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Charter - Section 8 - Administrative. Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court considers Charter s.8 ['search and seizure'], this in the context of regulatory/investigative enforcement:[28] Another purpose of section 11 is to grant the application judge sufficient authority to ensure that the Commissioner’s investigative powers are exercised in compliance with section 8 of the Charter, protecting against unreasonable search or seizure.
[29] It is well established that compulsory production orders in a regulatory context, such as those under section 11 of the Competition Act, are "“seizures”" subject to section 8: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425 at pp. 442, 494, 505, 592 (S.C.C.) [Thomson Newspapers]; R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 at pp. 640-42 (S.C.C.) [McKinlay Transport]; British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3 at paras. 59-60 (S.C.C.) [Branch]; Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at paras. 37-38 [Binance], leave to appeal requested, 42156 (S.C.C.).
[30] Section 11 of the Competition Act was enacted in 1986 by Bill C-91 in response to Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (S.C.C.) [Hunter]. In Hunter, the Supreme Court of Canada struck down investigatory powers held by the Director of the Restrictive Trade Practices Commission (RTPC) under section 10 of the Combines Investigation Act, R.S.C. 1970, c. C-23. The Combines Investigation Act was the predecessor of the Competition Act and the Director of the RTPC was the predecessor of the Commissioner. The Court found that the statutory provision violated section 8 of the Charter, which provides:"Search or seizure"
"Fouilles, perquisitions ou saisies"
"8 Everyone has the right to be secure against unreasonable search or seizure."
"8"" Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives." [31] The responsible minister for Bill C-91, Michel Côté, explained to the House of Commons that the investigative powers under the new Competition Act were designed to comply with Hunter, and would "“protect the individual rights enshrined in the Canadian Charter of Rights and Freedoms while providing the tools provided to enforce the law properly”": Canada, House of Commons Debates, 33rd Parl., 1st Sess., Vol. 8, p. 11930 (7 April 1986); see also Michel Côté, Competition Law Amendments: A Guide (Ottawa: Consumer and Corporate Affairs Canada, 1985) at pp. 13-14.
[32] The text and the legislative history of section 11 demonstrate that the application judge’s discretion must be exercised consistently with the provision’s dual purpose: empowering the Commissioner to investigate and enforce competition law and protecting the section 8 Charter rights of those under investigation.
[33] The reasonableness of a search and seizure under section 8 is evaluated by reference to the subject’s expectation of privacy: Hunter at p. 159; McKinlay Transport at p. 642; R. v. Singer, 2026 SCC 8 at para. 36. Section 8 mandates that judges retain the discretion to refuse production orders to preserve the privacy interests of targeted parties: Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 at paras. 21-23 [RBC]; Derakhshani at para. 19, citing Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416 at p. 443 (S.C.C.) [Baron].
[34] There is no single list of factors to test the reasonableness of a search or seizure: Baron at pp. 435-37; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50 (SCC), [1991] 3 S.C.R. 459 at p. 478 (S.C.C.) [CBC]; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para. 57 [Goodwin]; Canada (Attorney General) v. Canadian Civil Liberties Association, 2026 FCA 6 at para. 438 [CCLA]. However, relevant considerations include the nature and the purpose of the governing legislative scheme, the mechanism employed, the potential intrusiveness of the search or seizure, and the availability of judicial supervision: Goodwin at para. 57, citing Del Zotto v. Canada, 1997 CanLII 6349 (FCA), [1997] 3 F.C. 40 at para. 13 (F.C.A.) (per Strayer J.A., dissenting), adopted by the Supreme Court of Canada, 1999 CanLII 701 (SCC), [1999] 1 S.C.R. 3 at p. 4 (S.C.C.); see also Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 106 and Binance at paras. 57-62.
[35] Applying this contextual approach, three factors support relaxation of the reasonableness standard for production orders under section 11. First, a diminished expectation of privacy attaches to business records, because they do not normally deal with the intimate aspects of personal identity which the right of privacy is intended to protect: Thomson Newspapers at pp. 517-18 (per La Forest J.); McKinlay Transport at p. 649. Second, the reasonableness standard is generally more flexible under regulatory statutes than in criminal law: McKinlay Transport at pp. 645-46; Baron at pp. 435-37; Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 at pp. 420-21 (S.C.C.); R. v. Jarvis, 2002 SCC 73 at paras. 71-72. Third, a production order is much less intrusive than a physical entry onto property or the search of a person’s body, both of which require more stringent judicial oversight: Baron at pp. 444-45; see also Thomson Newspapers at pp. 520-22 (per La Forest J.); McKinlay Transport at pp. 649-50; Binance at para. 40, citing Branch at paras. 58, 60-61.
