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Data Protection Leader

British Columbia: Appeal Court issues ruling in Brecknell

The British Columbia Court of Appeal (‘the Court’) issued, on 9 January 2018, its decision in British Columbia (Attorney General) v. Brecknell granting jurisdiction to the Royal Canadian Mounted Police (‘RCMP’) to issue a production order requiring Craigslist Inc. to provide it with information relating to a user’s post on Craigslist’s website. The RCMP had sought to obtain information on the user’s name; postal, email and IP addresses; phone number; and a record of the post itself; but Craigslist had argued that, since it is based in the US and does not have a physical presence in Canada, it would not be subject to the production order under Section 487.014(1) of the Criminal Code.

François Joli-Coeur, Senior Associate at Borden Ladner Gervais LLP, highlighted, “Brecknell will probably have an important impact on other online companies. In light of the recent trend of Canadian courts to extend their jurisdiction and the enforcement of privacy and consumer protection laws to such online service providers, there are good chances that non-Canadian online service providers will increasingly become the target of production orders under the Criminal Code if a court is able to find a close relationship between the object of the offence [i.e. users’ records] and the service provider. In Brecknell, the Court dismissed the distinctions between physical and virtual presence where Craigslist’s ‘virtual presence’ in Canada was ‘closely connected to the circumstances to the alleged offence’ for which the product order was sought. The Court also noted the fact that Craigslist allows Canadians to target specific locations in British Columbia where they wish to sell or purchase goods and services, as well as the fact that Craigslist derives revenue from British Columbia.” 

The Court remitted the case to the Provincial Court of British Columbia for reconsideration of the application for the production order.

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