R. v. Walkem, 2016 BCPC 359

Citation: Date: 20161116 2016 BCPC 359 Police File No: 2016-32834 IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER of an Application for a Production Order Pursuant to Subsection 487.014(2) of the Criminal Code and IN THE MATTER of an Application for an Order to Seal the Material in Support of and Resulting from this Application Pursuant to

Section 487.3 of the Criminal Code REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL BACKGROUND [ 1 ] A member of the Royal Canadian Mounted Police (RCMP) seeks a Production Order directed to Craigslist Inc. in furtherance of an investigation where it is alleged an accused placed advertisements on Craigslist Inc.’s internet service to attract clients to the accused’s criminal enterprise. [ 2 ] Craigslist Inc. is an international company, with headquarters in San Francisco, California, United States of America.

There was no evidence presented in the RCMP member’s supporting Affidavit suggesting that Craigslist Inc. has any sort of physical presence or office location anywhere in Canada. [ 3 ] A first Application for the Production Order was rejected by Judicial Justice Langford on the basis that Craigslist Inc. is an American company and, as such, the Court may not have authority to issue a Production Order.

The RCMP member was directed to re- submit the application if an office for Craigslist Inc. could be located in British Columbia, or if there was case authority to support what was being requested. [ 4 ] This second Application for a Production Order was presented to the Court with the case authority of Equustek Solution Inc. v. Google Inc . 2015 BCCA 256 ( Equustek ) . ISSUE TO BE DECIDED [ 5 ] Does Equustek provide the necessary authority to permit the Court to grant a Production Order compelling Craigslist Inc. to provide documents relevant to the present criminal investigation?

DISCUSSION [ 6 ] Equustek is a civil injunction case that involved the application of the Court Jurisdiction and Proceedings Transfer Act ( CJPTA ), specifically s. 3(

e) of the CJPTA that grants a court territorial competence in a proceeding that is brought against a person if there is a "real and substantial connection between British Columbia and the facts on which the proceeding against that person is based". The CJPTA does not apply to criminal matters. [ 7 ] As the B.C. Supreme Court in R. v. Walkem , [1908] B.C.J. No. 37 (S.C.) , said at para. 27 : “Crimes are in their nature local, and the jurisdiction of crimes is local.” Further, as N. Rafferty & S. Pitel comments in Conflicts of Law (Irwin: 2010), p. 56: Criminal law is highly territorial.

There are no choice of law rules for crimes: each jurisdiction applies its own criminal law. Countries do not enforce the criminal law of other countries.

[ 8 ] A search reveals two cases discussing records from Craigslist Inc. The first is R. v. Morrison , 2014 ONCJ 774 . However, the police officer in that case appeared to “direct an inquiry to Craigslist requesting production of business records relating to the posting of a “personal ad” (para. 7) and a representative of Craigslist Inc. responded to the police officer’s inquiry. There was no mention of a Production Order under the Criminal Code or Mutual Legal Assistance Treaty ( MLAT ). Second, in R. v.

Ngai , 2013 ABPC 16 , the Court said at para. 169: In order to subscribe on the Craigslist website, one has to open an account which is paid by a credit card and that information is retained in the United States (USA). He never sought to obtain the subscription records from Craigslist for the ads in Exhibit 2.

This requires a type of Production Order applied for through our consulate in Ottawa and is a long and time-consuming procedure and he decided not to do that. [emphasis added] [ 9 ] There is some case law involving disclosure of Facebook accounts held in the United States of America (similar to the situation for Craigslist) done by way of the ( MLAT ) and not by way of a Production Order under the Criminal Code . These cases include:

a) R. v. Rafferty, 2012 ONSC 742 ;

b) R. v. Moazami , 2013 BCSC 2398 ;

c) R. v. Moazami , 2014 BCSC 1727 ;

d) R. v. Groves , 2015 ONSC 2590 ; and

e) R. v. C.A.S. , 2016 BCPC 162 . DECISION [ 10 ] Equustek , being a civil case, does not give the Court the authority to grant a Production Order under the Criminal Code that would require disclosure/production of records on the part of an entity like Craigslist Inc. that has no physical presence or office location in Canada. [ 11 ] The application for a Production Order is refused. ___________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC