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| Patrick Ducharme |
A Judge or Justice may order a person to produce documents or copies of them certified by affidavit to be true copies. A production order must satisfy the same requirements as a search warrant. Production orders are relatively new to the criminal law. The order is to be in Form 5.005. The form demonstrates that the order may require a person other than a person under investigation to produce a copy of a document in their possession or to prepare and produce a document containing data in their possession that will afford evidence respecting the commission of an offence. A person who is under investigation for “the offence” may not be made the subject of the production order.
Production orders have been common in relation to the investigations of regulatory offences. Unlike search warrants, where the police attend at a place and take the evidence, production orders compel a person to produce the evidence and deliver it to the police. Production orders may be quashed on application to the Superior court. For example, a production order directed to the employer of a doctor charged with sexual assault, for information on all the patients seen by that particular doctor, but based merely on a police officer’s suspicion, was quashed because there were insufficient grounds for the issuing Justice to conclude that an offence under the Code had been committed or should have been suspected as having been committed.
The order may be made only where the Justice or Judge is satisfied on an ex parte application based upon information on oath in writing that there are reasonable grounds to believe that an offence has been or will be committed, and, that the document or data sought by the police will afford evidence of the offence, and that the document or data is in the person’s possession or control at the time of issuance.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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