Court File No. M 9-11/12
SUPERIOR COURT OF JUSTICE
(Toronto Region)

B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
ON BEHALF OF
THE UNITED STATES OF AMERICA
Applicant
(Moving Party on Motion for Directions)
and
EQUINIX INC.
Respondent
and
MEGAUPLOAD INC.
(Responding Party on Motion)

_______________________________________________________________
FACTUM RE: MOTION FOR DIRECTIONS
(RETURNABLE APRIL 13, 2015)
_______________________________________________________________

Moiz Rahman
Counsel for the Attorney General of Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6
Tel: (416) 952-6214
Fax: (416) 973-4328
Moiz.Rahman@justice.gc.ca

 Court File No. M 9-11/12
SUPERIOR COURT OF JUSTICE
(Toronto Region)

B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
ON BEHALF OF
THE UNITED STATES OF AMERICA
Applicant
(Moving Party on Motion for Directions)
and
EQUINIX INC.
Respondent
and
MEGAUPLOAD INC.
(Responding Party on Motion)

_______________________________________________________________
FACTUM RE: MOTION FOR DIRECTIONS
_______________________________________________________________

PART I – STATEMENT OF THE CASE
A. OVERVIEW
1.

The Attorney General of Canada applies to this Court for an order permitting a

“clean team” of American investigators to examine thirty-two lawfully seized computer
servers, and for directions on the scope of relevant material that may be “brought”
before the Court.

 2
2.

The computer servers were lawfully seized pursuant to a warrant issued under

the Mutual Legal Assistance in Criminal Matters Act (the “Act”). The servers have not
yet been forensically examined.
3.

On January 7, 2013, Pardu J. (as she then was) heard an application to send

the servers to the United States. In reasons dated January 13, 2013, Her Honour
neither allowed nor dismissed the sending application. Rather, she adjourned the
application and ordered that the servers could be brought before the Court (virtually, not
physically) pursuant to s. 15(2) of the Act. She further held that if the parties could not
agree on how the scope of relevant material should be defined, the matter could be
brought back before the Court to have the issue determined.
4.

This application arises from Pardu J.’s endorsement permitting the parties to

have that issue determined by this Court.
5.

The Attorney General of Canada requests that this Court permit the servers to

be examined by a “clean team” of American investigators and to allow the team to
prepare a report for this Court outlining the data that is stored on the servers. This
approach is the best way to give effect to Canada’s international obligations while
balancing any privacy interests in the data, and the requirement that evidence not be
sent prematurely to the United States.

 3

PART II – SUMMARY OF THE FACTS
A. PROCEDURAL HISTORY1
The Search Warrant
6.

On January 18, 2012, Cpl. Daniel Raymond, a peace officer with the RCMP,

swore an affidavit in support of an application for a search warrant pursuant to sections
11 and 12 of the Act.2

McMahon J. granted the application and issued a search

warrant.3
7.

The warrant authorized the RCMP to enter the premises of Equinix Inc. at 151

Front Street West, Toronto, Ontario on January 19, 2012, to conduct a search and to
seize thirty-two computer servers labelled sequentially as “mega-yyz-1001” through to
and including “mega-yyz-1032” (the servers).4 The seized servers are owned by
Carpathia Hosting Inc. and leased by Megaupload. The United States seeks the data
housed on the servers for its investigation and prosecution of the Mega conspiracy.5

1

In this part of the factum, reference will be made to two application records previously filed with this
Court. The “Application Record (Search Warrant)” is the application record filed by the Attorney General
of Canada ex parte to obtain the search warrant. It is a blue bound volume with numerical tabs 1-3 and
alphabetical tabs A-E under Tab 2. The “Application Record (Sending Order)” is the blue bound volume
with a notice of application dated January 26, 2012 under Tab 1. It contains numerical tabs 1-4 and
alphabetical A-B under Tab 2 and A under Tab 3.
2 Affidavit of Cpl. Raymond, Application Record (Search Warrant), Tab 2.
3 Affidavit of Katherine Dalton Exhibit “A” (“Warrant to Search”), Application Record (Sending Order) Tab
2A.
4 Ibid.
5 Affidavit of Cpl. Raymond, Application Record (Search Warrant), Tab 2 para 36.

 4
8.

On January 19, 2012 the warrant was executed and the servers were seized. 6

The search was part of a co-ordinated takedown that occurred on January 19, 2012
involving multiple searches, seizures and arrests in various countries.7
The Sending Application
9.

