COURT FILE NO.: CRIM MOT (P) 312/22
DATE: 2022 09 07
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER of an order by Duggal J.P. dismissing an application for a production order for records held by textPlus, Inc., sought by Peel Regional Police pursuant to section 487.014 of the Criminal Code.
AND IN THE MATTER of an application by the Attorney General for Ontario for Ontario for an order in the nature of certiorari with mandamus in aid to quash the order of Duggal J.P. and compelling the Provincial Court to exercise its jurisdiction and grant the production order for records held by textPlus, Inc.
REASONS FOR RULING
Tzimas J.
INTRODUCTION
[1] The Attorney General for Ontario applied ex parte for an order in the nature of certiorari with mandamus in aid to quash the order of Duggal J.P. of XXXX, 2022 and compel the Ontario Court of Justice to exercise its jurisdiction to issue a production order for records held by textPlus Inc. In the alternative, the Attorney General asks that the said order be quashed and an order be made to remit the application back to the Ontario Court of Justice for reconsideration by a different justice of the peace or judge, in accordance with the Court’s ruling on the issues raised in the application before this court.
[2] The original production order was sought by Peel Regional Police pursuant to section 487.014 of the Criminal Code. The headquarters for textPlus Inc. are located outside of Canada, in the United States, although the company does business in Canada and provides services to Canadians that include online messaging and telephone services. The records that are the subject of the requested production order originated in Canada. In its communications with the police textPlus, Inc. verified that it controlled and possessed the requested records but there was no indication on where the records were actually located or stored.
[3] The J.P. concluded that he did not have the jurisdiction to grant the requested order. Accordingly, he refused to issue the requested production order.
[4] The Attorney General for Ontario submits that the J. P. committed two jurisdictional errors and erred in law in his refusal to issue the requested order. First, in his interpretation of the statute, he misconstrued the jurisdictional reach of s.487.014 and erred in law when he concluded that he lacked the jurisdiction to make the order. Second, he committed a jurisdictional error and erred in law when he refused to follow the precedent set by Justice Kenkel in Re Application for a Production Order, s.487.014 of the Criminal Code, 2019 ONCJ 775, (the Kenkel Decision).
[5] In these circumstances, the Attorney General submits that it may properly seek certiorari with mandamus to quash the order of the J.P. and to compel the provincial court to exercise its jurisdiction to grant the production order for the records held by textPlus, Inc.
[6] For the reasons that follow, I conclude that it is appropriate that the order of Duggal J.P. dismissing the application for a production order for records held by textPlus, Inc., be quashed and replaced by an order compelling the Provincial Court to exercise its jurisdiction to grant the production order against textPlus, Inc.
[7] In addition, as this application pertains to XXXX, it is appropriate that a sealing order issue in relation to this application, and more particularly: the materials filed, the recording and the transcript of the proceeding, the submissions of counsel before the court and my Reasons for this Ruling. Exception to the sealing order is to be made by granting access to the said materials to Andrew Hotke, Crown Counsel, Darilynn Allison, Crown Counsel, Officer Mark Mechan, to be used for their purposes as required, and to the judicial officer in provincial court who will be tasked with the obligation to execute this order. The sealing order is time-limited to when either charges are laid, or until the investigation is closed. The Crown Attorney for the Region of Peel shall inform this court accordingly.
BACKGROUND
[8] The basic facts that are relevant to my consideration of this application are as follows. On XXXX, 2022, Cst. Mark Mechan of Peel Regional Police submitted two separate applications in the Ontario Court of Justice for a s. 487.014 production order in relation to a XXXX investigation. One application was for “Instagram” records, owned by Meta Platforms, Inc., formerly Facebook, Inc. and the other for records held by textPlus, Inc. The latter is a “downloadable software application for mobile devices” that allows users, including users in Canada to “send and receive text messages, both on a one-to-one basis and in groups, all for free”. The application before me is only in relation to the production order from textPlus, Inc.
