INTRODUCTION AND BRIEF DESCRIPTION
A judge must record and seal the application for an authorization made under section 184.3 of the Criminal Code of Canada.
SECTION WORDING
184.3(3) The judge shall record, in writing or otherwise, the application for an authorization made under this section and, on determination of the application, shall cause the writing or recording to be placed in the packet referred to in subsection 187(1) and sealed in that packet, and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187.
EXPLANATION
Section 184.3(3) is a provision in the Criminal Code of Canada that relates to the process of obtaining a judicial authorization for certain investigative techniques related to national security and terrorism. It requires that a judge properly document the application made for such an authorization, whether by writing or otherwise, and then place that record in a sealed packet which will be treated as a document for the purposes of section 187. The purpose of this provision is to ensure that there is a clear and detailed record of the application for an authorization, as well as the decision made by the judge in response. This can help to ensure that the process is transparent, accountable, and can withstand scrutiny if challenged in court. It is thus an important safeguard against potential abuses of power, ensuring that such applications are only made in appropriate circumstances and that they are subject to proper oversight. Overall, section 184.3(3) is one of many provisions in the Criminal Code of Canada that is designed to balance the need for effective law enforcement and national security with the rights and freedoms of individuals. It provides an important layer of accountability and transparency in the use of certain investigative techniques, helping to ensure that they are only used when necessary, and in accordance with the law.
COMMENTARY
Section 184.3(3) of the Criminal Code of Canada is an important provision that governs the use of wiretapping and other forms of electronic surveillance by law enforcement officials. The section specifies the procedures that must be followed when an application for electronic surveillance is made under Section 184.2 of the Code. The provision requires that the judge who receives an application for electronic surveillance to record it, either in writing or by other means. The record of the application is then to be placed in a sealed packet, which is to be treated as if it were a document under Section 187 of the Code. The purpose of this provision is to ensure that the use of electronic surveillance is transparent and accountable. By requiring judges to record and seal the applications they receive, the section creates a record that can be reviewed by higher courts to ensure that the authorization was properly granted. The provision also helps to protect the privacy of individuals who may be subject to electronic surveillance. By requiring the record of the application to be sealed, the section prevents unauthorized personnel from accessing it. Additionally, the fact that the record is treated as a document under the Code means that it is subject to the same rules regarding disclosure and admissibility as any other document. Overall, Section 184.3(3) is an essential safeguard that helps to ensure that electronic surveillance is used only when necessary and in accordance with the law. It promotes transparency and accountability, and helps to protect the privacy rights of individuals who may be subject to surveillance. As such, it is an important provision that should be respected and adhered to by law enforcement officials at all times.
STRATEGY
Section 184.3(3) of the Criminal Code of Canada is a critical provision that sets out the procedures for recording and storing applications for authorizations made under this section. The section outlines the legal requirements for a judge to record such applications in writing or through recording, place them in a sealed packet, and treat the recording as a document for the purposes of section 187. When dealing with this section of the Criminal Code, there are some strategic considerations that investigators, prosecutors, and judges must take into account. These considerations include: 1. Complying with the legal requirements: The first strategic consideration is to ensure that all parties involved in the application process comply with the legal requirements set out in the section. The judge must record the application in writing or through recording, and once the determination is made, they must place the recording in a sealed packet and treat it as a document for the purposes of section 187. Any non-compliance with these requirements can result in serious consequences such as the application being challenged in court as an illegal search or seizure. 2. Minimizing the risk of disclosure: Another strategic consideration is to ensure that all steps are taken to minimize the risk of disclosure of the recording by unauthorized individuals. The sealed packet containing the recording must be carefully secured and accessed only by authorized personnel. Failure to do so can result in the unauthorized disclosure of sensitive and confidential information and can severely compromise the integrity of the investigation. 3. Ensuring that the recording is admissible in court: The third strategic consideration is to ensure that the recording is admissible as evidence in court. The prosecution must establish that the recording was lawfully obtained and that it is relevant and reliable. Additionally, the recording must not infringe on any Charter-protected rights, such as the right to privacy. To achieve these strategic considerations, some strategies that could be employed include: 1. Clear communication between parties: The investigators, prosecutors, and judges involved in the application process must communicate effectively and ensure that all parties understand their roles and responsibilities in complying with the legal requirements. 2. Strict control of access to the recording: Only authorized personnel should have access to the sealed packet containing the recording, and strict control measures should be in place to prevent unauthorized access. 3. Proper record-keeping: Proper record-keeping procedures should be implemented to ensure that all steps taken to comply with the legal requirements are documented, and any potential issues or challenges can be addressed. 4. Adequate training and resources: Investigators, prosecutors, and judges involved in the application process should be adequately trained and have access to the necessary resources to ensure that they can comply with the legal requirements effectively. In conclusion, Section 184.3(3) of the Criminal Code of Canada sets out critical procedures for recording and storing applications made under this section. Complying with the legal requirements, minimizing the risk of disclosure, and ensuring the recording is admissible in court are crucial strategic considerations that investigators, prosecutors, and judges must take into account. Employing strategies such as clear communication, strict control, proper record-keeping, and adequate training and resources can help ensure compliance with the legal requirements and increase the chances of success in court.