[36] Nonetheless, section 8 meaningfully constrains regulators’ ability to require the production of business records. Commercial documents are protected under section 8 because they possess an informational privacy interest—they inevitably reveal aspects of the business that the operator would rather keep private: R. v. Law, 2002 SCC 10 at para. 16; 143471 Canada Inc. v. Quebec (Attorney General), 1994 CanLII 89 (SCC), [1994] 2 S.C.R. 339 at p. 379 (S.C.C.) (per Cory J., for the majority on this point); see also McKinlay Transport at p. 642. Binance, a recent decision applying section 8 to the production of business records, considered a provision empowering the Ontario Securities Commission to order the production of documents: Securities Act, R.S.O. 1990, c. S.5, s. 13(1). While no relevance standard had been written into the statutory provision, the Court of Appeal for Ontario found that section 8 required the regulator to have a "“reasoned basis for believing”" the records sought "“may be relevant”" to an investigation: Binance at paras. 89-98. The Court determined that the summons issued by the Commission was overbroad and contravened section 8 because it purported to compel the target to produce documents that the Commission had no foundation to believe might be relevant to its investigation.
[37] Here, unlike the statutory provision at issue in Binance, subsections 11(1) and 11(2) of the Competition Act prescribe a minimum standard of relevance. However, even where the records are relevant to the Commissioner’s inquiry, the application judge retains a residual discretion to refuse the requested production order. The contours of this discretion are defined by section 8. Authorizing judges must evaluate the impact on the subject of the search or the seizure and determine whether "“in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the [subject’s] privacy in order to advance its goals”": Hunter at pp. 157-60; see also R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 at p. 428 (S.C.C.) [Dyment].
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[55] Other courts have used the language of "“burden”" under section 8 of the Charter when discussing whether the scope of the search or seizure exceeds what is relevant to the government’s inquiry. For example, in Thomson Newspapers at p. 532, Justice La Forest likened the burdensomeness of a search or seizure to its potential "“overbreadth”" or whether "“documents not relevant to the inquiry in progress are being demanded”" (see also Binance at para. 99). However, in my view, Bell Mobility went too far in suggesting that production orders should be limited by the "“burden”"—meaning "“reasonable efforts”" or costs—imposed on the target: see Bell Mobility at paras. 50-51. These considerations are not supported by the section 8 jurisprudence, which focusses on the privacy interests of the target of the search or seizure, not the difficulty of responding to a production order or the target’s economic interests: see e.g. Hunter at pp. 159-60; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at p. 292 (S.C.C.); R. v. Tessling, 2004 SCC 67 at paras. 20-23; R. v. A.M., 2008 SCC 19 at para. 33; R. v. Ahmad, 2020 SCC 11 at para. 38; CCLA at paras. 409-10, 416, citing Goodwin at para. 55.
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[58] On the factual record before it, the Federal Court did not make a reviewable error when it declined to order the production requested by the Commissioner. An application judge cannot conduct the balancing exercise required by section 8 — determining whether the intrusiveness of the production order is justified by the state’s interest in law enforcement — if they do not know the extent of what the state seeks to have produced. . Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Ont CA, 2025) the Ontario Court of Appeal allowed joined appeals, here brought against investigative administrative "summons demanding the production of documents and, depending on how the summons is interpreted, responses to interrogatories (“information”) from Binance about its operations ...".
The court decides a s.8 Charter issue, here in this Securities Act [s.13 'Power of investigator or examiner'] administrative-investigative context:[83] I will begin by returning to the principles that apply in assessing the reasonableness of searches and seizures in the regulatory context. As I have explained, the decision in Hunter v. Southam Inc. outlined the principles that operate in identifying the reasonableness of a search in criminal cases. Those principles were helpfully distilled by Wilson J., in McKinlay Transport, at pp. 642-43. In simple terms they require that: (1) a warrant be obtained from an impartial adjudicator; (2) based on reasonable and probable grounds to believe that an offence has been committed; and (3) reasonable and probable ground to believe that evidence of the offence will be obtained. Of most relevance to this appeal, they also require that (4) “only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation” (or “principle four”).
