order for the tracing of communications or for transmission data is available on a
“reasonable grounds to suspect” basis. Police may also seek production orders for
tracking data,
89 or financial data
90 on a ‘reasonable grounds to suspect’ basis. A
judge may impose any conditions considered appropriate on any of these production
orders.
91 A judge may also prohibit the person against whom such an order is made
from disclosing the existence, or some or all of the contents of any such order for a
period of time specified in the order.
92 Although the Criminal Code provides for
such orders to be made on an ex parte basis, the entity that is ordered to produce data
or documents is entitled to ask a court to review, revoke or vary the order within
30 days of its making.
93
Any data retained by organizations as a result of preservation demands or orders,
or production orders, must be destroyed at the expiration of the order if such data
would not otherwise be retained in the normal course of business.
94 However, it
should be noted that these provisions regarding the destruction of data relate only to
the copies preserved by the organizations. Police who obtain data under production
orders or warrants are not subject to any specific legislative requirements regarding
the retention, destruction, or secure storage of this data.
95
Warrants are available for the interception of private communications, although
the threshold for such warrants is relatively high.
96 It is otherwise an offence to
intercept private communications. However, the evolution of contemporary communications technology has eroded the robustness of these protections. The
Supreme Court of Canada has found, for example, that accessing historical text
message records is not an interception of private communications. In R. v. Jones,
97
the majority of the Court noted that the stringent warrant requirements for interception were crafted in light of the potential that police might proactively intercept
communications in the hope of detecting criminal conduct.
98 However, according to
the majority, once communications have taken place, as is the case with historical
text messages, the same privacy concerns are not at play. The majority reached this
conclusion in spite of the fact that the production order at issue included text
messages sent or received on the date of the authorization.
Warrants for the installation of tracking devices on vehicles or other ‘things’ are
available on a “reasonable grounds to suspect” standard.
99 A warrant to track an
89 Criminal Code, s. 487.017.
90 Criminal Code, s. 487.018.
91 Criminal Code, s. 487.019.
92 Criminal Code, s. 487.0191.
93 Criminal Code, s. 487.0193.
94 Criminal Code, s. 487.0194.
95 This lack of guidance was criticized in R. v. Rogers Communication 2016 ONSC 70.
96 Criminal Code, ss. 185, 186.
97 [2017] SCJ No 60, 2017 SCC 60 [Jones].
98 Jones, ibid. at para 74.
99 Criminal Code, s. 492.1(1).
Data Protection and the Internet: Canada
69
“reasonable grounds to suspect” basis. Police may also seek production orders for
tracking data,
89 or financial data
90 on a ‘reasonable grounds to suspect’ basis. A
judge may impose any conditions considered appropriate on any of these production
orders.
91 A judge may also prohibit the person against whom such an order is made
from disclosing the existence, or some or all of the contents of any such order for a
period of time specified in the order.
92 Although the Criminal Code provides for
such orders to be made on an ex parte basis, the entity that is ordered to produce data
or documents is entitled to ask a court to review, revoke or vary the order within
30 days of its making.
93
Any data retained by organizations as a result of preservation demands or orders,
or production orders, must be destroyed at the expiration of the order if such data
would not otherwise be retained in the normal course of business.
94 However, it
should be noted that these provisions regarding the destruction of data relate only to
the copies preserved by the organizations. Police who obtain data under production
orders or warrants are not subject to any specific legislative requirements regarding
the retention, destruction, or secure storage of this data.
95
Warrants are available for the interception of private communications, although
the threshold for such warrants is relatively high.
96 It is otherwise an offence to
intercept private communications. However, the evolution of contemporary communications technology has eroded the robustness of these protections. The
Supreme Court of Canada has found, for example, that accessing historical text
message records is not an interception of private communications. In R. v. Jones,
97
the majority of the Court noted that the stringent warrant requirements for interception were crafted in light of the potential that police might proactively intercept
communications in the hope of detecting criminal conduct.
98 However, according to
the majority, once communications have taken place, as is the case with historical
text messages, the same privacy concerns are not at play. The majority reached this
conclusion in spite of the fact that the production order at issue included text
messages sent or received on the date of the authorization.
Warrants for the installation of tracking devices on vehicles or other ‘things’ are
available on a “reasonable grounds to suspect” standard.
99 A warrant to track an
89 Criminal Code, s. 487.017.
90 Criminal Code, s. 487.018.
91 Criminal Code, s. 487.019.
92 Criminal Code, s. 487.0191.
93 Criminal Code, s. 487.0193.
94 Criminal Code, s. 487.0194.
95 This lack of guidance was criticized in R. v. Rogers Communication 2016 ONSC 70.
96 Criminal Code, ss. 185, 186.
97 [2017] SCJ No 60, 2017 SCC 60 [Jones].
98 Jones, ibid. at para 74.
99 Criminal Code, s. 492.1(1).
Data Protection and the Internet: Canada
69