[9] In the information to obtain, (“ITO”) filed in support of his application for a production order for certain records from textPlus, Inc., Cst. Mechan described his grounds for believing XXXX. He then outlined his grounds for believing that textPlus, Inc. has control and possession of data records pertaining to a telephone number that will afford evidence of XXXX, that date including basic subscriber information, tracking data, transmission data, and records of the content of text messages. The officer also disclosed his grounds for believing that textPlus, Inc. has control and possession of the records pertaining to a target telephone number, and more particularly explained that he arrived at the conclusion following his contact with a representative of textPlus, Inc.
[10] Cst. Mechan outlined his communications with textPlus, Inc. beginning with his email communication of XXXX, 2022 when he wrote to confirm that the target phone number was a number carried by textPlus, Inc. A representative of textPlus, Inc., “Security and Support” responded and confirmed that the number belonged to that company. The representative also confirmed the address of the company in Los Angeles, the legal process that textPlus would require before it could provide the requested records, and the company’s preferred manner of service of judicial orders.
[11] The J.P. reviewed and dismissed the application for the subject records. In his reasons for the dismissal he concluded that he did not have the jurisdiction to grant the requested order because in his view, it could not be enforced. He relied on the decision of Justice Gorman in the Newfoundland and Labrador Provincial Court decision, In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018 NLPC Police File No. 635181, (the Newfoundland Decision). His Worship did not identify any other concerns. His reasons indicate that he was of the view that the requisite grounds were otherwise established: “it is not in dispute that Text Plus [sic] and Meta Platforms have material evidence relevant to XXXX”.
[12] The J.P. refused to apply the principles laid out by the British Columbia Court of Appeal in British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5 which held that a company headquartered outside of Canada may nevertheless be present in Canada if it carries on business in Canada through its “virtual presence” in a manner that creates a “real and substantial” connection to Canada. In the result, the Court concluded that a “virtual presence” is sufficient to ground jurisdiction for the issuance of a s.487.014 Criminal Code production order.
[13] Soon after the B.C. decision, the Kenkel Decision relied on Brecknell, to conclude that GoDaddy’s virtual presence in Canada was sufficient to meet the requirements of s.487.014 of the Criminal Code. In another decision, also of the Ontario Court of Justice, Feldman J. issued a production order for records held by YMax Communication, a company based in Florida. In a brief, unreported endorsement he wrote: “I am persuaded by the decision in Brecknell that I have jurisdiction on these facts to issue the requested production orders”.
ANALYSIS
[14] The application before this court raises the following questions:
Should textPlus, Inc. be given notice of this application?
Can a production order issue for records held by a company with only a virtual presence in Canada?
Did the J.P. commit a jurisdictional error and err in law when he refused to issue the production order against textPlus Inc. on the basis that the order could not be enforced?
Did the J.P. commit a jurisdictional error and err in law when he refused to follow the precedent set by Justice Kenkel of the Ontario Court of Justice?
Is certiorari with mandamus available where a provincial court refuses to grant a Criminal Code production order and if yes, what must be established for such relief to be granted?
Is there any reason the Court should not grant the requested order?
Is the request for a sealing order under s.487.3 of the Criminal Code appropriate?
I will proceed to review each of these issues.
- Should textPlus, Inc. be given notice of this application?
[15] The Attorney General did not provide notice of this application to either textPlus, Inc., or other possible third parties who may be affected by future orders that may sought as a result of this decision. I see no reason for notice of this application to be given to textPlus, Inc.
[16] Applications for a production order under s. 487.014 of the Criminal Code proceed ex parte and the target enjoys no entitlement to notice: R v. Vice Media Inc., 2018 SCC 53, see paras. 61, 63 and Canadian Broadcasting Corp., v. Manitoba, 2021 SCC 33, at para. 52.
[17] In addition to these legal authorities, I take into account textPlus, Inc.’s expressed willingness to comply with a Canadian production order. That said, even if textPlus, Inc., were to change its mind or have any reservations or concerns over the parameters of the production order, s.487.0193(1) of the Criminal Code provides a mechanism for it to seek to vary or to revoke the production order after its issuance, see Vice Media Inc., at para. 62.