[84] As I have acknowledged and explained, these criminal law principles cannot be applied in most circumstances to regulatory searches and seizures without undermining the ability of regulators to ensure compliance. Accordingly, reasonableness is determined in the regulatory context using a more flexible approach, sensitive to the needs and purposes of the regulatory model in question. In McKinlay Transport Ltd., Wilson J. therefore endorsed the “rough model of reasonableness employed in production of documents in civil cases”, where “what is reasonable ‘depends upon consideration of what is sought, from whom, for what purpose, by whom, and in what circumstances’”: McKinlay Transport Ltd., at p. 646, quoting Alberta (Human Rights Commission) v. Alberta Blue Cross Plan, 1983 ABCA 207, 1 D.L.R. (4th) 301, at p. 307.
[85] It is well established that when using this rough and ready metric that the first three Hunter v. Southam Inc. principles do not apply at all in most regulatory contexts: Thomson, at pp. 531-32, per La Forest J. Since they are not relevant to the issue before me, I will say no more about them.
[86] I also accept the Commission’s position that principle four from Hunter v. Southam Inc. cannot generally be applied directly in regulatory cases. This is also well settled by the case law: Thomson, at p. 532; Branch, at para. 50-52. A moment’s reflection explains why this is so.
[87] First, principle four requires in criminal cases that to constitute a reasonable seizure, the documents seized must be “strictly relevant to the offence under investigation” (emphasis added): McKinlay Transport, at p. 642-43. Yet, in the regulatory context, it will not ordinarily be possible to ensure effective regulation without permitting regulators to engage in general compliance inquiries, even where they do not have reasonable grounds or even reasonable suspicion that an offence has occurred: McKinlay Transport Ltd., at pp. 648-49. Given that there may be no specific offence under investigation for a legitimate inquiry to be undertaken, it would be illogical to limit the seizure of documents or information to material “relevant to the offence under investigation” as set out in Hunter v. Southam Inc.
[88] Second, principle four imposes a “strictly relevant” limitation. In circumstances where a physical search is underway to decide what, if anything, to seize, as is typically the case in the criminal context, it is possible for authorities to vet the documents before deciding what to take away. In the criminal context, using a “strictly relevant” restriction is generally workable. But where documents or information are ordered to be produced by a regulator, the regulator will not see those documents or receive that information until it arrives, and therefore will have no way of assuring relevance: McKinlay Transport Inc., at p. 650. Hence, a “strict” relevance requirement cannot sensibly be imposed. The most that can be expected is that the regulator will identify categories of documents that they have reason to believe may be relevant.
[89] Having said this, the fact that principle four does not generally apply to regulatory seizures does not mean that s. 8 is unconcerned about the relevance of the material demanded in the regulatory context. This is key. In Thomson, after finding that Hunter v. Southam Inc.’s principle four does not apply to production orders issued to regulate anti-competition restrictions, La Forest J. made clear in his discussion at p. 530, that a less demanding relevance requirement operates. Namely, “The material sought must be relevant to the inquiry in progress.” He explained that “[t]he question of relevancy … must be related to the nature and purpose of the power accorded”. Then, at p. 532, speaking in the context of a subpoena duces tecum demanding the production of documents, he cited two components of the American “relevance to a lawful inquiry” test to explain how relevance is to be determined. The first component is that “the subpoena must be sufficiently clear and specific to inform the subpoenaed party of precisely what documents are being demanded”, and the second is that “the subpoena must only be as broad as necessary for the purposes of the inquiry in progress.” He added that in the United States any “unduly broad subpoena will be struck down on grounds of burdensomeness”: Thomson, at p. 532. He described these requirements as “self-evidently sensible”, “common sense standards by which to measure [relevance]”: Thomson, at p. 532. It follows that La Forest J. determined that even in the regulatory context, “the material sought must be relevant to the inquiry in progress”, although not strictly relevant, and that it will not be relevant if the demands made in the subpoena are broader than needed for the purposes of that inquiry.