The Attorney General of Canada brought an application to send mirror-imaged

copies of the data on the thirty-two computer servers to the United States pursuant to s.
15 of the Act. The sending application included a report to the judge dated February 7,
2012 prepared by Cpl. Daniel Raymond of the RCMP, required by s. 14 of the Act. Cpl.
Raymond’s report sets out the manner in which the search warrant was executed as
well as the items seized.8
10.

Notice of the sending application was sent to Megaupload as well as Equinix

and Carpathia Hosting on February 1st, 2012.9
11.

The sending application commenced before Pardu J. on January 7, 2013. The

Attorney General requested that mirror-imaged copies of all thirty-two seized servers be
sent to the United States. The respondent, Megaupload, took the position that such a
sending order would be overly broad because of the enormity of the data contained on
the servers. Megaupload submitted in the alternative that this Court should make an

6

Report to the Judge, Application Record (Sending Order) Tab 3.
Affidavit of Cpl. Raymond paragraph 41, Application Record (Search Warrant) Tab 2.
8 Application Record (Sending Order).
9 Affidavit of Katherine Dalton paragraph 7, Exhibit “B”, Application Record (Sending Order), Tabs 2 and
2B.
7

 5
order compelling the seized servers to be brought before the Court, pursuant to s. 15(2)
of the Act, in the form of a report by an independent forensic examiner.10
12.

Pardu J. ruled that an order that the servers be brought before the court

pursuant to s. 15(2) would strike the appropriate balance between the state interest in
gathering the evidence and any privacy interests in the information stored on the
servers. Her Honour adjourned the sending application sine die, returnable on 7 days
notice. Pardu J. also held that if counsel were unable to agree on how the scope of
relevant material would be defined, the matter may be brought back to be determined
before a judge of this Court.11

B. THE CLEAN TEAM PROPOSAL
13.

In order to virtually “bring” the servers before this Court in accordance with

Pardu J.’s endorsement, American authorities have offered to send a so-called “clean
team” to Canada to review the data on the servers and prepare a report for the Court.
The clean team would be comprised of FBI-trained personnel who have had no
involvement in the case for which the evidence is being sought. The clean team’s job
would be to provide a written summary of the evidence to describe whether and to what
extent evidence on the servers is relevant to the charges being prosecuted in the United
States. U.S. authorities routinely use clean teams to review evidence that contains
privileged information.12

10

Endorsement of Pardu J., Application Record (April 13, 2015), Tab 3.
Endorsement of Pardu J., Application Record (April 13, 2015), Tab 3 at para. 16.
12 “Letter from Mary Ellen Warlow, United States Department of Justice,” Exhibit “A” to the Affidavit of
Lynne Axmith, Application Record (April 13, 2015), Tab 2A.
11

 6
14.

Most importantly, the work of the clean team would be subject to a number of

safeguards, including the following:13
a. Members of the clean team will not reveal any information to the U.S.
investigating or prosecuting authorities without a prior order of this Court.
b. The clean team will conduct its review in Canada in a secure facility under
supervision by the RCMP.
c. The clean team will not keep copies of any data gathered during the
search, except for those materials provided to the Court.
d. A representative of the respondent, Megaupload, may observe the review.
e. The clean team will use methods to protect the data on the servers from
being altered.

PART III – ISSUES AND THE LAW
A. THE CLEAN TEAM SHOULD BE PERMITTED TO PREPARE A REPORT
15.

The proposal that a so-called “clean team” of American investigators be

permitted to review data on the servers to prepare a report is reasonable.

The

involvement of foreign investigators is not inconsistent with the Act, the Treaty, or the
Charter. As the Court of Appeal observed in Canada v. Foster,14 the involvement of an
agent of the requesting state in examining evidence is reasonable, provided suitable

13

Affidavit of Lynne Axmith, Application Record (April 13, 2015) Tab 2 para 9 (p.4) (summarizing Exhibit
“A”).
14 Canada v. Foster, [2006] O.J. No. 4608; 217 O.A.C. 173

