There is a popular misconception that searches by regulators who are seeking administrative monetary penalties (“AMPs”) are not subject to the Charter. Perhaps this misconception stems from the Guindon[1] line of cases that have held that AMPS do not qualify as offences under the Charter. This misconception becomes all the more important as the magnitude of recent AMPS has crept into the territory formerly occupied by criminal law.[2]
I. AMPs are not Offences: Guindon Strikes Back
The most recent example of “Guindon Strikes Back” is the decision of Justice Andrew Little of the Competition Tribunal in Commissioner of Competition and Google Canada Corporation and Google LLC.[3] Justice Little held that a potential AMP of $90 plus billion was hypothetical and the evidence did not show that an AMP for abuse of dominance would inherently “over-deter” or be punitive.[4] It was however recognised that Google could be exposed to a maximum AMP that is very significant in absolute dollar terms.[5] The Tribunal applied the four factor test in Guindon and held that Google had not met the “indisputably high bar” of the true penal consequences test and was not entitled to the procedural protections in section 11 of the Charter because if was not “charged with an offence” under the abuse of dominance provisions of the Competition Act.[6]
I have written elsewhere about my views of the constitutionality of AMPS, and that is not the purpose of this article.[7] My point here is that the jurisprudence that AMPs do not constitute offences may lead regulators and corporations to mistakenly think that when it comes to AMPs, there is a “Charter free zone”.
II. Section 8 rights against unreasonable search and seizure apply whether or not an offence is charged and encompasses administrative searches
What people may forget in the context of administrative searches, is the application of section 8 of the Charter that guarantees that “Everyone has the right to be secure against unreasonable search or seizure.” This right does not refer to the concept of “offences”. The right against unreasonable search and seizure applies to administrative searches.
The leading Supreme Court of Canada decision in the applicability of section 8 in the context of administrative regimes is Goodwin v. British Columbia (Superintendent of Motor Vehicles)[8] 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.[9]
The scheme at issue in Goodwin authorized police to conduct a warrantless search of a driver's breath using a portable breath device that purported to measure blood alcohol. Administrative sanctions involved licence suspensions up to 90 days, mandatory interlock devices, and $4,000 worth of fines and various penalties.
In a 6-1 decision (with McLachlin C.J.C. dissenting), the Supreme Court of Canada affirmed the Chambers Judge's decision (upheld by the BC Court of Appeal) that the legislation violated s. 8 of the Charter for failing to provide a sufficient review mechanism to review the reliability of the device, thereby capturing potentially innocent individuals.[10]
Section 8 of the Charter applies to procedures employed in enforcing AMPs. This is not a “Charter free zone”.
III. The latest word: Binance Holdings
The Ontario Court of Appeal has recently ruled in the case of Binance Holdings Limited v. Ontario Securities Commission[11] that a summons issued in the context of securities proceedings was unconstitutionally overbroad and constituted an unreasonable seizure.[12] In that case the summons sought matters such as “all communications” among a wide array of people without any limitations that would link the inquiry to relevant matters. Justice David Paciocco for the Court made the following general observation:
But there is no reason why regulators cannot target their inquiries to categories of documents that are reasonably likely to contain relevant documents or otherwise describe the scope of their inquiry in a way that would enable the regulated party and the courts to identify relevant documentation.[13]
(a) The wide scope of the summons in Binance Holdings
Binance Holdings Limited ("Binance") is a Cayman Islands corporation that operates an online crypto asset trading platform available to, and used by, thousands of Ontario investors. On March 29, 2021, the Ontario Securities Commission staff issued a general announcement that unregistered crypto asset trading platforms doing business in Ontario were required to contact the Commission to start compliance discussions. Binance, which claims to be the largest such platform in the world, did not do so, even though it had a significant presence in Ontario and was operating a trading platform accessible to Ontario residents without registering or securing an exemption under the Securities Act.
Binance then engaged in compliance discussions with Commission staff. Binance announced to its Ontario users, inaccurately, that it was now permitted to continue operating in Ontario thanks to its cooperation with securities regulators.[14] In response, Commission staff threatened to issue a cease trading order, but Binance provided an undertaking to the Commission promising to wind down its Ontario operations and to retain an independent third party to review the implementation of its commitments and to separately report to the Commission. Although steps were ultimately taken by Binance to deliver a third-party report via an audit plan that would identify the closed Ontario accounts, it refused to provide the third-party reviewer with access to its live database. Commission staff obtained an order from a commissioner, issued pursuant to s. 11(1)(a) of the Securities Act appointing investigators to investigate and inquire into allegations of conduct by Binance contrary to Ontario securities.