[90] Things would have been simpler had all the justices in Thomson either signed onto La Forest J.’s judgment or weighed in directly on whether they agreed with this approach, but they did not do so. What is clear, however, is that they all considered a relevance evaluation to be an essential component of the power to seize. Wilson J., with whom Lamer J. expressed agreement, would have applied the full fourth Hunter requirement that the documents be strictly relevant to an offence under investigation: Thomson, at p. 442, 446, 501. Although Sopinka J. found that s. 8 was not engaged, he affirmed that, altogether apart from the Charter, and despite the breadth of the language of the statutory authority to compel production in that case, that authority was limited by the requirement “that the documents be germane to the issues and not subject to privilege”: Thomson, at p. 613, quoting with approval Marceau J. in Canada (Director Of Investigation and Research) v. Can. (Restrictive Trade Practices Comm), (1985), 1985 CanLII 3143 (FCA), 18 D.L.R. (4th) 750 (Fed. C.A.), at p. 63. He continued on p. 613 of Thomson to explain: “In order to comply with this duty, the Director must disclose the purpose of the inquiry in sufficient detail to enable the persons affected and the court to determine whether the documents are relevant to the issue. Anything less would enable the Director to embark on pure a fishing expedition.” L'Heureux-Dubé J., who, unlike Sopinka J., found that s. 8 of the Charter was engaged, expressed agreement with Sopinka J. that “a judge sitting in review has significant powers which at least prevent the orders to be used in a ‘fishing expedition’”: Thomson, at p. 595. A review could not prevent a “fishing expedition” without a critical assessment of the breadth of the production order to ensure that the documents to be seized are relevant to the matter being investigated. L'Heureux-Dubé J. can be taken as agreeing with La Forest J. that s. 8 imposes a relevance requirement even in regulatory cases. In my view, the relevance requirement that La Forest J. articulated is the lowest common denominator in the Thomson decision, and therefore represents the law. Even in the regulatory context, “The material sought must be relevant to the inquiry in progress.” See Thomson, at p. 530. It will not be if the demands made in the subpoena are broader than needed for the purposes of that inquiry.
[91] In support of its position that s. 13 is not subject to a relevance limitation, the Commission relied upon the broad language of s. 13, which does not reference relevance. It also submitted that in McKinlay Transport Ltd., the Supreme Court upheld a similar provision in s. 231(3) of the Income Tax Act, R.S.C. 1952, c. 148, which like s. 13 of the Securities Act, contained no relevance limitation. In my view, the Commission misreads McKinlay Transport Ltd. That decision, in fact strongly supports the approach that La Forest J. took in Thomson. As Wilson J. noted in McKinlay Transport Ltd., prior case law, including at the Supreme Court, had used ordinary principles of statutory interpretation to read down s. 231(3) (which was every bit as broadly worded as s. 13 of the Securities Act). As a result, the authority to order production of documents and information under that provision could be used only in circumstances where, examined objectively, production was for a purpose authorized under the Income Tax Act, and the information demanded was relevant to the tax liability of the person or persons whose liability was under investigation: McKinlay Transport Ltd., at pp. 639-40. Three things are noteworthy about this. First, these are the same essential relevance considerations that La Forest J. endorsed as constitutionally required in Thomson. Second, these requirements are so self-evident as reasonable limitations on any power to demand production that they were imposed on s. 231(3), even without Charter analysis, notwithstanding the breadth of the language of s. 231(3). And third, and most importantly, s. 231(3) was upheld as constitutionally valid only after Wilson J. emphasized that it satisfied this relevance requirement. When she posed the issue before the court, Wilson J. asked whether s. 231(3), which was already “narrowed in scope as a result of the common law rules relating to statutory interpretation”, could withstand Charter scrutiny: McKinlay Transport Ltd., at p. 640.