[18] At this stage, the application concerns whether the requested order should be granted. I agree with counsel’s submissions that third parties subject to the proposed court order should not be granted standing in issuance proceedings where the court is deciding whether or not an order should be granted. To do so would contradict the express language of s.487.014 and “encourage the frustration of the investigative process and defeat the proper and orderly administration of criminal justice”, see R v. Tele-Mobile Company (Telus Mobility), 2006 ONCJ 229, at para 24 and Vice Media Inc., at para 61.
- Can a production order issue for records held by a company with only a virtual presence in Canada?
[19] The weight of the jurisprudence supports the conclusion that a Criminal Code production order may issue for records held by a company with headquarters outside of Canada but with a virtual presence in Canada. Two courts of appeal have pronounced favourably on this subject: Brecknell from the B.C. Court of Appeal, and R v. Love, 2022 ABCA 269, from the Alberta Court of Appeal.
[20] In Brecknell, the Court agreed that production orders may only issue for records held by companies that are present in Canada. However, the Court did not limit presence to physical or territorial presence. A company with no physical presence in Canada will nonetheless be considered to be present in Canada in a very real sense by virtue of how it conducts its business, see para. 36-37. Internet-based companies establish a “real and substantial connection” to Canada when they operate virtually in Canada. The Court concluded that a virtual presence in Canada was sufficient to provide personal jurisdiction over a company and that in turn was sufficient to permit the issuing of a production order for records controlled and possessed by a company, even if that company stores its records somewhere other than in Canada.
[21] To arrive at that conclusion, the court focused on the requirement of control under s.487.014 of the Criminal Code. It noted that the subject section did not say anything about where the control or possession had to exist. A substantial part of that reasoning rested on the Court’s recognition that the realities of the digital age and the storage of electronic records by companies who operate in multiple jurisdictions would make the requirement of a domestic “record-keeping presence” impractical, unprincipled and unworkable. The Court noted that records can be transmitted instantly and stored in “cheap warehousing” in various locations around the world. A requirement that records be physically stored in Canada when that may not be how records are stored, would make the availability of a production order depend on “contingent, haphazard, happenstance”. That reality would undermine the implementation of s.487.014 and run the risk of frustrating legitimate investigations, see para. 59.
[22] Brecknell received a resounding endorsement from the Alberta Court of Appeal in Love. Although this decision was released only very recently, on August 15, 2022, and was therefore not before the J.P. when he considered the police’s original application, that Court, at paras.40 and 41, concluded that Brecknell arrived at the correct conclusion and noted that the analysis was “informed by the modern approach to statutory interpretation”. It underscored paragraph 31 of Brecknell which held that persons with possession and control of documents, data or information will have to produce that information wherever it was located and agreed that a company’s virtual presence in Canada provided a real and substantial connection between Canada and the activity in issue. Finally, the Court concluded that the reasoning in Brecknell was consistent with R v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 and the principles of customary international law and international comity. In short, reliance on a company’s virtual presence to issue a production order under s.487.014 of the Criminal Code did not result in any order with an impermissible extraterritorial effect. The company’s virtual presence in Canada brought the company within Canada’s boundaries.
[23] Two judges of the Ontario Court of Justice have followed Brecknell, and issued the requested production orders for companies with a virtual presence in Canada, see the Kenkel Decision and Feldman J. in an unreported endorsement, provided to this court by the counsel.
[24] The only court to disagree with Brecknell was the Newfoundland Decision. In that case, the judge concluded that he did not have the jurisdiction to issue a production order against a company located in the Untied States. He expressly rejected the analysis in Brecknell on the view that the suggested virtual presence resulted in the issuing of an impermissible extraterritorial order, something that was contrary to the principles enunciated inHape, and specifically the recognition that territoriality was the primary basis for determining jurisdiction. He also concluded that production orders would be rendered meaningless because they could never be enforced. In Love, the Alberta Court of Appeal expressly rejected the analysis in the Newfoundland Decision and concluded that s.487.014 “has no impermissible extraterritorial effect when the person subject to a production order has a virtual presence in the local jurisdiction”.
