The applicant states four criteria that they believe demonstrates the real and substantial connection the corporate entity has to Canada:

(1) Legacy Accounts – Binance/Nest acknowledge they are in the process of winding down their Canadian Legacy accounts that were opened prior to their formal withdrawal from the Canadian market. These accounts number in the hundreds of thousands, and there is estimated to be tens of millions of dollars within these accounts. (2) Transaction Fees – The applicant states that even if set to liquidation status, the legacy accounts would still form a revenue source for Binance/Nest which would originate from Canadian account holders and Canadian funds. (3) Canadian Employees – The applicant states that an open-source search shows that Binance/Nest have current Canadian employees, residing in Canada. (4) Canadian Purchases – The applicant states that open-source information, available on the corporate website, shows that Binance/Nest still accept purchases for crypto currencies and other products in Canadian currency.

[6] I find that based on the totality of the application that Binance/Nest have a real and substantial presence in Canada that satisfies the requirements in s.487.014. The other requirements of that section have also been met and the production order will be issued for those reasons.

[7] I am also satisfied that if the criteria in the ITO described above are incorrect there are sufficient procedural fairness safeguards available under s.487.0193 such that Binance/Nest could submit an application to this court or to a judge to vary or revoke the order. The corporate entity would have 30 days to file such an application, for those reasons I have also extended the time requested by the applicant for the production order, from 7 to 30 days. I would review such an application without delay.

Signed: Justice of the Peace K.W. Bouchard