[92] Apropos of this last point, when Wilson J. explained why she was upholding s. 231(3) as against the Charter challenge she said, at p. 648, that the Minister “must be given broad powers in supervising this regulatory scheme to audit taxpayers’ returns and inspect all records which may be relevant to the preparation of these [tax] returns” (emphasis added). In explaining why s. 231(3) was “the least intrusive means by which effective monitoring of compliance with the Income Tax Act can be effected”, she added, “[i]t simply calls for the production of records which may be relevant to the filing of an income tax return” (emphasis added): McKinlay Transport Ltd., at pp. 649-50. It is evident that when she spoke of documents that “may be relevant”, Wilson J. was not endorsing a fishing expedition to examine all documents the taxpayer controls in the hope of uncovering something that could happen to prove relevant. She was no doubt proceeding on the understanding that the legislation required the production only of those documents for which there is a basis to believe may be relevant to the preparation of the tax returns under investigation.
[93] I am therefore persuaded that the s. 8 challenge to s. 231(3) of the Income Tax Act in McKinlay Transport Ltd. failed only because, as interpreted, that provision already limited production to documents that may have been relevant to the compliance investigation based on the same considerations that La Forest J. expressed as constitutional requirements in Thomson.
[94] I have reviewed the authority the Commission relies upon to the contrary. It does not support its position that the power to demand production under s. 13 is not limited by a relevance requirement. British Columbia (Securities Commission) v. Stallwood, (1995), 1995 CanLII 1515 (BC SC), 7 B.C.L.R. (3d) 339 (B.C. Sup. Ct.), did not involve a production order but instead involved challenges to subpoenas compelling witnesses to testify in an investigation ordered by the securities regulator. The Court did not reject a relevance inquiry when it rejected the petitioners’ submissions that the regulator in that case had an obligation to minimize or restrict the investigation it was undertaking. It noted instead that the effect of the “Investigating Order setting out the scope of the investigation” was to define “what is relevant”: Smallwood, at para. 32. In effect, in the context of a subpoena or order to testify, it is sufficient that the regulator identify what is being investigated, and to give direction on the scope of the compelled testimony. But as La Forest J. made clear in Thomson, at p. 532, when it comes to the production of documents, there are two components to a necessary relevance inquiry. The first component is that “the subpoena must be sufficiently clear and specific to inform the subpoenaed party of precisely what documents are being demanded” and the second component is that “the subpoena must only be as broad as is necessary for the purposes of the inquiry in progress.” This case, of course, involves a challenge to the breadth of a production order made by way of a Summons that makes wholesale demands for documents, whether there is any reason to believe they may be necessary for the purpose of the inquiry in progress or not. The Smallwood case is not instructive.
[95] The decision in North America Frac Stand. Inc. (Re), 2020 ABASC 40, does not reject a relevance inquiry, either. There the Alberta Securities Commission upheld what commission staff admitted was a broad demand for production only after the regulated party did not comply with an earlier demand to provide relevant business emails, making the demand for broader production appropriate: at para. 63. I need not express my views on this decision. The instant point is that it does not support the proposition advanced by the Commission.
[96] In my view, the relevance requirement described by La Forest J. in Thomson is constitutionally required for most regulatory seizures, as a matter of principle. This is because the authority to demand production of documents, even in a regulatory setting, represents an imposing exercise of state authority, regardless of how low the reasonable expectation of privacy may be. Moreover, the power to demand production is conferred for a purpose. Speaking of the equivalent power to summons documents in British Columbia securities legislation in Branch, Sopinka and Iacobacci JJ. commented that, “the predominant purpose of the inquiry is to obtain the relevant evidence for the purpose of the instant proceedings”: para. 35. It only stands to reason that to be reasonable, a seizure must be related to the purpose for which the power of compulsion was created, and that if there is no realistic foundation for believing the target documents will be relevant to that inquiry, the seizure is not needed to facilitate a proper inquiry and is improper.
[97] I also note that the power of the investigator to issue a summons under s. 13 of the Securities Act is the same power that is vested in the Superior Court of Justice by r. 53.04 of the Rules of Civil Procedure “for the trial of civil actions”. Rule 53.04(1) empowers witnesses who are compelled to the trial of civil actions to produce “documents or other things in [their] possession, control, or power relating to the matters in question”. A document that is not relevant to the proceeding does not relate to the matters in question. A subpoena can be quashed if it demands the production of documents that the party issuing the subpoena cannot show to be relevant: Ramos v. Ontario (Independent Police Review, Director), 2012 ONSC 7347 (Div. Ct.), at para. 18. This not only underscores the fundamental nature of the relevance requirement but also illustrates that a summons demanding information that the Commission has no basis to believe may be relevant is not authorized by law and would contravene s. 8.
