In R. v. Love, 2022 ABCA 269, August 15, 2022, the accused was convicted of a number of child pornography offences.
During the police investigation, a provincial court judge issued a general production order for subscriber information for a social media account. It was served on Facebook Inc in the United States.
On an appeal from conviction, the accused argued that “the trial judge erred in concluding the Provincial Court had jurisdiction to issue the order under s 487.014 since the section is silent on extraterritorial effect and offends the Supreme Court of Canada’s guidance on customary international law and comity as discussed in Hape”.
The Alberta Court of Appeal rejected this argument. It held that “[w]ith due respect to the Newfoundland Provincial Court, s 487.014 has no impermissible extraterritorial effect when the person subject to the production order has a virtual presence in the local jurisdiction. As stated by the Supreme Court in Google Inc. v Equustek Solutions Inc., 2017 SCC 34 at para 38, ‘[w]hen a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world’” (at paragraph 39).
Excision of Evidence from an ITO:
The Court of Appeal noted that “[a]utomatic excision refers to the removal of improperly obtained information from an ITO. Typically, the doctrine arises where information has been obtained in breach of the Charter” (at paragraph 47). The Court of Appeal suggested that the “rigidity with which automatic excision must be applied at the investigation stage, where liberty is not at stake, seems out of step with the flexible and contextual approach taken under s 24(2) at the trial stage, where the liberty of an accused is unquestionably at stake” (at paragraph 55). However, it concluded that “[t]he fact remains that the lower courts are governed by the Supreme Court’s authority, restated as recently as 2014 in R v Spencer, 2014 SCC 43 at para 74: unconstitutionally obtained information must be excised from an ITO” (at paragraph 65).
Extension of the Automatic Excision Rule to Warrantless Contexts:
The Court of Appeal pointed out that the Crown “conceded” that when arrested, “the appellant was arbitrarily detained in his bedroom and was not promptly informed of his right to counsel, occasioning breaches of ss 9 and 10(b) of the Charter. During that period Detective Jacobs asked for the appellant’s email address. When the answer he received matched an email address obtained through other investigative steps, he concluded he had grounds to arrest the appellant, and did so” (at paragraph 72).
The Court of Appeal declined “to extend the automatic excision rule to warrantless contexts for three essential reasons. First, as discussed above, the doctrinal basis for automatic excision is uncertain enough to make extension unwise…Second, automatic excision in the warrantless context would be impractical…Our third reason for rejecting the extension of automatic excision is that doing so would conflict with the Storrey test, by which we are bound just as we are bound by the Grant test in the ITO context…Automatic excision, operating after-the-fact, would nullify the subjective focus of the Storrey test by artificially altering the information on which the arresting officer relied at the time. It would distort the objective aspect of the test by shifting the focus away from the factual basis for the officer’s action. It would conflict with the Supreme Court’s direction that an officer exercising a warrantless power ‘is entitled to disregard only information which he has good reason to believe is unreliable’: Chehil at para 33” (at paragraphs 89, 90, 93 and 94).