Criminal Code of Canada - section 185(4) - Where extension not granted

section 185(4)

INTRODUCTION AND BRIEF DESCRIPTION

If a judge refuses or sets a shorter period for an authorization application, the applicant may withdraw the application and the judge will not consider it.

SECTION WORDING

185(4) Where the judge to whom an application for an authorization and an application referred to in subsection (2) are made refuses to fix a period in substitution for the period mentioned in subsection 196(1) or where the judge fixes a period in substitution therefor that is less than the period set out in the application referred to in subsection (2), the person appearing before the judge on the application for the authorization may withdraw the application for the authorization and thereupon the judge shall not proceed to consider the application for the authorization or to give the authorization and shall return to the person appearing before him on the application for the authorization both applications and all other material pertaining thereto.

EXPLANATION

Section 185(4) of the Criminal Code of Canada provides a provision relating to the withdrawal of an application for authorization made under subsection (2) of section 185. The section allows a person appearing before a judge on the application for the authorization to withdraw the application if the judge refuses to fix a period in substitution for the period mentioned in subsection 196(1) or fixes a period that is less than the period set out in the application referred to in subsection (2). This provision aims to ensure that the person seeking the authorization is comfortable with the period for which the authorization is granted. It recognizes the importance of setting a reasonable period for which an authorization is granted and takes into account the concerns raised by the person seeking the authorization. If the judge declines to fix a period in substitution for the period mentioned in subsection 196(1) or sets a shorter period, the applicant may withdraw the application. The provision ensures that there is no compulsion on the part of the applicant to continue with the application if they are not comfortable with the period for which the authorization is granted. Additionally, the provision prevents individuals from being granted authorizations for periods that they may not require, and promotes the principles of proportionality while striking a balance between the rights of the individual and the demands of law enforcement. Overall, section 185(4) reinforces the idea that authorizations should be granted for a reasonable period and allows applicants to withdraw their application if they are not satisfied with the period for which the authorization is granted. The provision ensures that the process of authorization is facilitated while protecting the rights of individuals.

COMMENTARY

Section 185(4) of the Criminal Code of Canada is concerned with the authorization of wiretapping by judicial authority. It deals with situations where a person seeking authorization to intercept private communications is unhappy with the period of authorization fixed by a judge. The section provides that if a judge refuses to fix a period in substitution for the period mentioned in section 196(1), or if the judge fixes a period in substitution that is less than the period set out in the application referred to in subsection (2), then the applicant may withdraw the application for the authorization. In this case, the judge shall not proceed to consider the application for the authorization or to give the authorization. Instead, he or she shall return to the person appearing before him on the application for the authorization both applications and all other material pertaining thereto. The purpose of this section is to provide a safeguard against abuse of the power to authorize wiretapping. It recognizes that, while wiretapping can be an important tool in the fight against crime, it also has the potential to infringe on an individual's right to privacy. As such, it is essential that the authorization process is subject to appropriate scrutiny and oversight. The provision also reflects the principle of proportionality. This requires that any interception of private communications must be necessary in the circumstances and must be proportionate to the objective sought to be achieved. By allowing an applicant to withdraw an application for authorization if the fixed period is too short, the section ensures that only those interceptions that are truly necessary and proportionate are authorized. Moreover, the provision ensures that the person seeking authorization always has control over the authorization process. It recognizes that the individual's rights are at stake and, as such, they should have the final say in whether or not to proceed with the authorization process. This is consistent with the principle of due process, which requires that individuals are given a fair hearing before any interference with their rights is allowed. In conclusion, section 185(4) of the Criminal Code of Canada is an important safeguard against the abuse of power in the authorization of wiretapping. It ensures that only those interceptions that are necessary and proportionate are authorized, and that the rights of individuals are respected throughout the process. By giving individuals control over the authorization process, the provision reflects the principles of proportionality and due process, which are fundamental to the Canadian legal system.

STRATEGY

Section 185(4) of the Criminal Code of Canada allows for the withdrawal of an application for an authorization if the judge refuses to fix or fixes a period that is less than the period mentioned in subsection 196(1). Strategic considerations when dealing with this section of the Criminal Code of Canada could include the following: 1. Timing: It is important to consider the timing of the application for an authorization. If the judge refuses to fix a period or fixes a period that is less than the period mentioned in the application, the person may withdraw the application. Therefore, it may be beneficial to wait until closer to the end of the period mentioned in the application before submitting the application for authorization. 2. Presentation of evidence: When making the application for authorization, it is important to present all relevant evidence to the judge in a clear and concise manner. This may include factual information, witness statements, and any other relevant evidence. By presenting a strong case, the judge may be more likely to fix a longer period for the authorization. 3. Negotiation: If the judge refuses to fix a period or fix a period that is less than the period mentioned in the application, it may be possible to negotiate with the Crown prosecutor to come up with a mutually agreeable solution. This could involve agreeing to a reduced period of authorization or providing additional evidence to support the longer period requested in the application. 4. Consistency: It is important to ensure that the evidence presented in the application for authorization is consistent with any other evidence presented in related proceedings. If there are inconsistencies, this could weaken the application and lead to a shorter period of authorization being fixed by the judge. 5. Appeal: If the judge refuses to fix a period or fixes a period that is less than the period mentioned in the application, it may be possible to appeal the decision. However, this can be a lengthy and costly process, so it should only be pursued after careful consideration of the strength of the case and the potential outcomes. In conclusion, Section 185(4) of the Criminal Code of Canada provides an option for withdrawing an application for authorization if the judge refuses to fix a period or fixes a shorter period than requested. Strategic considerations when dealing with this section may include timing, presentation of evidence, negotiation, consistency, and appeal. Employing these strategies could lead to a more favorable outcome when dealing with this section of the Criminal Code.