Two recent decisions emphasize that data seized in Canada by Canadian authorities is nevertheless subject to investigation by foreign, and in particular American authorities. Storage of data in Canada will not necessarily shield if from review by foreign authorities.
The Mutual Legal Assistance in Criminal Matters Act (the “Act”) provides for mutual legal assistance in criminal matters between Canada and foreign nations.[1] As most of us raced to get ready for the holidays, Ontario and British Columbia courts released two intriguing decisions addressing whether the Act permits expert investigators from the United States to analyze data seized under warrant in Canada.
United States of America v. Bin
Su Bin is a Vancouver business man ordered to be extradited to the U.S. to face charges of hacking into U.S. computers to steal valuable military aircraft information. The U.S. government alleges that Mr. Bin conspired with two members of the Chinese military to access without authorization the computer networks of various American defence contractors and steal highly sensitive technical information related to the F-35 and F-22 fighter aircraft.
Following Mr. Su’s arrest by the RCMP in June 2014, the U.S. government requested that the RCMP seize digital devices and media from Mr. Bin’s Vancouver residence.[2] The purpose of the seizure was to uncover email correspondence between Mr. Su and his Chinese co-conspirators. Acting under a warrant granted pursuant to s.14 of the Act, the RCMP conducted a search of Mr. Bin’s Vancouver residence and seized various digital storage devices, Mr. Bin’s mobile phone, and his laptop.[3]
The amount of documents and data seized from Mr. Bin’s residence totaled in excess of 300,000 pages, the majority of which was written in simplified Chinese characters.[4] Due to the highly technical nature of the information Mr. Bin is alleged to have stolen, the RCMP did “not have any members” capable of translating Mr. Bin’s documents.[5]
This proved to be significant to the RCMP’s ability to provide the requested investigative assistance to the U.S. as, under the Act, before there can be an Order sending the results of a search warrant to the country that has requested Canadian assistance, two conditions must be met:
(i) the peace officer who executed the warrant is required by s.14 of the Act to prepare a report that includes “a general description of the records or things seized;” and
(ii) the judge from whom the sending order is sought must then be satisfied, pursuant to s.15 of the Act, that the warrant was executed according to its terms and conditions.[6]
On the assumption that the RCMP could satisfy neither of the above conditions without first translating Mr. Bin’s documents, the British Columbia Attorney General applied to the British Columbia Supreme Court for an order permitting an FBI “clean team” of “translators, linguists and/or agents” to assist the RCMP with the translation of Mr. Bin’s documents.[7] Mr. Bin’s lawyer objected to the involvement of the FBI team on the grounds that once Mr, Bin’s information had been transferred to the U.S., a Canadian court would have no authority to ensure that the information was used lawfully.[8]
Despite sympathizing with the concerns expressed by Mr. Bin’s counsel, Justice Schultes held that s.12(2) of the Act grants a judge the power to make the order sought by the Attorney General.[9]
United States of America v. Equinix Inc.
Decided two days prior to Bin, the case United States of America v. Equinix Inc., involved 32 computer servers seized pursuant to the Act at the request of the U.S..[10] Analogously to Bin, Equinix involved an application by the Attorney General of Canada for an order permitting a team of American investigators to examine the seized servers in Canada.[11] The Attorney General also requested permission for the American team to prepare a report pursuant to s.14 of the Act, outlining the data stored on the seized servers.[12]
Framing the issue somewhat differently from Justice Schultes, Justice Quigley of the Ontario Superior Court stated that the “core” of the Attorney General’s application is the need to balance the privacy interests of Canadians with Canada’s international obligations and the requirements of the Act.[13] Finding that it is unreasonable to assume that U.S. officials will intentionally violate a Canadian court order,[14] Justice Quigley held that the American investigators could examine the servers, and produce their proposed report, provided they agreed to submit a copy of the report to Justice Quigley prior to applying for a sending order under s.15 of the Act.[15] In essence, Justice Quigley found that the involvement of US investigators in a Canadian data seizure is permissible, provided the US investigators agree to submit to Canadian judicial oversight.
Conclusion
The Bin and Equinix decisions illustrate that data seized in Canada by Canadian authorities is nevertheless subject to investigation by foreign, and in particular American authorities. Directors should understand that storing data in Canada will not necessarily shield that data from review and evaluation. Indeed the express purpose of the Act is to facilitate information sharing between Canadian and foreign law enforcement bodies.
By Douglas Scott, McCarthy Tétrault
Douglas Scott is an articling student in our Calgary office.
[1] Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.).
[2] United States of America v. Bin, 2015 BCSC 2381 at para 2.
[3] Ibid at para 3.
[4] Ibid at para 4.
[5] Ibid at para 5.
[6] Ibid at para 6.
[7] Ibid at para 8.
[8] Ibid at para 17.
[9] Ibid at para 27.
[10] United States of America v. Equinix Inc., 2015 ONSC 7803 at para 1.
[11] Ibid at para 5.
[12] Ibid.
[13] Ibid at para 30.
[14] Ibid at para 26.
[15] Ibid.
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