 7
safeguards are put in place to ensure that evidence is not sent to the requesting state
without judicial authorization.
45 I should not be taken as questioning the correctness of those authorities. The
fact remains that s. 18 is worded differently than the search warrant provision
and both it and the Treaty involved in this case (namely, Treaty between the
Government of Canada and the Government of the Republic of France on Mutual
Assistance in Penal Matters, 15 December, 1989, Can. T.S. 1991 No. 34)
specifically contemplate the involvement of foreign authorities in the gathering of
evidence. Article 5(3) of the Treaty provides that authorities of the requesting
state can be present at any hearing of witnesses and can conduct examinations
of the witnesses. This is consistent with other parts of s. 18, which contemplate
that the examinations may be conducted before a judge of a foreign court. See
for example s. 18(8)(a), which provides that if the person designated under s.
(2)(c) is a judge of a foreign court, the judge may make immediate rulings. The
examination conducted by M. Perrault was not an evidentiary hearing in that
sense and therefore is not expressly within the terms of the Treaty. However,
given these provisions of the Treaty and the Act, having an agent4 of the
requesting state present at and conducting the kind of examination that was
carried out by M. Perrault is not inconsistent with the Treaty or the Act, so long as
suitable safeguards are put in place to ensure that the evidence is not sent to the
requesting state without judicial authorization.15 [emphasis added]

16.

Although Rosenberg J.A. specifically directed his comments to evidence-

gathering orders,16 his comments apply with equal force to the current circumstances in
the case at bar. This is not a request to have agents of the foreign state help execute a
search warrant and seize items. Now that the servers have been lawfully seized, they
are in the same position as evidence produced under an evidence-gathering order. The
evidence is in possession of Canadian authorities and is capable of being examined.
Unlike Foster, the foreign state agents who would be involved here would be
unconnected with the investigation and would be performing a very limited analysis of
data.

15

Foster, supra at para 45.
It should be mentioned that the authorities whose correctness Rosenberg J.A. says he does not
question all disapproved of the involvement of foreign officials during the execution of search warrants:
see U.S.A. v. Schneider, [2002] B.C.J. No. 1561 (S.C.); Germany v. Ebke, 2001 NWTSC 52; U.S.A v.
Orphanou, [2004] O.J. No. 622 (Sup. Ct.).
16

 8
17.

Indeed, in light of the Supreme Court’s recent approval of foreign information

sharing in Wakeling v. U.S.A.,17 the clean team’s proposed exposure to data on the
servers is extremely limited. In Wakeling, a four-member majority of the court (on this
issue) held that the common law permitted Canadian authorities to share evidence,
including the content of wiretaps, with foreign law enforcement officials.18 If the sharing
of wiretaps with foreign law enforcement agencies is constitutional, the proposed
examination of the servers by a clean team, subject to suitable safeguards, is
constitutional and reasonable.19
18.

Finally, permitting the very limited involvement of American officials furthers the

objectives of the mutual legal assistance scheme, which is honour Canada’s internation
obligations and foster inter-jurisdictional investigative cooperation.

As the Court of

Appeal noted in U.S.A. v. Price:
17 I also agree that it would be inappropriate, as a matter of policy, to
adopt an interpretation of s. 15(1) that would require the judge to take a
purely mechanical approach and refuse a sending order for every minor or
trivial failure in the execution of the warrant. In the domestic context, we
do not take that approach when deciding whether or not to exclude
evidence under s. 24(2) of the Charter. To apply a higher standard under
the Act would hardly advance its purpose and object. That purpose was
described by Doherty J.A. in Russian Federation v. Pokidyshev (1999),
138 C.C.C. (3d) 321 at para. 15 (Ont. C.A.) as being to ensure Canada is
able to assist in combating the problem of international crime and to fulfil
our "international obligations under various treaties and conventions to
assist other states in the investigation and detection of [international]
crime". This assessment of the purpose of the Act was reiterated by
17

Wakeling v. U.S.A., 2014 SCC 72
The Chief Justice held (at para 97) that the common law, not the Criminal Code, authorized disclosure
of wiretap evidence to foreign law enforcement agencies. Moldaver J., writing for three members of the
court, agreed with the Chief Justice (at para 29) that the common law provided authority to disclose the
fruits of lawful search to foreign law enforcement agencies.
19 The very limited observation of evidence by the clean team is also less intrusive than the provision of a
list of items seized pursuant to a Canadian search warrant to American authorities: see Re MacFarlane,
[1995] O.J. No. 4619 (Gen. Div.).
18

 9
Rosenberg J.A. in R. v. Budd (2000), 150 C.C.C. (3d) 108 at para. 28
(Ont. C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 57,
referring to "the need to ensure that Canada's international obligations are
honoured and [the need] to foster cooperation between investigative
authorities in different jurisdictions" when interpreting and applying s. 15.20

19.

The Attorney General submits that the safeguards proposed by American

authorities are suitable and further the objectives of the Act and Treaty and Canada’s
obligation to honour its international obligations.

