Canadian Case Law Trending To Compel Production Of Data By Foreign Corporations To Canadian Law Enforcement

• Jurisdiction: United States,Federal
• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure
• Author: Canadian Appeals Monitor, Gabriel Querry, Natalie Kolos and Hannah Cinel
• Published date: 18 May 2023

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.

Factual Background

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.¹ 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).²

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,³ the Provincial Court could issue a general production order to obtain data wherever the data might be stored (even if not in Canada).⁴

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").⁵ In Brecknell, the Court of Appeal held that a production order could compel Craigslist'an American company with no physical presence in Canada⁶'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.⁷ The Court held, "in...