Lien vers la décision
[1] The issue on this appeal is whether jurisdiction lies under s. 487.014(1) of the Criminal Code, R.S.C. 1985, c. C‑46, to issue a production order to a company, Craigslist Inc. (“Craigslist”), with only a virtual, but not a physical, presence in British Columbia, requiring it to produce documents located outside Canada to a peace officer in British Columbia.
[21] Running through each of the decisions refusing to issue the production order is the concern that to do so would involve the court exercising extraterritorial jurisdiction not contemplated by a proper interpretation of s. 487.014(1). On this approach, 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. It is convenient to reproduce the section again:
487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.
[22] It is evident that the section is silent on any potential extraterritorial reach of orders made pursuant to it. Having said that, Mr. Klein, appearing as amicus curiae to advance arguments in support of the judgment below, acknowledged that the section is effective to compel production of documents located outside Canada, provided the person who is in possession or control of them is within Canada. The chambers judge appears to have taken the same view in para. 43 of her reasons.
[23] The need to interpret the section in light of restrictions placed on extraterritorial effects is uncontroversial. The fundamental principles were canvassed in R. v. Hape, 2007 SCC 26 (CanLII). There, Justice LeBel identified a number of settled but important principles. First, customary international law, which has been adopted domestically, limits the actions a state may legitimately take outside its borders. Customary international law is based on respect for the sovereignty and equality of foreign states. Sovereign equality commands non‑intervention and respect for the territorial sovereignty of foreign states. Nonetheless, Parliament may legislate “extraterritorially” in violation of those principles provided it does so expressly: see paras. 35‑46.
[24] Second, international comity serves as an interpretive principle, suggesting laws should not be interpreted in a way that would infringe on the sovereignty of another state: see paras. 47‑52. Thirdly, LeBel J. reconfirmed the principle of statutory interpretation by which legislation is presumed to conform to international law, although effect must be given to a contrary intention: see paras. 53‑56.
[26] The core issues on this appeal are whether, on the facts of the case, the production order should properly be viewed as having an extraterritorial effect or as being impermissibly extraterritorial in its effect. To put the matter one way, even though Canada has jurisdiction over the alleged crime and, arguably, the Court has in personam jurisdiction over Craigslist, does the Court have jurisdiction to order Craigslist, headquartered in California, to gather evidence that can be seen to be located outside the country? Alternatively, the issue may be properly characterized as whether it is an extraterritorial exercise of jurisdiction to issue a production order compelling a person in Canada to produce documents in Canada that are in that person’s possession or control if they are stored outside the country and must be accessed in a foreign country. In large measure the answer to the issue before the Court turns on properly characterizing where the order takes effect and whether it is properly regarded as directed against a person in Canada for the purpose of the section.
[28] Determining whether the section has an impermissible extraterritorial effect is an exercise in statutory interpretation. A number of issues arise. They include: (a) In what sense must a “person” be within the jurisdiction for the section to apply? Must that person be in the jurisdiction physically or in a record keeping or custodial capacity? (b) Does the section contemplate that personal jurisdiction is sufficient for an order to be effective? (c) Where does a production order take effect? Is it effective in relation to a person, and operates domestically if the person is in the jurisdiction regardless of the location of the documents? (d) Does a production order take effect where the documents are produced and disclosed or where they are located and stored?
[29] The first step in the analysis is to recognize that a production order is directed to a person and requires that person to produce documents in their possession or control. Pursuant to s. 487.0192(1), the documents must be produced to an officer, presumably within the jurisdiction, though (3) of that section allows the production to be made electronically.
[34] At a minimum, it is clear that a production order is effective against a person because it commands that person to obtain and produce documents. Applying appropriate presumptions of statutory interpretation, 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.
[35] The Criminal Code does not define a “person”. Clearly a person encompasses both a natural person and a legal person such as a corporation. Corporations often can be located in specific geographical territories by reference to such matters as place of incorporation, registration to conduct business (including the provision of a place for service), the location of head offices, or other places of business. Corporate persons can exist simultaneously in multiple jurisdictions. They can be simultaneously both here and there, to borrow a phrase. Historically and typically, corporations generally needed to be physically present in a particular territory, by way of business premises or employees, if they were to conduct business in that territory. In the Internet age that is no longer the case. Corporate persons can conduct business in multiple jurisdictions without the need for a physical presence in the jurisdiction. That is the situation with Craigslist.
