In 2004, the federal government passed Bill C-45, An Act to Amend the Criminal Code (capital markets fraud and evidence gathering). The Act is most known in my practice for creating criminal whistleblower protection, but it also created a new investigative tool called a “production order” by which third-parties may be required to produce documents, produce data or even prepare documents (based on existing data) for production. A production order is meant to be an easier-to-administer alterative to search warrants. The Department of Justice backgrounder on the Bill also says production orders are privacy-protective because they do not involve the fishing that’s associated with the execution of a search warrant.
In Telus Mobility, the basic issue is whether a third-party can seek reimbursement for the costs of complying with a production order. According to Julian Ho’s good summary at The Court, the Supreme Court of Canada will hear oral arguments on the case on December 13th. Julian’s detailed summary of the case is here.