- Did the J.P. commit a jurisdictional error and err in law when he refused to issue the production order against textPlus Inc. on the basis that the order could not be enforced?
[25] The short answer is yes. The J.P. committed jurisdictional error by misconstruing the jurisdictional reach of s.487.014, and he erred in law when he concluded that the provincial court lacked the jurisdiction to issue the requested production order. There are four reasons for my conclusion.
[26] First, the Ontario Court of Appeal has made it clear that the enforceability of an order does not impact jurisdiction. In R v. Greco, (2001) 2001 CanLII 8608 (ON CA), 159 CCC (3d) 146, leave ref’d [2011] S.C.C.A. No. 656, the court concluded that the ability to enforce a Canadian court order is not dispositive of a Canadian Court’s ability to issue the order, where the order would be properly enforceable in Canada, see, paras. 15-17 and 23. The Court also stated that the principle of territoriality did not prevent Canadian courts from issuing orders, enforceable in Canada, that govern conduct outside of Canada, see para. 17.
[27] In Brecknell, the Court expressly turned its mind to enforcement, but relying on its decision in Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265, it concluded that challenges with the enforcement of an order could impact the Court’s exercise of its discretion to issue the order, but it could not deprive the court of its jurisdiction to issue the order.
[28] The J.P.’s concerns over the enforceability of the proposed production order cannot be reconciled with the conclusions in either Greco or Brecknell.
[29] Second, there was nothing before the J.P. to suggest that if he issued the production order, the enforcement provision in s.487.019 of the Criminal Code could not be relied on to enforce it. The jurisdiction to prosecute a person, an organization, or an entity, as contemplated by the language of s.487.0198 of the Criminal Code, does not turn solely on the question of physical location. The law is much more nuanced. In Chowdhury v. H.M.Q., 2014 ONSC 2635, the law recognized different bases for jurisdiction. Although territoriality is the primary jurisdictional basis for criminal jurisdiction, it is not the only one. Jurisdiction can be claimed over a criminal offence where a “real and substantial link exists between the offence and Canada and the assertion of jurisdiction would not offend the principle of international comity”, see para, 11. See also R v. Libman, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, at para.74 and R v. B(O) (1997), 1997 CanLII 949 (ON CA), 116 CCC (3d) 189 (ONCA), at para. 11.
[30] The J.P. did not consider any of these legal principles in his decision. Rather, he relied on the critique of Brecknell in the Newfoundland Decision, where in one throw-away sentence, and also without any analysis of the legal principles governing enforceability, the judge concluded that the approach in Brecknell would result in the issuing of meaningless orders because they could never be enforced. By implication, a court ought not to have the jurisdiction to issue an order if such an order were unenforceable.
[31] Third, the J.P.’s reasons imply an that s.487.019 of the Criminal Code would be the only tool to effect compliance with a production order. But that ignores the observation in Equustek that a company doing business in Canada can be expected to abide by valid court orders. Moreover, consequences of non-compliance do not have to be limited to Criminal Code enforcement tools. There may be any number of other remedies or penalties to pursue to respond to an entity’s non-compliance with a court order, including for example a contempt order, see Equustek at para. 98.
[32] Finally, to the extent that enforceability could be a discretionary consideration in the issuing of an order, as suggested in Brecknell, at paras. 51-52, the materials before the J.P. did not provide any basis to believe that textPlus, Inc., would not comply with a production order. The opposite was in fact true. textPlus, Inc., indicated that it had every intention to assist with the requested production, but it actually required a “production order signed by a judge or magistrate”. The representative from textPlus, Inc., outlined exactly what would be required and also gave directions on where to send the order once it was obtained. The J.P.’s ostensible concern that the court’s production order could not be enforced, or would therefore be rendered meaningless, simply had no foundation to it.
- Did the J.P. commit a jurisdictional error and err in law when he refused to follow the precedent set by Justice Kenkel of the Ontario Court of Justice?
[33] Yes, the J.P. committed a jurisdictional error and erred in law when he refused to follow the precedent set by Justice Kenkel of the Ontario Court of Justice, which was directly on point, and of which he was aware. In doing so, the J.P. acted contrary to the governing principles of horizontal stare decisis.