[98] I hearken back to Wilson’ J.s conclusion that what is reasonable “depends upon consideration of what is sought, from whom, for what purpose, by whom, and in what circumstances”: McKinlay Transport Ltd., at p. 646. I cannot conceive that it would be reasonable for the Commission to demand an overbroad array of documents to enable it to conduct a fishing expedition of the entire business in a speculative search for documents where there is no reasoned basis for believing that they may be relevant to the inquiry that is being undertaken.
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(3) Was the discretion to issue the Summons exercised reasonably?
[114] Binance argues that Doré governs since the investigator’s statutory discretion to issue the Summons implicated its s. 8 Charter rights. It submits that pursuant to Doré the investigator was therefore required to consider proportionality and to balance the relevant Charter values before issuing the Summons. It argues that since the Commission failed to show that the investigator undertook to complete the required balancing of Binance’s privacy interests as against the Commission’s investigatory objectives the issuance of the Summons must be found to be unreasonable. The Commission argues, to the contrary, that Doré does not apply because Binance has not established that the seizure required by the Summons constituted an unreasonable seizure, and even it if did, the decision to issue the Summons was proportionate.
[115] I agree with the Commission that the Doré test does not apply in the first place, but not for the reasons given by the Commission. The Commission misconceives the Doré test. Doré does not require a finding that a Charter right is infringed before it applies. As Côté J. explained in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 65, “it has consistently been held that the Doré framework applies not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights” (emphasis in original). Since Binance had a reasonable expectation of privacy, the issuance of the Summons to seize those documents clearly implicated Binance’s Charter rights.
[116] I nonetheless agree with the Commission’s bottom line argument that the Doré test does not apply. In my view, the issues before us are not governed by the Doré test but by the legal standards established under s. 8 of the Charter, which provide a dedicated methodology for assessing the constitutional validity of searches and seizures. This s. 8 jurisprudence already balances competing interests and addresses the proportionality issue through its assessment of the intensity of the reasonable expectation of privacy and its relevance inquiry. I do not understand Doré to have overtaken this body of law by substituting a looser deferential examination of the proportionality of the balance that has been achieved between the Charter implications of the discretionary decision to exercise the power of search and seizure and the competing administrative interests. In my view, any state agent who authorizes or exercises a search or seizure is bound to comply correctly with the requirements of s. 8 of the Charter, even when exercising a statutory discretion. It would not be fitting to hold that even though the s. 8 requirements have not been met, it was reasonable for the party authorizing the seizure to strike the balance they did. The Doré standards add nothing to the instant case and can only confuse the law if applied in this context.
[117] My views in this regard are assisted by the majority decision in York Region. This case involved the judicial review of a grievance arbitration decision that raised s. 8 issues. The majority did not resort to the Doré test in reviewing that decision. It applied a correctness standard based on the requirements of s. 8 of the Charter. Since the arbitrator erred in law in concluding that Charter rights did not apply to a search of a teacher’s computer conducted by a public-school principal, and the decision of a school superintendent to seize a document, the decision was set aside.
[118] I would therefore dismiss this ground of appeal. . Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Ont CA, 2025) the Ontario Court of Appeal allowed joined appeals, here brought against investigative administrative "summons demanding the production of documents and, depending on how the summons is interpreted, responses to interrogatories (“information”) from Binance about its operations ...".
Here the court considers an appeal from a denial "to set aside the denial of the stay pending judicial review", this where the order in question was an administrative investigative summons:[54] The decision in Hunter v. Southam Inc. imposes a prima facie warrant requirement in criminal cases, requiring reasonable searches or seizures to be judicially authorized in advance. The parties agree that this requirement does not generally apply in regulatory cases, including in this case. However, Binance argues that in regulatory cases s. 8 includes a lesser, related “right to a reasonable opportunity to challenge a regulatory production demand” before being required to comply with it. It argues that the Divisional Court erred in denying its motion to set aside Leiper J.’s decision not to stay the Summons pending judicial review without recognizing this right.
