Case Report – Court says government must not use Norwich orders to investigate crime

On January 4th, Justice Donald Brown of the Ontario Superior Court of Justice made the following statement in dismissing a motion for a Norwich order (for pre-action production) that was brought by the Attorney-General for the purpose of tracing funds in anticipation of an application for forfeiture of money:

Norwich orders should not be used for purposes of criminal investigation. The Criminal Code and Provincial Offences Act both contain tools, available in specified circumstances, to assist in the investigation of crime. The equitable jurisdiction of the courts on which rests the power to issue Norwich orders should not be used to assist in criminal investigations. In my view courts must be vigilant in ensuring that requests for Norwich orders by the AGO, or any other government department or agency, are limited to the purpose of assisting in initiating civil proceedings, and not subtly converted into a device to investigate crime. Requests by government actors to compel disclosure of personal information from third parties, such as financial institutions, engage the consideration of privacy interests which are protected by section 8 of the Canadian Charter of Rights and Freedoms. To ensure the continued protection of such interests in the context of civil proceedings initiated by the government, the courts should screen and measure carefully requests by government parties for the issuance of the “rare and extraordinary” device of the Norwich order.

On the facts, Justice Brown dismissed the motion because the Attorney-General’s materials did not demonstrate a sufficient link between the information requested and the tracing of funds recoverable under the Civil Remedies Act.

Attorney General of Ontario v. Two Financial Institutions, 2010 ONS 47 (CanLII).

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