British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5, virtual presence, production order
In a day and age where a large portion of both innocent and criminal communications travel across the border and then reside on servers outside of the country, many Canadian police and prosecutors were understandably excited by the British Columbia Court of Appeal’s decision in Brecknell. This case concludes that a Canadian court can order an entity that is only ‘‘virtually present” to produce records pursuant to a Criminal Code production order.
While it is a case that deals with a compelling issue faced by Canadian law enforcement in an environment where hundreds of such orders are issued naming US companies and are generally followed by them, the decision is wrongly decided for a number of reasons. The British Columbia Court of Appeal erred in determining that a legal person who solely has a ‘‘virtual presence” in Canada is, in law, ‘‘present in Canada” for the purposes of the Criminal Code. In addition, the Court of Appeal misapplied the existing authorities on domestic and international law to determine that the Criminal Code has extraterritorial effect. Finally, an ex parte appeal that departed significantly from our adversarial system should be of questionable precedential value.
David T Fraser, "British Columbia (Attorney General) v. Brecknell", Case Comment, (2020) 18:1 CJLT 135.