PART IV – ORDER REQUESTED
20.

The Attorney General of Canada requests that the application to permit an

American “clean team” to review the data contained on the seized servers for the
purpose of providing a report to this Court should be allowed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 8th day of April, 2015.

____________________________________
Moiz Rahman
Counsel for the Attorney General of Canada

20

U.S.A. v. Price, 2007 ONCA 526 at para 17..

 10

SCHEDULE A – AUTHORITIES TO BE CITED
Canada v. Foster, [2006] O.J. No. 4608; 217 O.A.C. 173
U.S.A. v. Orphanou, [2004] O .J. No. 622 (Sup. Ct.)
Germany v. Ebke, 2001 NWTSC 52
Wakeling v. U.S.A., 2014 SCC 72
Re MacFarlane, [1995] O.J. No. 4619 (Gen. Div.)
U.S.A. v. Price, 2007 ONCA 526

 11

SCHEDULE B – RELEVANT LEGISLATIVE PROVISIONS
Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.)
11. (1) When the Minister approves a request of a state or entity to have a search
or a seizure, or the use of any device or investigative technique or other procedure or
the doing of any other thing to be described in a warrant, carried out regarding an
offence, the Minister shall provide a competent authority with any documents or
information necessary to apply for a search warrant or other warrant.
(2) The competent authority who is provided with the documents or information shall
apply ex parte for a search warrant or other warrant to a judge of the province in which
the competent authority believes that evidence may be found.
12. (1) A judge of a province to whom an application is made under subsection
11(2) may issue a search warrant authorizing a peace officer named therein to execute
it anywhere in the province, where the judge is satisfied by statements under oath that
there are reasonable grounds to believe that
o

(a) an offence has been committed;

o

(b) evidence of the commission of the offence or information that may
reveal the whereabouts of a person who is suspected of having committed the
offence will be found in a building, receptacle or place in the province; and

o

(c) it would not, in the circumstances, be appropriate to make an order
under subsection 18(1).

(2) A judge who issues a search warrant under subsection (1) may subject the
execution of the warrant to any conditions that the judge considers desirable, including
conditions relating to the time or manner of its execution.
(3) A judge who issues a search warrant under subsection (1) shall fix a time and
place for a hearing to consider the execution of the warrant as well as the report of the
peace officer concerning its execution.
(4) A search warrant issued under subsection (1) may be in Form 5 in Part XXVIII of
the Criminal Code, varied to suit the case, and must
(a) set out the time and place for the hearing mentioned in subsection (3);
(b) state that, at that hearing, an order will be sought for the sending to the state or
entity of the records or things seized in execution of the warrant; and

 12
(c) state that every person from whom a record or thing is seized in execution of the
warrant and any person who claims to have an interest in a record or thing so seized
has the right to make representations at the hearing before any order is made
concerning the record or thing.
(5) A peace officer who executes a search warrant issued under subsection (1)
shall, before entering the place or premises to be searched or as soon as practicable
thereafter, give a copy of the warrant to any person who is present and appears to be in
charge of the place or premises.
(6) A peace officer who, in any unoccupied place or premises, executes a search
warrant issued under subsection (1) shall, on entering the place or premises or as soon
as practicable thereafter, cause a copy of the warrant to be affixed in a prominent place
within the place or premises.
14. (1) A peace officer who executes a warrant issued under section 12 shall, at
least five days before the time of the hearing to consider its execution, file with the court
of which the judge who issued the warrant is a member a written report concerning the
execution of the warrant and including a general description of the records or things
seized, other than a thing seized under section 13.
(2) The peace officer shall send a copy of the report to the Minister forthwith after its
filing.
15. (1) At the hearing to consider the execution of a warrant issued under section
12, after having considered any representations of the Minister, the competent authority,
the person from whom a record or thing was seized in execution of the warrant and any
person who claims to have an interest in the record or thing so seized, the judge who
issued the warrant or another judge of the same court may
o

(a) where the judge is not satisfied that the warrant was executed
according to its terms and conditions or where the judge is satisfied that an order
should not be made under paragraph (b), order that a record or thing seized in
execution of the warrant be returned to
(i) the person from whom it was seized, if possession of it by that
person is lawful, or
(ii) the lawful owner or the person who is lawfully entitled to its
possession, if the owner or that person is known and possession of the record or
thing by the person from whom it was seized is unlawful; or

o

(b) in any other case, order that a record or thing seized in execution of
the warrant be sent to the state or entity mentioned in subsection 11(1) and include
in the order any terms and conditions that the judge considers desirable, including
terms and conditions