[34] In R v. Sullivan, 2022 SCC 19, at paras. 73-86 the Supreme Court of Canada reviewed the governing principles of horizontal stare decisis to conclude that trial level courts of coordinate jurisdiction could only depart from decisions of the same court if one or more of the three circumstances set out by Wilson J. in Spruce Mills were engaged. For ease of reference, the SCC outlined them at para. 75 and provided additional commentary:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[35] Although Sullivan arose out of a decision of a Superior Court of Justice, there was nothing in the decision to suggest that the principles articulated by the Court should not apply to provincial courts of justice, see R v. Mamula, 2022 MBPC 34, at para 11 and R v. Dunford, 2022 ONSC 4327, at para. 60. If anything, the justification for those principles are equally applicable to superior courts and provincial courts and address concerns about the proper administration of justice. Moreover, there can be no dispute that judges of the Ontario Court of Justice and a Justice of the Peace of the Ontario Court of Justice have concurrent jurisdiction, see R v. Bui, 2014 ONSC 8.
[36] Further support for these principles followed in R v. Kirkpatrick, 2022 SCC 33, also a decision of the Supreme Court of Canada, released after Sullivan. The minority reasons explained that stare decisis promoted three valuable objectives for Canada’s judicial system: 1. Legal certainty and stability; 2. The rule of law; and 3. The legitimate and efficient exercise of judicial authority, see paras. 183-189. The Court explained that failure to adhere to stare decisis creates unpredictability in the law and can preclude the ability of persons within society to confidently structure their affairs and plans. It could also lead to different law being applied to similar cases, based on personal preferences of the presiding justice and resulting in a confounding of the rule of law. Finally, the failure to observe the principles of stare decisis may result in the inefficient use of court resources, result in the re-litigation of issues already decided and undermine the legitimacy of the courts by producing inconsistent outcomes, paras. 187-188.
[37] In light of the foregoing, the ability to distinguish the present case from the Kenkel Decision along one or more of the three Spruce Mills requirements, the J.P. was obligated to follow the Kenkel decision. He did neither and therefore erred in law in his preference for the Newfoundland Decision. To the extent that the error resulted in an error in the interpretation of the court’s jurisdiction, he also committed a jurisdictional error. Given his statement that the Kenkel Decision was “not binding on this Court”, he essentially preferred the Newfoundland Decision, making the kind of personal choice against which the SCC in Kirkpatrick warned. In short, the J.P. gave himself a power that he did not have.
- Is certiorari with mandamus available where a provincial court refuses to grant a Criminal Code production order and if yes, what must be established for such relief to be granted?
[38] Crown Counsel raised this issue for the court’s consideration and argued that certiorari with mandamus is available as a matter of law where a provincial court has refused to grant a Criminal Code production order. I agree with this position for the following reasons.
[39] To begin with, decisions from Alberta and B.C. have demonstrated that a refusal by a provincial court to grant a Criminal Code production order is an order in respect of which the Attorney General for the province may properly seek certiorari and mandamus, see Alberta (Attorney General) v. Provincial Court of Alberta, 2015 ABQB 728, Alberta (Attorney General) v. Malin, 2016 ABCA 396 and Brecknell. Although counsel could not point to an Ontario authority where the issue concerned a production order, they drew the court’s attention to R v. Brown, 2019 ONSC 5032 which involved a search warrant and where the Crown successfully applied ex parte for certiorari with mandamus to compel a justice to review an application for a search warrant on the merits.
[40] The possibility of certiorari with mandamus raises the question of when and on what basis such relief may be granted requires some discussion. In criminal trial proceedings, the law stipulates that certiorari relief is available to the parties to the proceeding only on the basis of jurisdictional error by the provincial court: Bessette v. British Columbia (Attorney General), 2019 SCC 31, at para. 23, R v. Awashish, 2018 SCC 45, at para. 26. Jurisdictional error can be established in two ways: 1. where the court has failed to observe a mandatory provision of a statute; and 2. where it has acted in breach of the principles of natural justice. The first category concerns instances where a provincial court errs in its interpretation of a statute that is jurisdictional in nature: see R v. Russell, 2001 SCC 53, at paras. 22, 30, Bessette, at para. 29 and R v. Vasarhelyi, 2011 ONCA 397 at para. 53.
