R. v. Wahabi et al, 2021 MBQB 266
[41] The law regarding search warrants, and their issuance and review is well established and it applies with equal force to production orders. Accordingly, the reasoning and tests set out in Garofoli and Canadian Broadcasting Corp. v. Manitoba (Attorney General) et al., 2009 MBCA 122, at paragraph 31, have obvious relevance for many of the issues in this case.
[42] In Canadian Broadcasting Corporation, the Manitoba Court of Appeal noted as follows (at paragraph 31):
Thus, it would appear that judges have generally accepted that the law regarding search warrants should also apply to production orders. All parties in this case, including the reviewing judge, proceeded on that assumption. I agree with that assumption.
[43] In commenting upon the generally deferential nature of a Garofoli review, the Manitoba Court of Appeal noted the following in R. v. Pilbeam, 2018 MBCA 128 (at paragraphs 6 to 8):
[6] The deferential nature of a Garofoli review is well known (see R v Deol, 2006 MBCA 39 at paras 6-8). There is a presumption of validity as to a search warrant and the sworn information supporting it (see R v Collins (1989), 1989 CanLII 264 (ON CA), 48 CCC (3d) 343 at 356 (Ont CA)). The accused bears the burden of demonstrating, on balance, that the ITO is insufficient to establish reasonable grounds (see R v Campbell, 2011 SCC 32 at para 14).
[7] Warrant review “involves a contextual analysis, not a piecemeal approach to individual items of evidence shorn of their context” (R v Beauchamp, 2015 ONCA 260 at para 85). Like a painting or photograph, an ITO’s meaning can only be properly understood if it is considered as a whole. Reviewing judges should be skeptical of attempts to deconstruct an ITO by looking at its aspects in isolation. Such an approach is an error in principle. Rather, the reviewing judge is to assess the facts and the reasonable inferences available by taking a “practical, non-technical, and common-sense” assessment of the totality of the circumstances (R v Whitaker, 2008 BCCA 174 at para 42, leave to appeal to SCC refused, 32657 (30 October 2008); see also R v Evans (ED), 2014 MBCA 44 at para 10).
[8] The reviewing judge’s important, but limited, responsibility is to decide whether the record before the authorising judge or justice, as corrected and amplified on the review, provides “any basis upon which the authorizing judge [or justice] could be satisfied that the relevant statutory preconditions existed” (R v Pires; R v Lising, 2005 SCC 66 at para 30; see also Garofoli at p 1452; R v Araujo, 2000 SCC 65 at para 51; Morelli at paras 40-43; Campbell at para 14; and R v Vu, 2013 SCC 60 at para 16).
[44] Despite the applicability of the law regarding search warrants (and their issuance and review) to production orders, I agree with the position of the Crown that it should not be assumed that all relevant statutory provisions (ss. 185, 186, 487.014, 487.015, 487.016 and 487.017 of the Criminal Code) contain the same basic requirements of reasonable and probable grounds. Sections 185 and 186 for example, require far more than simply reasonable and probable grounds.
[45] I note that the production order sections have varying statutory prerequisites which stipulate what the judge or justice must be satisfied of before issuing the various productions orders:
a) Section 487.014 — general production orders require that there are reasonable and probable grounds to believe an offence has or will be committed; and that document or data in the possession of the party will afford evidence of the offence;
b) Section 487.015 — the production order for trace communications only requires that there are reasonable and probable grounds to suspect an offence has or will be committed; and that document or data in the possession of the party will assist in the investigation of the offence;
c) Section 487.016 — the production order for transmission data similarly only requires that there are reasonable and probable grounds to suspect an offence has or will be committed; and that document or data in the possession of the party will assist in the investigation of the offence; and
d) Section 487.017 — the production order for tracking data also requires that there are reasonable and probable grounds to suspect an offence has or will be committed; and that data or data in the possession of the party will assist in the investigation of the offence.
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