One to watch: SCC to weigh in on Charter standards applicable to regulatory production demands

The Supreme Court of Canada has granted leave to appeal in Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 [Binance]—a case raising important questions about the constitutional limits on regulatory document production demands. The appeal will be of interest not only to securities market participants, but to all businesses operating in regulated sectors.

Binance at the Ontario Court of Appeal

Binance concerned a regulatory production demand of “staggering”^[1] breadth, aimed at an online crypto asset trading company. In the words of Justice Paciocco, the Ontario Securities Commission (the “Commission”) had, by 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.[2]

The Ontario Court of Appeal set aside the summons, finding that it authorized an unreasonable and unconstitutionally broad seizure, contrary to s. 8 of the Charter.

The broad summons 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”.^[3] It therefore compelled the company to produce documents that the regulator had no foundation to believe would be relevant to its investigation.

Four key takeaways emerge from the Ontario Court of Appeal’s decision:

• First, Charter protections are attenuated in regulatory contexts. The protections against unreasonable search and seizure under s. 8 of the Charter remain applicable in most regulatory settings, but they must be applied using “a more flexible approach, sensitive to the needs and purposes of the regulatory model in question”.^[4] The assessment of what is reasonable in this context is contextual, requiring the court to consider “what is sought, from whom, for what purpose, by whom, and in what circumstances”.^[5]
• Second, the regulatory context reduces—but does not eliminate—a record holder’s reasonable expectation of privacy. While the low expectation of privacy in regulatory contexts supports a “more modest relevance test than is applied in criminal cases”^[6], it does not authorize the seizure of irrelevant documents. Relevance is still “constitutionally required for most regulatory seizures”.^[7]
• Third, fishing expeditions are not allowed. While regulatory production demands can appropriately be used as an “exploratory tool”^[8] to conduct compliance inquiries, there are limits. Regulators cannot compel “virtually everything generated by the company under investigation, even where there is no reasonable basis for believing it may be relevant to the inquiry at hand”^[9], based on a hope of uncovering something relevant after-the-fact. To be reasonable, a seizure must be related to the purpose for which the power of compulsion was granted, and the regulator must have a reasonable foundation for believing the target documents will be relevant to the inquiry when the demand is made.
• Finally, there is no freestanding constitutional right to have a regulatory production demand judicially reviewed before complying with it. However, the availability of judicial oversight is an important factor in assessing the reasonableness of a search or seizure under s. 8 of the Charter.

Appeal to the Supreme Court of Canada

The Commission sought leave to appeal on the following two issues:

• First, what is the appropriate relevance threshold that applies to a regulatory investigative summons under s. 8 of the Charter?
• Second, what remedy flows from finding that a regulatory investigative summons was in breach of s. 8 of the Charter?

The Commission argued that Binance, if allowed to stand, will upend the Canadian regulatory investigation landscape and create unnecessary roadblocks for regulatory investigations.^[10] It also argued that the “impossibly stringent” threshold set by the Ontario Court of Appeal would prevent regulators from conducting general compliance inquiries.^[11]

In response, Binance argued that the Ontario Court of Appeal’s decision merely restates decades of settled jurisprudence.^[12]

On May 21, 2026, the Supreme Court of Canada granted leave to appeal. The appeal is one to watch for regulated entities and regulators alike. The Supreme Court now has an opportunity to clarify the extent to which s. 8 of the Charter constrains broad regulatory demands for records in sectors where privacy expectations are reduced but the consequences of compelled production can still be significant.

^[1] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 81.

^[2] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 81.

^[3] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 81.

^[4] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 84.

^[5] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 98.

^[6] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 105.

^[7] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 96.

^[8] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 108.

^[9] Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at para. 106.

^[10] Ontario Securities Commission, Memorandum of Argument on Leave at 1.

^[11] Ontario Securities Commission, Reply to the Respondent’s Memorandum of Argument on Leave, online at 1.

^[12] Memorandum of Argument of the Respondent, Binance Holdings Limited (Court File No 42156), online at 9-11, 15-16.