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[58] The decision that Binance relies upon most heavily in advancing its claimed constitutional right is Thomson, which addressed the constitutional validity of s. 17(1) of the Combines Investigation Act, R.S.C. 1970, c. C-23 (now the Competition Act), which authorized the Restrictive Trade Practice Commission to order the production of documents during an investigation. Specifically, Thomson considered the impact that s. 17(3) of the Act had on the constitutionality of s. 17(1). Although, by its terms, s. 17(3) operated by preventing a party from being punished for non-compliance with a s. 17(1) order, Wilson J. also characterized s. 17(3) as an opportunity to “challenge the validity of the order before producing the documents”: Thomson, at pp. 492-93, 495. I will therefore treat Thomson as an authority addressing the role that a right to challenge a production order before compliance plays in the s. 8 analysis.
[59] Although there was variation in the approaches taken by members of the panel in Thomson with respect to this role, in Goodwin, Karakatsanis J. cited Thomson before explaining that “the availability of judicial supervision” is one of certain “considerations that may be helpful in the reasonableness analysis”: Goodwin, at para. 57. It follows that Karakatsanis J. did not interpret Thomson as holding that there is a constitutional right in regulatory cases to judicial supervision before compliance with orders to produce documents.
[60] This reading of Thomson is entirely consistent with the analysis undertaken by a plurality of three of the five judges who decided the case, namely Wilson, Lamer, and L'Heureux-Dubé JJ. Wilson J. stated, “The fact that an individual can challenge the validity of the order before producing the documents goes, in my opinion, not to the question whether a seizure has occurred but to the question of whether the seizure is a reasonable one.” See Thomson, at p. 495. Lamer J. expressed agreement with Wilson J.’s s. 8 analysis: Thomson, at p. 442. And L'Heureux-Dubé J. also addressed the role that s. 17(3) played in “[a]ssessing the reasonableness of the invasion of privacy resulting from [a s. 17(1) order]”, describing it as “a safeguard”: Thomson, at pp. 593, 595. In my view, each of these judges therefore accepted that the availability of judicial review before compliance is a relevant factor in a s. 8 analysis but did not find it to be a free-standing constitutional right.
[61] The positions taken by the remaining two judges in Thomson are nuanced, and when read carefully do not support the proposition that pre-compliance judicial supervision is a constitutional requirement. La Forest J. comes the closest to finding that it is a constitutional right, given that he referred to the opportunity to challenge a s. 17(1) order by judicial review as “an adequate guarantee against potential abuse of power”: Thomson, at p. 535. But La Forest J. did not address at what point the opportunity to challenge an order by judicial review must occur, or what form it must take. For his part, Sopinka J. found that the availability of oversight through s. 17(3) prevented the production order made under s. 17(1) from qualifying as a seizure within the meaning of s. 8: Thomson, at pp. 614-15. There was therefore no room for him to consider whether judicial oversight is a constitutional right, and his decision cannot fairly be read as supporting the proposition that it is. In any event, since three of five judges in Thomson treated the absence of judicial review as no more than a factor in assessing reasonableness rather than a right, the Thomson decision does not recognize the right that Binance claims.
[62] In my view, the remaining cases relied upon by Binance do not support the proposition that Binance advances either. None of them proclaim a constitutional right to judicial oversight before compliance, and all treat it instead as a factor in assessing the reasonableness of the seizure in the case at hand: see, Bogaerts v. Ontario (Attorney General), 2019 ONCA 876, 448 C.R.R. (2d) 1, at para. 42; Law Society of Alberta v. Sidhu, 2017 ABCA 224, 413 D.L.R. (4th), at para. 25; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182, 498 D.L.R. (4th) 504, leave to appeal refused [2025] S.C.C.A. No. 28, at paras. 126, 128.
[63] I am therefore persuaded that there is no freestanding constitutional right to challenge a regulatory production order. Judicial oversight is simply a consideration, albeit an important one, in determining whether a search is reasonable when a s. 8 challenge is being undertaken.
