Application for production order (Re)

Application for production order (Re)

Where the data custodian (Facebook, Inc.) has a physical presence in Canada and the investigator can execute necessary steps from within Canada, a provincial court has in personam jurisdiction under s.487.014 to grant a general production order even if the data may be stored abroad; sealing was not warranted because the risk of disclosure was minimal and a mandatory non-publication order under s.486.4 sufficed; a broad non-disclosure order was not necessary or appropriate because compliance with US law (eg CDA) and need to consult counsel/US authorities meant the custodian could be obliged to disclose the existence of the order, and the prosecution did not show disclosure would jeopardize...

Citation
2020 NSPC 55
Parties
Applicant (crown): Nova Scotia Public Prosecution Service; Respondent (data Custodian): Facebook, Inc.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
24 December 2020
Procedural Posture
Application for Production Order (criminal Code S.487.014) / Ex Parte Application; Decision on Production, Sealing and Non Disclosure Orders
Outcome
Application for directions dismissed; general production order granted to Facebook, Inc.; sealing order declined; non-disclosure order declined; mandatory non-publication order under s.486.4 issued.
Legal Topics
Production Order, Sealing Order, Non Disclosure Order, Extraterritorial Jurisdiction, Social Media Data Preservation and Disclosure
Source Language
English
Criminal Law Evidence Privacy Law Procedural Law Conflict of Laws/international Law Production Order Sealing Order Non Disclosure Order +2 more

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Parties

Nova Scotia Public Prosecution Service

Applicant (crown)

Facebook, Inc.

Respondent (data Custodian)

Procedural Posture

Application for Production Order (criminal Code S.487.014) / Ex Parte Application; Decision on Production, Sealing and Non Disclosure Orders

Legal Issues

  1. 1 Whether a provincial court may grant a production order under s.487.014 with putative extraterritorial effect
  2. 2 Whether physical presence of a data custodian in Canada suffices for in personam jurisdiction to compel production where data may be stored abroad
  3. 3 Whether a sealing order under s.487.3 is justified

Ratio Decidendi

Where the data custodian (Facebook, Inc.) has a physical presence in Canada and the investigator can execute necessary steps from within Canada, a provincial court has in personam jurisdiction under s.487.014 to grant a general production order even if the data may be stored abroad; sealing was not warranted because the risk of disclosure was minimal and a mandatory non-publication order under s.486.4 sufficed; a broad non-disclosure order was not necessary or appropriate because compliance with US law (eg CDA) and need to consult counsel/US authorities meant the custodian could be obliged to disclose the existence of the order, and the prosecution did not show disclosure would jeopardize...

Court Disposition

Application for directions dismissed; general production order granted to Facebook, Inc.; sealing order declined; non-disclosure order declined; mandatory non-publication order under s.486.4 issued.

Orders

  • General production order granted to Facebook, Inc. in the form submitted by the prosecution (s.487.014)
  • Sealing order under s.487.3 denied