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[9] In this case, Constable Dobbin is seeking an order requiring a corporation in the United States of America to produce a document. An order made under section 487.014 must require the person to produce the document to the officer “named in the order within the time, at the place and in the form specified in the order” (see section 487.0192(1)). As will be seen, it is an offence in Canada to fail to comply with such an order.
[12] Can a Production Order, despite this wording, be issued for the purpose of ordering production of documents by someone who is outside of Canada?
[13] Section 487.014 is silent as regards extra-territorial effect. In R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, the Supreme Court considered the question of the constitutional authority of Parliament to make laws with extraterritorial effect. It did so in the context of the application of the Charter to the conduct of Canadian police officers in a foreign country.
[15] The Supreme Court indicated in Hape that the “primary basis for jurisdiction is territoriality” (at paragraph 59). Thus, the Supreme Court noted that the “most contentious claims for jurisdiction are those involving extraterritorial enforcement of a state's laws, even where they are being enforced only against the state's own nationals, but in another country” (at paragraph 64). The Court concluded that based upon the “jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court's jurisprudence, Canadian law can be enforced in another country only with the consent of the host state” (the Supreme Court’s emphasis, at paragraph 68). Finally, and of importance here, the Court indicated in Hape that the “power to invade the private sphere of persons and property, and seize personal items and information, is paradigmatic of state sovereignty. These actions can be authorized only by the territorial state...As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches and seizures conducted in another state's territory” (at paragraph 87).
[16] The issue raised by this application was recently considered by the British Columbia Court of Appeal in British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5 (CanLII). In Brecknell, the police, as here, applied for a Production Order pursuant to section 487.014(1) of the Criminal Code. They sought records relating to a posting on Craigslist made in British Columbia. The alleged offence occurred in British Columbia. However, Craigslist maintained its main office in California. It did not have an office in Canada, but provided services to Canadians.
[20] The British Columbia Court of Appeal noted that there “is nothing in the language of the section to support the view that Parliament intended, expressly or by necessary implication, to confer on the courts a jurisdiction to make an order requiring the gathering of evidence in a foreign country by a third party located outside the country” (at paragraph 21). The Court of Appeal also noted that “it is evident that a production order may issue only against a person in Canada. The question is, therefore, whether Craigslist is to be treated as a person in Canada for the purpose of the section” (at paragraph 34).
[21] The Court of Appeal suggested that in the Internet era “it is formalistic and artificial to draw a distinction between physical and virtual presence. Corporate persons...can exist in more than one place at the same time. With respect, I do not think anything turns on whether the corporate person in the jurisdiction has a physical or only a virtual presence” (at paragraph 40).
[22] The Court of Appeal indicated that a production “does not directly involve entry into a place by state agents who are authorized to search and seize property. The location of the documents is irrelevant to the essence of the order.” Thus, the Court of Appeal concluded that “there is jurisdiction to issue the production order because doing so is not an impermissible extraterritorial exercise of enforcement jurisdiction” (at paragraphs 46 and 54).
[23] As the British Columbia Court of Appeal correctly noted in Brecknell, “it is evident that a production order may issue only against a person in Canada” and there “is nothing in the language of [section 487.014] to support the view that Parliament intended, expressly or by necessary implication, to confer on the courts a jurisdiction to make an order requiring the gathering of evidence in a foreign country by a third party located outside the country.” However, despite this conclusion and despite the limits on extraterritorial effect set out in Hape, the Court of Appeal concluded that section 487.014 has extraterritorial effect. What led the Court of Appeal to this conclusion?
[24] Parliament could have explicitly provided section 487.014 of our Criminal Code with extraterritorial effect if it wished to do so. Having done so would, of course, have constituted a potential interference with the sovereignty of other countries and thus, perhaps it is not surprising that Parliament declined to do so.
[25] The British Columbia Court of Appeal noted that the “reality is that criminal activity involving such matters as human trafficking, child pornography, money laundering, commercial fraud and international terrorism conducted by means of electronic communication can be insulated from investigation if a production order is viewed as being implemented where the data is stored and its issuance is, therefore, impermissibly extraterritorial. Such a result is an open invitation to criminals to hide their activity targeting this jurisdiction by ensuring that information about their communications is stored in another” (at paragraph 57). At the heart of the Court of Appeal’s decision is its conclusion that denying extraterritorial effect to section 487.014 will result in “frustration of investigation into serious criminal conduct” (at paragraph 58).
[26] I do not disagree with the Court of Appeal’s sentiments. International crime causes difficulties for investigators, though international agreements help to remedy these problems (see the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985). The difficulty with the Court of Appeal’s reasoning, however, is that it put its desired result ahead of the proper interpretation of the provision. The Court of Appeal saw merit in section 487.014 having extraterritorial effect and then interpreted it accordingly. The Court of Appeal ignored Parliament’s decision not to provide the provision with extraterritorial effect.
[27] This approach to extraterritorial effect ignores the consistent approach by the Supreme Court of Canada in which it has denied extraterritorial effect to Canadian legislation in the absence of Parliament explicitly providing the legislation with such an effect. Parliament has not done so in relation to section 487.014 of our Criminal Code. In R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597, the Supreme Court noted that sovereign equality "generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state's territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state" (at paragraph 26). In Hape, the Supreme Court pointed out, at paragraph 105, that Parliament does not have “the power to authorize the enforcement of Canada's laws over matters in the exclusive territorial jurisdiction of another state. Canada can no more dictate what procedures are followed in a criminal investigation abroad than it can impose a taxation scheme in another state's territory. Criminal investigations implicate enforcement jurisdiction, which, pursuant to the principles of international law discussed above, cannot be exercised in another country absent the consent of the foreign state or the application of another rule of international law under which it can so be exercised.” Thus, Parliament cannot compel a person in a foreign country to comply with a Production Order issued in Canada and it has not attempted to do so.
[28] Section 487.0198 of our Criminal Code indicates that a person who contravenes a section 487.014 order is guilty of a criminal offence. This provision cannot be enforced extraterritorially. It would not be enforceable in this case if I issued the Production Order requested because any attempt to do so would constitute an extraterritorial application of Canadian domestic law. As noted by the Supreme Court of Canada in Terry, our criminal law applies only within Canada (at paragraph 17):
The general rule that a state's criminal law applies only within its territory is particularly true of the legal procedures enacted to enforce it; the exercise of an enforcement jurisdiction is "inherently territorial": D. P. O'Connell, International Law (2nd ed. 1970), vol. 2, at p. 603. As La Forest J. wrote in R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 15, "Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories".
[29] Thus, Brecknell creates a situation in which a Canadian court can issue an order, but without any authority to enforce it. The order becomes meaningless.
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