R v West, 2020 ONCA 473

The Issue

What is the standard for issuance of a Production Order pursuant to s487.014; and where that standard is not properly articulated and met what are the consequences.

The Answer

Section 487.014 requires reasonable grounds to believe (not a reasonable suspicion). Where the Informant asserts only a reasonable suspicion in the ITO and the issuing justice authorizes the Production Order, there will be a violation of section 8 and likely exclusion of evidence under section 24(2), as there was here.

The Fine Print

Section 487.014(2) explicitly requires that the issuing justice or judge be “satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe…”. In the ITO in this case the officer asserted only “grounds to suspect”. This lower standard did not support issuance. The issuing judge erred, as did the trial judge who found the ITO to be valid. The proper interpretation of s487.014 was recently set out in R v Vice Media Canada Inc, 2017 ONCA 231 at para 28 (aff’d 2018 SCC 53):

A production order under s. 487.014 of the Criminal Code is a means by which the police can obtain documents, including electronic documents, from individuals who are not under investigation. The section empowers the justice or judge to make a production order if satisfied, by the information placed before her, that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. If those three conditions exist, the justice or judge can exercise her discretion in favour of granting the production order. [Emphasis added.]

In this case, the result of this error, which had no valid explanation, was the exclusion of evidence under section 24(2): see paras 30-42.