 13
(i) necessary to give effect to the request mentioned in that
subsection,
(ii) with respect to the preservation and return to Canada of any
record or thing seized, and
(iii) with respect to the protection of the interests of third parties.
(2) At the hearing mentioned in subsection (1), the judge may require that a record
or thing seized in execution of the warrant be brought before him.
18. (1) A judge to whom an application is made under subsection 17(2) may
make an order for the gathering of evidence, where he is satisfied that there are
reasonable grounds to believe that
o
o

(a) an offence has been committed; and
(b) evidence of the commission of the offence or information that may
reveal the whereabouts of a person who is suspected of having committed the
offence will be found in Canada.

(2) An order made under subsection (1) must provide for the manner in which the
evidence is to be obtained in order to give effect to the request mentioned in subsection
17(1) and may
o

(a) order the examination, on oath or otherwise, of a person named
therein, order the person to attend at the place fixed by the person designated under
paragraph (c) for the examination and to remain in attendance until he is excused by
the person so designated, order the person so named, where appropriate, to make a
copy of a record or to make a record from data and to bring the copy or record with
him, and order the person so named to bring with him any record or thing in his
possession or control, in order to produce them to the person before whom the
examination takes place;

o

(b) order a person named therein to make a copy of a record or to make a
record from data and to produce the copy or record to the person designated under
paragraph (c), order the person to produce any record or thing in his possession or
control to the person so designated and provide, where appropriate, for any affidavit
or certificate that, pursuant to the request, is to accompany any copy, record or thing
so produced;

o

(c) designate a person before whom the examination referred to in
paragraph (a) is to take place or to whom the copies, records, things, affidavits and
certificates mentioned in paragraph (b) are to be produced; and

 14
o

(d) order a person named in it to answer any question and to produce any
record or thing to the person designated under paragraph (c) in accordance with the
laws of evidence and procedure in the state or entity that presented the request.

(3) For greater certainty, under paragraph (2)(c), a judge who makes an order under
subsection (1) may designate himself or herself — either alone or with another person,
including another judge — or may designate another person, including another judge.
(4) An order made under subsection (1) may be executed anywhere in Canada.
(5) An order made under subsection (1) may include any terms or conditions that
the judge considers desirable, including those relating to the protection of the interests
of the person named therein and of third parties.
(6) The judge who made the order under subsection (1) or another judge of the
same court may vary its terms and conditions.
(7) A person named in an order made under subsection (1) may refuse to answer
any question or to produce a record or thing to the person designated under paragraph
(2)(c) if
o

(a) answering the question or producing the record or thing would disclose
information that is protected by the Canadian law of non-disclosure of information or
privilege;

o

(b) requiring the person to answer the question or to produce the record or
thing would constitute a breach of a privilege recognized by a law in force in the
state or entity that presented the request; or

o

(c) answering the question or producing the record or thing would
constitute the commission by the person of an offence against a law in force in the
state or entity that presented the request.

(8) If a person refuses to answer a question or to produce a record or thing, the
person designated under paragraph (2)(c)
o

(a) may, if he or she is a judge of a Canadian or foreign court, make
immediate rulings on any objections or issues within his or her jurisdiction; or

o

(b) shall, in any other case, continue the examination and ask any other
question or request the production of any other record or thing mentioned in the
order.

(9) A person named in an order made under subsection (1) who, under subsection
(7), refuses to answer one or more questions or to produce certain records or things
shall, within seven days, give to the person designated under paragraph (2)(c), unless

 15
that person has already ruled on the objection under paragraph (8)(a), a detailed
statement in writing of the reasons on which the person bases the refusal to answer
each question that the person refuses to answer or to produce each record or thing that
the person refuses to produce.
(10) A person named in an order made under subsection (1) is entitled to be paid
the travel and living expenses to which the person would be entitled if the person were
required to attend as a witness before the judge who made the order.

 Court File No. M 9-11/12
SUPERIOR COURT OF JUSTICE
(Toronto Region)
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
ON BEHALF OF
THE UNITED STATES OF AMERICA

Applicant
and
EQUINIX INC.
Respondent
and

MEGAUPLOAD INC.
Respondent

FACTUM RE: MOTION FOR DIRECTIONS

Moiz Rahman
Counsel for the Attorney General of
Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
3400 - 130 King Street West
Toronto, Ontario M5X 1K6
Tel.: (416) 952-6214
Fax:(416)973-4328
Moiz.Rahman@justice.gc.ca