[36] The nature of its business allows Craigslist to conduct business in British Columbia without establishing any physical presence. Nonetheless, it seems to me that Craigslist is present in British Columbia, in a very real sense, by virtue of the way in which it conducts its business. It supplies services to British Columbians focusing on specific locations, putting buyers and sellers in those locations together. It derives revenue from British Columbians. As the chambers judge recognized, it is virtually present in British Columbia, even if it is not physically present.
[37] Accordingly, the question is whether its virtual presence in British Columbia is sufficient to provide a jurisdictional foundation for the issuance of a production order without having impermissible extraterritorial consequences. There is no question that there is a real and substantial connection between Craigslist and British Columbia arising from Craigslist’s virtual presence in British Columbia to conduct business. That real and substantial connection is sufficient to provide personal jurisdiction over Craigslist. The question is whether that is a sufficient jurisdictional basis to issue the order. The chambers judge concluded that it was not because, among other reasons, Craigslist did not have a custodial or record-keeping presence in the province. That presence, she concluded, existed outside the country.
[38] It is by no means clear to me what it means to say that a person has a custodial or record-keeping presence in the jurisdiction, particularly in a digital age where information can be instantly transmitted by a click of a mouse. Certainly, a custodial presence is not synonymous with a physical presence. A company may have offices or employees in the jurisdiction whose function is entirely unrelated to record keeping or exercising custody over documents. Moreover, the function of record keeping and exercising custodial authority are not necessarily the same thing and may be functions exercised in different locations. The authority to require the retrieval of documents may reside in one location, the act of retrieving them may be possible in various locations, and the documents may be stored yet somewhere else. Finally, the location of documents may bear little or no relation to the business activity that generates them. As Mr. Macklin observed, cheap warehousing of data may lead to storage outside the country. It is not obvious that Parliament intended jurisdiction in relation to the employment of this investigative tool to depend on such contingent, haphazard, happenstance resulting from the variable internal structures of businesses. Having said this, I recognize that in this case it is part of the reality that Craigslist has offices in California to which an order for documents needs to be transmitted and from which it can be implemented. The question is whether this fact is decisive to deprive a British Columbian court from issuing a production order in the first place.
[39] I think not. I take a somewhat different view of the scope of the section from that of the judge. In the first instance, the section, properly interpreted, stipulates only that the person subject to the order must be a person in the jurisdiction. In my view, Craigslist is such a person. Second, the person must be a person who has possession or control of a document. The section says nothing expressly about where that possession or control exists. Indeed, it may not even be sensible to pose the question in terms of the location of control. A person either does or does not have possession of a document. The question is one of control, not where the control is exercised. In this case, Craigslist has possession or control of the relevant records and the provision requires nothing further. In other words, there is nothing in the section that requires the person in the jurisdiction to be a custodian of the documents in the jurisdiction. In my view, it is sufficient that the person is present within the jurisdiction. I do not think that there is anything extraterritorial in such an interpretation. To conclude that Craigslist is a person within the jurisdiction who has possession or control of documents does not give the section an impermissibly extraterritorial interpretation.
[40] In the second place, in the Internet era it is formalistic and artificial to draw a distinction between physical and virtual presence. Corporate persons, as I have noted, 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. To draw on and rely on such a distinction would defeat the purpose of the legislation and ignore the realities of modern day electronic commerce. Moreover, the current facts illustrate the doubtful relevance of the distinction. Craigslist’s virtual presence is closely connected to the circumstances of the alleged offence, because at least some elements of the alleged offence were facilitated by relying on the services Craigslist provides virtually. In terms of the alleged offence, any physical presence Craigslist may have in the jurisdiction is beside the point. A corporate entity’s physical presence may have nothing to do with the circumstances of an offence. In my view, it would be curious if the presence of a retail outlet which is totally unrelated to the acquisition of information sought by a production order would ground a jurisdiction that did not otherwise exist.