[64] In my view, this conclusion completely undercuts Binance’s submission that the Divisional Court was obliged to consider the set aside motion on its merits because Leiper J. “failed to recognize or give effect to the right under s. 8 of the Charter to challenge a regulatory production demand prior to being required to comply with it.” Since there is no such right, Leiper J. did not err by failing to recognize that right and the Divisional Court did not err by failing to identify Leiper J.’s “error” through consideration of the set aside motion on its merits.
[65] Similarly, since no such “right” exists, the “required balancing” that Binance claims the Divisional Court failed to consider was not “required”.
[66] I would dismiss this ground of appeal. . Binance Holdings Limited v. Ontario Securities Commission [Charter s.8 administrative]
In Binance Holdings Limited v. Ontario Securities Commission (Ont CA, 2025) the Ontario Court of Appeal allowed joined appeals, here brought against investigative administrative "summons demanding the production of documents and, depending on how the summons is interpreted, responses to interrogatories (“information”) from Binance about its operations ...".
Here the court considers Charter s.8 privacy ['search and seizure'] in this administrative business records context:[32] Section 8 of the Charter applies if state agents undertake a “search” or “seizure” in circumstances that compromise the reasonable expectation of privacy of the Charter claimant: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60. It is settled law that an enforceable demand for production of business records made by state agents is a “seizure” within the meaning of s. 8: British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, at paras. 59-60. It is also settled law that the holder of business records such as Binance has a reasonable expectation of privacy in the business records that are targeted by the seizure, but that this reasonable expectation of privacy is low: Branch, at para. 62.
[33] There are several reasons why Binance has only a low expectation of privacy in business records that are being compelled by a production order of the Commission, a securities regulator.
[34] First, it is widely known to those involved in trading securities that the business is closely regulated to secure investor protection, market efficiency and public confidence in the financial system: Branch, at para. 54.
[35] Second, business records tend to attract a diminished degree of privacy because they do not normally “deal with those aspects of individual identity which the right of privacy is intended to protect”: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 517-18.
[36] Third, in the context of securities trading, in order to enforce compliance with regulation, investigators need the ability to demand production of business records, even without reasonable and probable grounds or reasonable suspicion: Branch, at para. 53. And finally, the compelled production of documents is a significantly less intrusive means of obtaining documentary evidence than other alternatives: Thomson, at p. 594.
[37] As low as that expectation is, it does not mean that Binance has “no expectation of privacy” in the context of a seizure of its business records through a production order, or that “there is no limitation to the potential scope of an order to produce documents which can be validly issued”: Thomson, at p. 530. Even where there is a “very low expectation of privacy”, the ability of regulators to compel the production of documents and information is limited to terms that are fair and reasonable, because “[t]hat is what s. 8 of the Charter is all about”: A.D. Reid and A.H. Young, “Administrative Search and Seizure Under the Charter” (1985) 10 Queen’s L.J. 392, at pp. 398-400, cited with approval in R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627, at p. 646, per Wilson J.
[38] Binance’s s. 8 rights are therefore engaged by the compelled production of its business documents by the Commission through the Summons that is being challenged.
[39] I reject Binance’s supplementary claim that its reasonable expectation of privacy is heightened in this case because the demand in the Summons includes chats and texts on social media platforms which may include personal messages sent or received using these platforms. It is true that there is a higher reasonable expectation of privacy in personal documents; however, Binance has done nothing to show that any such personal messages were sent or received. Its claim that they were is a bald assertion. Moreover, I agree with the Commission that a regulated party cannot be permitted to increase the intensity of its expectation of privacy in its business platforms by allowing them to be used for personal purposes.
[40] In summary, Binance is entitled to rely upon s. 8 of the Charter to protect the modest but reasonable expectation of privacy it has in its business documents from unreasonable seizure. In general terms, s. 8 requires that: (1) the search or seizure must be authorized by law; (2) the law itself must be reasonable, and (3) the search or seizure must be carried out in a reasonable manner: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 48. It is trite law that the criminal law standards for a reasonable search or seizure identified in Hunter v. Southam Inc., “will not usually be the appropriate standard for a determination made in an administrative or regulatory context”: Branch, at para. 52. This is primarily because of the lower expectations of privacy that operate in the regulatory context, and it is particularly true in the case of production orders for documents, which are far less intrusive than searches and seizures performed directly by state agents: Branch, at paras. 58, 60-61.
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