[41] Outside of criminal trial proceedings, certiorari relief can be sought in a wider range of circumstances. Third parties to a criminal trial proceeding affected by a provincial court ruling may seek certiorari on the basis of an error of law on the face of the record: see Awashish, at para. 12. With production orders or search warrants, third parties who are subject to an order may seek certiorari relief on the basis that the Garofoli standard of review has not been met. Such an inquiry considers the following: “having regard to the record before the issuing judge, as augmented by evidence before the reviewing judge, no judge acting reasonably could have concluded that the order should be made”, see R v. Vice Media Canada Inc., 2017 ONCA 231 at paras, 20, 24, aff’d 2018 SCC 53 and R v. A.B. 2014 NLCA 8, at pars. 12-13.
[42] For a certiorari application in relation to a refusal by a provincial court to grant an application for an order relating to a Criminal Code investigation tool, the law is not clearly settled: see Comtois c. R., 2017 QCCA 1376, at para. 16. Crown counsel offered this court the following examples for consideration:
• R v. Atwood, 2021 NSSC 106: the court cited Vice Media Inc. and applied the Garofoli standard to a provincial court’s refusal to issue a sealing order and a non-disclosure order to accompany a production order for records held by Facebook, Inc., see paras. 24-25.
• Brown: certiorari relief could be granted if the provincial court had erred in law, see para. 7.
• Provincial Court of Alberta: certiorari relief could be granted if the provincial court had incorrectly interpreted and applied relevant provisions of the Criminal Code: para. 43.
• Re:section 487.02 of the Criminal Code: The Newfoundland and Labrador Court of Appeal allowed an appeal from a dismissed application for certiorari and mandamus after it found the provincial court had erred in finding it had no jurisdiction to issue an assistance order. The court did not specify if the error was jurisdictional in nature or an error of law, or both, see paras. 4, 62 and 66.
• Brecknell: the certiorari court considered both whether the provincial court had committed jurisdictional error or erred in law when it dismissed the AG for British Columbia’s application for certiorari. The Court of Appeal for B.C. allowed the appeal from the dismissal of the certiorari application on the basis of error of law.
[43] Having mapped out the circumstances where courts have granted certiorari relief, Crown counsel also submitted that it would be appropriate for the court to agree that certiorari relief in the context of a refused production order by a provincial court must at least be available for clear errors of law, in addition to the jurisdiction error, as the Court of Appeal in Brecknell appears to have accepted. Counsel identified four reasons in support of its submission on this issue.
[44] First, the Crown submitted that there is no right of appeal of a refusal to grant a production order. If certiorari review is not permitted for legal error, there is no avenue to correct the alleged error. Although a refusal may not be final or conclusive since reapplication is permitted, an erroneous refusal ruling is final. For example, a denial of jurisdiction, if that is held to be a legal error, will result in a continuous denial of an order, however many times a request might be submitted. Until that error is clarified, the error would be repeated.
[45] Second, unlike trials underway, where a certiorari relief could fragment the trial and cause undue disruption, no such concern would exist with a production order. Indeed, the factual background underlying the police’s request in this case illustrates the distinction.
[46] Third, production orders are invariably ex parte and without submission from counsel for the Attorney General. Certiorari review for legal error would provide the A.G. the opportunity to challenge an erroneous ruling.
[47] Fourth, any concern that certiorari review for errors of law in the production order context would be inconsistent with the jurisprudence that insists on the limited availability of certiorari relief is answered by the reality that certiorari remedies are discretionary and may be denied where even with an error of law it is in the interests of justice to do so, see R v. M.N., 2022 ONCA 358 at para. 541.
[48] Having regard for these considerations, in the context of this case, where I have found both jurisdictional error and error of law, even on a narrow reading of the law, there is a legal foundation to support the requested certiorari to address the erroneous refusal to issue the production order against textPlus, Inc.