[41] There remain, however, a number of other arguments that may be advanced to support the proposition that the issuance of the production order in this context has impermissible extraterritorial effects.
[42] The first is that the absence of a physical presence or a registered records office eliminates the possibility of serving the order within the jurisdiction. In my view, service and the extraterritorial effect of the order are different questions. It may well be that an order which is properly viewed as intraterritorial in its effect has to be served ex juris. Service has to do with the provision of notice, not with the effect of the order. In short, I do not think the fact that the order needs to be served outside the jurisdiction demonstrates that such an order is extraterritorial in its effect. One has to analyze the effect of the order directly to reach that conclusion, rather than the mode of service.
[43] The next issue arises as a result of the similarity between a production order and a search warrant. It is evident that a Canadian court could not issue a warrant authorizing government officials to enter and search Craigslist’s offices in California and seize property located there. Typically, but not always, a search warrant involves authorizing a named person, a state agent, to enter a specified place to search for and seize specified property. Prior judicial authorization is required to protect a target’s reasonable expectation of privacy. The focus of the search involves acting in a specified place and hence an overseas search necessarily would involve violating the sovereignty of another country because it involves the extraterritorial exercise of enforcement jurisdiction.
[44] Should a production order be regarded as just a form of search warrant so that their extraterritorial characteristics are similar? Since R. v. Spencer, 2014 SCC 43 (CanLII), it has been clear that the release of user information such as Craigslist’s posting records requires prior judicial authorization because it is a form of search leading to the disclosure of information in which a person may have a reasonable expectation of privacy. The argument assimilating production orders and search warrants is that a production order of the type sought here is in the nature of a search executed outside the country in which a foreign private entity is, in substance, conscripted as a state agent to execute the search. The search occurs where the records are located because that is where the private information is found. It is conducted by a party who has no physical presence in Canada and who cannot act in or from Canada to retrieve the documents. Indeed, the presence of the person in Canada does not avoid the extraterritorial effect of the production order, since it is implemented where the documents are located. Necessarily the order engages enforcement jurisdiction. As such it involves enforcement outside Canada in a manner that invades the territorial sovereignty of another country, contrary to customary rules of international law which form part of the law of Canada. In the absence of a clear indication that Parliament intended the section to apply extraterritorially, which is not the case here, the section authorizing the issuance of production orders cannot be interpreted to confer jurisdiction to issue one on the facts of this case. The principles underlying this argument have been helpfully articulated by Robert Currie in “Cross-Border Evidence Gathering in Transnational Criminal Investigation: Is the Microsoft Ireland Case the ‘Next Frontier’?” (2016) 54 Can YB Int’l Law 63.
[52] In my view, problems of enforceability may often need to be considered when courts make discretionary decisions, since that issue is relevant to the exercise of its discretion. Those difficulties do not, however, deprive the court of jurisdiction to make the order.
[53] Finally, I do not accept that proposition that the existence of alternative investigative tools available through the MLAT demonstrates that the court lacks jurisdiction to make a production order. Certainly, there are many aspects of investigation into criminal activity that have international elements and frequently investigation may be possible only through international cooperation if territorial sovereignty is to be respected. The MLAT thus reflects the views of sovereign states about the legitimate scope of criminal investigation with extraterritorial elements. It may also be that MLAT would, on these facts, provide an alternative means of gathering evidence. But even that conclusion is by no means certain if a production order is treated as a search where the documents are located, because the record does not disclose where the information is stored. On the Court of Appeals’ approach to the Microsoft Irelandissue, it may be that the California court would not have jurisdiction to make the order if Craigslist stored the information outside the United States.
[54] The more important point, however, is that the existence of the MLAT does not answer the question of whether the court has the jurisdiction to issue the production order, even if its terms give some indication of what states might regard as extraterritorial investigation. Since I have concluded that there is jurisdiction to issue the production order because doing so is not an impermissible extraterritorial exercise of enforcement jurisdiction, I need say no more about the MLAT.
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