One of the investigators issued a Summons to Binance under the authority of s. 13 of the Securities Act which required that Binance provide the Commission with documents and other things listed. The widest demand was as follows:
For the period of January 1, 2021 to present, provide all communications regarding Ontario (or Canada generally) among directors, officers, employees, contractors, agents and consultants of Binance Holdings Limited and related entities, including Binance Canada Capital Markets Inc.[15]
This demand went on to provide a wide non-exclusive description of the form of "communications" that could include "e-mails, letters, [and] chats/texts on messaging platforms (e.g. Signal, WhatsApp, Telegram, Slack, etc.)". The Summons directed that the requested communications "shall include", but again, not be "limited to", "those among directors, officers, employees, contractors, agents and consultants of Binance regarding" a list of events and activities. The non-exclusive list of events and activities included account opening and trading procedures, staff training, hiring and the preparation of quarterly reports pursuant to the Undertaking.[16]
(b) Material legal principles established by section 8 of the Charter in the administrative context
The procedural history of the challenge to the summons is complex and reviewed in the decision.[17] At the Court of Appeal level, Justice David Paciocco canvasses the material legal principles established by section 8 of the Charter. The Court identifies several reasons why Binance had only a low expectation of privacy in business records that are being compelled. 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".[18] 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.”[19][emphasis added]
(c) The role of an administrative Tribunal in interpreting Section 8
The decision in Binance Holdings reviews various procedural issues related to the specific mandates of the Ontario Securities Commission as contrasted to the newly created Capital Markets Tribunal. The Supreme Court of Canada in York Region District School Board v. Elementary Teachers' Federation of Ontario[20] established that tribunals play a primary role in the determination of Charter issues falling within their specialised jurisdiction. In Binance the Court rejected the submission by Binance that the investigator is in effect the Commission. Therefore, the Court held that the Commission did not have jurisdiction to revoke the summons issued by an appointed investigator.
(d) The Denial of a Stay of Proceedings pending Judicial Review and Decision of the Court of Appeal to decide the Charter issues
After reviewing Supreme Court of Canada jurisprudence, Justice Paciocco was persuaded that there is no freestanding constitutional right to challenge a regulatory production order before compliance with it. 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.[21]
The Court did however find that the Divisional Court erred in declining judicial review of Binance’s Charter arguments in relation to the constitutional validity of the seizure. In making this ruling the Court made the practical observation that the Divisional Court certainly understood that if it declined judicial review Binance would be obliged, on pain of a contempt hearing, to continue to comply with the Summons that it believed to be unconstitutional until the Commission could render a decision on its jurisdiction at some unknown point in the future.[22]
On the record in Binance Holdings, the Court recognised that the constitutional issues in the case turned largely on the breadth of the Summons, which can be determined on its face. Accordingly, it chose to decide those issues.
(e) The summons was staggering in its breadth and unconstitutionally overbroad
Justice David Paciocco held that the summons in issue was “staggering in its breadth” and as such was unconstitutionally broad:
In this case, the inquiry that was being undertaken was described by the Commission in commendable detail in the Investigation Order, which set out both the events of interest and the Commission's concerns about Binance's regulatory non-compliance. However, the Summons demanded production, without limitation, of all communications between virtually anyone that may have managed, been employed by, or done work for either Binance or its related entities over a two-and-a-half-year period relating not only to Ontario but to all of Canada, regardless of the subject matter of those communications. This demand, enforceable by the threat of contempt proceedings, is staggering in its breadth and in my view was made without apparent concern about the relevance of what was being demanded, beyond mere speculation that there could be something relevant that would otherwise be missed. I am therefore persuaded that the s. 13 Summons issued in this case is unconstitutionally overbroad.[23]
In my view, the Court was careful to consider section 8 Charter rights in the context of administrative searches as contrasted with criminal law searches. For example, 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. By contrast, Justice Paciocco observed that where documents are ordered to be produced by a regulator, the regulator will not see those documents until they arrive and therefor have no way of assuring relevance. Hence, he held that the most that can be expected is that the regulator will identify categories of documents that they have reason to believe may be relevant.[24]
(f) The relevance requirement is constitutionally required for most regulatory seizures as a matter of principle: No fishing expeditions allowed
The key point is that there must be some limits, even in the regulatory context, to prevent regulatory demands from becoming overburdensome fishing expeditions.[25] In Justice Paciocco’s view, the relevance requirement described by La Forest J. in Thompson[26] is constitutionally required for most regulatory seizures as a matter of principle. This principle relates to the purpose of the search. 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.[27] Simply put, speculative fishing expeditions are not allowed:
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.[28]
(g) An example of overbreadth: all communications without limits
The summons in Binance Holdings illustrates the overbreadth problem. The opening paragraph, reproduced in the decision and cited earlier in this article, required all communications regarding Ontario (or Canada generally) among directors, officers, employees, contractors, agents and consultants of Binance Holdings Limited and related entities, including Binance Canada Capital Markets Inc.
On its face, this paragraph demands "all communications", without any subject limitation. The demand is from every person who could have managed work not only of Binance but related entities without any limitation. The demand stretched beyond the regulatory jurisdiction of the Ontario Securities Commission to all communications regarding Canada generally.
