R. v. Christopher Goulbourne, 2011 ONSC 774 (CanLII)
[30] I agree with the submissions of the Applicant that the Production Orders once issued, continue to compel the third party (TELUS) to release all information sought even if the period for compliance as set out on the face of the Order has expired. I make this finding for the following reasons.
[31] Section 487.012(1) to 487.012(8) the provision relevant to this application makes one reference to a timeframe. This reference is set out in Section 487.012(2). It states: “The production order scheme (Section 487.011 to 487.017) makes only two references to time mechanisms.
[32] I find this section is intended to provide the third party from whom information is sought a specific timeframe in which to comply with the order in a prompt, efficient and reasonable manner. The wording in this section is not intended to apply to the expiration date of the order.
[34] Although Section 487.015(1) makes reference to the wording “before the order expires” that term must be understood in the context of the exemption provision in which it resides. It does not suggest that the order “expires” in the sense that the obligation to produce ceases when the end of the set timeframe passes. Rather the language is used to ensure that if a third party against whom a production order is directed wishes to seek an exemption to the order, they must do so within the same timeframe as set out which compels production of the information sought.
[35] The timeframes prescribing the specific periods in which compliance by a third party is ordered and the specific period in which a third party may seek exemption from the order are not intended to relieve the third party from compliance with the order should the timeframe pass.
[36] This interpretation is supported by the legislative debates pertaining to production orders. The Parliamentary Secretary to the Attorney General made this observation about the two temporal components of the scheme:
“The Production Orders will serve a number of nagging issues for investigators including extra territorial searches and timing issues….
….The new Production Orders will be time sensitive so that the third party served with the order will either have to produce the information within the time specified in the order or report back to the court within the specified time as to why he or she cannot comply. This solves the problem of the inherent nature of informal arrangements which is that they are informal and they often lack specific mechanisms such as timing mechanisms.”
[37] Further I find the time periods set out in production orders are not dissimilar to other court orders where a person/party is required to do something by a particular date: pay a fine, pay child support, deliver up documents in civil proceedings, and so on. To conclude that a judicially authorized court order is expired because compliance with the order is not made out within the timeframe set is both illogical and absurd.
[39] I agree with the Applicant’s submission that because renewal of a Production Order can be brought by way of an ex parte application, Section 487.012(5) is intended to address those situations where renewal is requested because the police have failed to serve the production order on the third party in advance of the time set for production.
[43] However, the July 8, 2010 Production Orders do not authorize the state to suspend or interfere with any privacy interests. The Respondent’s Section 8 Charter privacy rights are not engaged because the July 8, 2010 Production Orders compel a third party - TELUS and not the Respondent to provide the information sought. That information is to be provided by TELUS within the specific timeframe on the face of the order. The order for production is not lifted or lapsed because TELUS through inadvertence or otherwise failed to provide the information ordered within the timeframe specified.
[44] In summary, I find the timeframes as set out in the July 8, 2010 Production Orders relate only to the period of time in which TELUS is to comply with the Orders and not to any dates on which the Orders expire. Although the period of time for compliance has passed, the July 8, 2010 Production Orders continue to constitute lawful authority for TELUS to provide the documents and data that fell within the demands of those Orders. Contrary to the submissions of the Respondent, renewal of the Production Orders or new applications for those Orders are not required for TELUS to provide the information originally sought in July 2010.
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