Production orders under the Criminal Code are powerful investigative tools used by law enforcement to compel documents from organizations that are not themselves under investigation. These frequently include financial institutions, telecommunications services providers and hospitals. A production order is typically obtained ex parte (i.e., without notice) and there may not be any advance warning that it is coming. While law enforcement will sometimes contact the organization that is subject to the order in advance to determine what, if any, relevant documents it has in its possession, there is no requirement that it do so. As a result, organizations are frequently confronted with orders that are overbroad, that make onerous demands, or that compel production of privileged, confidential or commercially sensitive information which may have little or no relevance to the investigation. Compounding the challenges that organizations face in responding to production orders is that the turnaround time for the production of documents is typically very short.

On November 30, 2018, in R. v. Vice Media Canada Inc., the Supreme Court of Canada clarified the procedural routes available to organizations seeking to challenge production orders. Organizations have two options, as noted below: 

  1. An organization may pursue a statutory right of review under section 487.0193(1) of the Criminal Code. An application to revoke or vary an order under this section must be made to the judge or justice who made the order, or to a judge in the judicial district where the order was made. For the application to succeed, the reviewing justice or judge must be satisfied that:
    1. it would be unreasonable in the circumstances to require the applicant to prepare or produce the document; or
    2. production of the document would disclose information that is privileged or otherwise protected from disclosure by law.
  2. Orders (other than those made by a justice of a superior court) may be reviewed by filing an application for certiorari in the superior court. When an organization takes this route, the court will consider whether — in light of the record before the authorizing judge, as amplified on review — the authorizing judge "could have" granted the authorization. In other words, the court will consider whether the evidence before the issuing justice was sufficient for the issuance of an order.

The upshot of the Supreme Court’s decision is that the statutory right of review is going to be the much preferred mechanism for challenging a problematic production order. This is because the statutory criteria for having a production order reviewed or revoked include that the order makes unreasonable demands on the organization or that it requires the organization to produce privileged documents. Conversely, an application for certiorari is not based on these or similar concerns, and will only succeed if there was an insufficient evidentiary basis for the order.

Because notice of an intention to pursue the statutory right of review must be provided to the officer who obtained the order within 30 days of its issuance, the Supreme Court’s decision underscores the need to obtain timely legal advice when served with a potentially problematic production order.

Authors

Ewa Krajewska 
EKrajewska@blg.com
416.367.6244

Graeme A. Hamilton 
GHamilton@blg.com
416.367.6746

David Di Paolo 
DDiPaolo@blg.com
416.367.6108

Nadia Effendi 
NEffendi@blg.com
416.367.6728 (Toronto) / 613.787.3562 (Ottawa)

Expertise

Investigations and White Collar Defence
Appellate Advocacy