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Cross-border investigations: B.C. Court affirms broad power to issue legal process against foreign companies

Author(s): Christopher Naudie, John Cotter

Dec 18, 2018

Law enforcement authorities in Canada have always had broad search and seizure powers to obtain records located in Canada that are relevant to an ongoing criminal or white-collar investigation. In 2004, law enforcement authorities acquired yet another powerful investigative tool when Parliament adopted amendments to the Criminal Code. This new tool allows the Crown to seek an order from the court that compels a third-party custodian of data or records to produce information that is relevant to an ongoing investigation.[1] In recent years, law enforcement authorities have sought to test whether they can invoke these relatively new powers to compel the production and disclosure of private email communications, messages and other information that is held outside Canada in the cloud or on foreign-based data services.[2]This year, these efforts met with notable success in Attorney-General (B.C.) v. Brecknell (Brecknell), a decision of the B.C. Court of Appeal with potentially serious implications for foreign companies that have a “virtual presence” in Canada.

The significance of the Brecknell case

Before Brecknell, decisions in criminal and white-collar cases were mixed as to whether production orders could be obtained against foreign companies that host data of Canadians on servers outside Canada. Some courts refused to grant such orders, taking the view that the court’s ...

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