(h) Targeting inquiries to categories of documents
As mentioned above, Justice Paciocco observed that where documents are ordered to be produced by a regulator, the regulator will not see those documents until they arrive and therefor have no way of assuring relevance. Hence, he held that the most that can be expected is that the regulator will identify categories of documents that they have reason to believe may be relevant.[29] This leads to the conclusion, set out earlier, that there is no reason why regulators cannot target their inquiries to categories of documents that are reasonably likely to contain relevant documents or otherwise describe the scope of their inquiry in a way that would enable the regulated party and the courts to identify relevant documentation.[30]
In the end result, the Court ordered the documents seized pursuant to the invalid Summons to be returned.[31]
IV. Binance Holdings is part of a trend
Leave to appeal has been sought by the Ontario Securities Commission to the Supreme Court of Canada in Binance Holdings.[32] The decision has sparked interest and has been recently cited by the Federal Court of Appeal in Commissioner of Competition and Amazon.com.ca, ULC and AMZN Mobile LLC.[33] This case is decided with respect to the specific provisions of section 11 of the Competition Act.
The Federal Court cites Binance for the principle that section 8 of the Charter requires regulators to have a reasoned basis for believing that records may be relevant to an investigation.[34] In this case the Application Judge expressed uncertainty about the scope of what the Commissioner was requesting. At one point the Application Judge stated that he did not “have a good feel for the extent of this Order”.[35]
The Federal Court of Appeal held that the Application Judge 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.”[36]
V. A Matrix Analysis
The Section 8 jurisprudence balances competing interests and addresses the proportionality issue through its assessment of the intensity of the reasonable expectation of privacy and its relevance inquiry.[37] This balancing test creates a matrix of factors, similar to the matrix found in due diligence jurisprudence. Risk assessment requires a balancing of two fundamental concepts: “precautions taken to avoid the event” versus “systems to measure potential gravity of impact.” The two categories can be used to generate a matrix that directs priorities in the taking of preventative steps.[38]
It is only fair that both the regulated, and the regulator, apply basic principles of proportionality.
Ken Jull is an Adjunct Professor at the Henry N.R. Jackman Faulty of Law, University of Toronto.
[1] Guindon v. Canada, 2015 SCC 41, (“Guindon”). See WRONGFUL FINDINGS OF LIABILITY IN THE CONTEXT OF ADMINISTRATIVE MONETARY PENALTIES by Kenneth Jull and Anna-Gabriella Bismarji, (2025) 56 The Advocates Quarterly 232.
[2] A recent example of the potential magnitude of AMPs is the decision by Justice Little in the Cineplex case, imposing an AMP in the amount of $38.978 million with respect to deceptive drip pricing, upheld by the Federal Court of Appeal. See Canada (Commissioner of Competition) v. Cineplex Inc, 2024 Comp. Trib. 5, Cineplex and Commissioner of Competition 2026 FCA 10. I refer to this case only as a recent example of a large AMP, but I believe that it was correctly decided on the merits and the constitutionality of the AMP was not challenged in that case.
[2] Cineplex and Commissioner of Competition, 2026 FCA 10.
[3] Canada (Commissioner of Competition) v Google Canada Corporation and Google LLC, 2026 Comp Trib 10.
[4] Ibid at paragraph 229.
[5] Ibid at paragraph 230.
[6] Ibid at paragraphs 302-303.
[7] See WRONGFUL FINDINGS OF LIABILITY IN THE CONTEXT OF ADMINISTRATIVE MONETARY PENALTIES by Kenneth Jull and Anna-Gabriella Bismarji, (2025) 56 The Advocates Quarterly 232.
[8] Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46.
[9] Ibid at para. 48.
[10] For analysis of the implications for administrative searches see Shea Coulson, “Case Comment on Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46: Reviewing the Consequences of a Search or Seizure in Administrative Regimes” (2017), 50 U.B.C. L. Rev. 37-48.
[11] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para 81. Leave to appeal has been sought by the OSC, 42156 (SCC).
[12] Ibid at para 109.
[13] Ibid at para 107.
[14] Ibid at para 7.
[15] Ibid at para 100.
[16] Ibid at para 14.
[17] Ibid at paras 16-29.
[18] Ibid at para 37 citing 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] 1 S.C.R. 627, at p. 646, per Wilson J.
[19] Ibid at para 40 citing British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, at para 52.
[20] York Region District School Board v. Elementary Teachers' Federation of Ontario, 2024 SCC 22.
[21] Supra note 11 at para 63.
[22] Ibid at para 73.
[23] Ibid at para 81.
[24] Ibid at para 88.
[25] Ibid at para 90.
[26] Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission, [1990] 1 S.C.R. 425.
[27] Supra note 11 at para 96.
[28] Ibid at para 98.
[29] Ibid at para 88.
[30] Ibid at para 107.
[31] Ibid at para 120.
[32] 42156 (SCC).
[33] Canada (Commissioner of Competition) and Amazon.com.ca, ULC and AMZN Mobile LLC 2026 FCA 64.
[34] Ibid at para 36.
[35] Ibid at para 57.
[36] Ibid at para 58.
[37] Supra note 12 at para 116.
[38] See Todd L Archibald & Kenneth E Jull, Profiting from Risk Management and Compliance (Toronto: Thomson Reuters, 2025) at ch 3.