- Is there any reason the Court should not grant the requested order?
[49] Recognizing that an order for certiorari with mandamus is discretionary, it is appropriate to ask whether there may be a compelling reason to decline the relief being sought. On the record before me, I do not have any reason to refuse the Crown’s requested relief. If the J.P. had expressed concerns over the merits of the application, it would have been appropriate to quash his decision and refer the matter back to the Ontario Court of Justice for reconsideration by another justice of the peace of judge. However, I take the J,P,’s comment, “it is not in dispute that TextPlus [sic] and Meta Platforms have material evidence relevant to XXXX” to mean that His Worship concluded that apart from the issue of jurisdiction, the requisite grounds for the issuing of the production order were established. There is therefore no need for any reconsideration. The more appropriate order is to quash the J.P.’s decision and to compel the Ontario Court of Justice to exercise its jurisdiction to issue the requested production order.
[50] Insofar as the existence of the Mutual Legal Assistance Treaty (MLAT), between Canada and the United States could provide an alternate means for gathering the evidence that is controlled or possessed by a company with a physical presence in a foreign jurisdiction, and therefore put into question the exercise of my discretion to grant the relief being sought by the Crown, I make the following observations. First, this option may have been something to consider if jurisdiction were not in issue. But the problem before me concerned the jurisdictional reach of s. 487.014 of the Criminal Code. The clarification or correction of that legal issue could not be addressed with reference to any pathway that may be offered by MLAT. Moreover, if a company is found to have a presence in Canada, the existence of MLAT would be irrelevant.
[51] In the same vein and on the submission before the court, it stands to reason that MLAT could be an appropriate pathway in those instances where a target company did not have any sort of presence in Canada or in instances where the articles at issue were located physically in another territory. Given that the submission on this subject were limited, I do not want to go too far in my analysis or specific findings. But it does strike me that for the reasons already discussed, where, as acknowledged in both Brecknell and Love, the records in question may be stored anywhere in the world, it is far from clear on how MLAT would facilitate the production being sought by the police and how that could proceed on an expedited basis to advance the investigation currently underway.
[52] As yet a further observation, there was actually no evidence before the court on the location of the records. What is known is that the records originated in Canada. This is one more reason not to get to carried away by the suggestion of MLAT as an alternative to the certiorari relief being sought. I also cannot ignore every indication at this point that there is a willing party at the other end of the anticipated production who expressly requested the court order to meet its obligations.
[53] Finally, in addition to these considerations, MLAT is permissive in nature. There is no suggestion that the law enforcement authorities must go through MLAT, to obtain the requested production order, see R v. Dorsay, 2006 BCCA 117 at paras. 63-64. Having regard for the fact that MLATs can cause delays, together with the other concerns, I see no reason to prefer that avenue over the requested relief of certiorari and mandamus.
- Is the request for a sealing order appropriate?
[54] At the conclusion of the application, Crown counsel requested a sealing order in relation to the application before me, and more specifically the materials filed, the recording and the transcript of the proceeding, the submissions of counsel before the court and my reasons for the ruling, pursuant to s.487.3 of the Criminal Code. An exception to the sealing order is to be made by granting access to the said materials to Andrew Hotke, Crown Counsel, Darilynn Allison, Crown Counsel, Officer Mark Mechan, to be used for their purposes as required, and to the judicial officer in provincial court who will be tasked with the obligation of executing this order.
[55] Given the status of the investigation underway and the fact that the sealing-order will be time-limited to when either charges are laid or until the investigation is closed, I have no difficulty with the request.
CONCLUSION
[56] In light of the foregoing, the application for an order in the nature of certiorari with mandamus is granted. The order of Duggal J.P. of XXXX, 2022, is quashed and order is made compelling the Ontario Court of Justice to exercise its jurisdiction and issue the production order as requested by Cst. Mechan for the records held by textPlus Inc. A sealing order is also to issue in accordance with the terms requested and outlined at paragraph 54 of these reasons.
Tzimas J.
Released: September 7, 2022