INTRODUCTION AND BRIEF DESCRIPTION
Evidence obtained by interception of private communication may be deemed inadmissible if subsequent authorizations were based on the same facts and individuals, or related to the same offense as the original authorization.
SECTION WORDING
188(5) The trial judge may deem inadmissible the evidence obtained by means of an interception of a private communication pursuant to a subsequent authorization given under this section, where he finds that the application for the subsequent authorization was based on the same facts, and involved the interception of the private communications of the same person or persons, or related to the same offence, on which the application for the original authorization was based.
EXPLANATION
Section 188(5) of the Criminal Code of Canada deals with the admissibility of evidence obtained through the interception of private communications. This section outlines that a trial judge may rule such evidence inadmissible if a subsequent authorization was obtained based on the same facts as the original authorization and involved the interception of private communications of the same individual(s) or related to the same offense. The purpose of this section is to ensure that law enforcement agents do not abuse the authorization process in order to conduct broad surveillance and gather evidence beyond what is necessary for a specific investigation. If the same individuals or offenses are targeted repeatedly, it may indicate an abuse of the authorization process, and evidence obtained in such a manner may not be admissible in court. This section also underscores the importance of judicial oversight in authorizing interceptions of private communications. The judge must carefully consider the evidence presented and ensure that it fulfills the criteria for interception. If subsequent authorizations are sought, the judge must be satisfied that the evidence continues to justify the interception, and that there are no signs of abuse or overreach. Overall, Section 188(5) serves to protect the privacy rights of individuals while ensuring that legitimate investigations are not hindered. It highlights the importance of following legal procedures and obtaining judicial authorization before carrying out interceptions of private communications.
COMMENTARY
Section 188(5) of the Criminal Code of Canada deals with the admissibility of evidence obtained through the interception of private communication. The section gives the trial judge the power to declare such evidence inadmissible if the subsequent authorization for the interception was based on the same facts and involved private communication of the same individuals or related to the same offence as the original authorization. The protection of privacy is a fundamental right enshrined in the Canadian Constitution. Intercepting private communication, whether verbal or written, is a significant invasion of privacy. Therefore, intercepting private communication is not allowed unless authorized through a court approval. However, the Criminal Code emphasizes the importance of judicial supervision of any intercepts. The Criminal Code allows the interception of private communication in specific situations when it is necessary for investigating a crime. The law enforcement agencies must obtain prior court approval for such interception, and the approval is subject to strict conditions and procedures outlined in Section 186 and Section 188 of the Criminal Code. These provisions aim to strike a balance between the need to investigate criminal activities and the protection of personal privacy. Section 188(5) was added to the Criminal Code in 1980 when the Supreme Court of Canada ruled in R. v. Duarte that intercept evidence obtained through an authorization issued without an appropriate belief that the interception was in fact required for the investigation was inadmissible. This ruling strengthened the protection of communication privacy in Canada and led to a revision of the Criminal Code. Section 188(5) is a safeguard that seeks to avoid the abuse of judicial authorization. It promotes accountability of the law enforcement agencies by requiring them to obtain new court approval if they need to continue the interception beyond the original authorization. Further, it discourages the use of systemic interruptions that involve multiple authorizations to cover entirely disconnected criminal activities. However, there are several potential issues with the provision. For instance, the provision places a considerable burden on the trial judge to determine if the subsequent application was based on the same facts and involved the interception of the same private communications of the same person or persons, or related to the same offence, as the original authorization. This could lead to a subjective interpretation of the level of connection between the two authorizations and resulting in different judgments across trials. Moreover, the provision does not clarify how the trial judge should handle the information obtained through the interception before the application of deemed inadmissibility. In some cases, the intercepted information may already have led to the discovery of other evidence necessary for the prosecution. Excluding such information could substantially undermine the prosecution case, leaving them with no evidence to prove their case beyond a reasonable doubt. In conclusion, Section 188(5) is an essential provision of the Criminal Code that ensures the protection of privacy rights in Canada. However, the provision needs some clarification and guidance regarding the burden of proof and the fastening process of the intercepted data before trial judges can consider it inadmissible.
STRATEGY
Section 188(5) of the Criminal Code of Canada is a critical provision that criminal litigators must be aware of. It establishes the circumstances under which evidence obtained through an interception of a private communication pursuant to a subsequent authorization may be deemed inadmissible. If a judge finds that the application for subsequent authorization was based on the same facts, same person or persons, or related to the same offence, the evidence may be deemed inadmissible. Strategic considerations when dealing with this provision will depend on the specifics of each case. However, here are some common tactics that litigators may consider: 1. Analyzing the Authorization Requests The litigator may use a forensic approach to analyze the authorization requests for interception of a private communication. They may scrutinize the original authorization request and the subsequent authorization request to identify any overlapping factors. If the litigator can establish that the subsequent authorization was based on the same facts and related to the same offence as the original authorization, then they may challenge the admissibility of the evidence obtained after the subsequent authorization. 2. Identifying the Persons Involved The litigator may also consider identifying the persons involved in the original and subsequent authorization requests. The judge is likely to deem the evidence inadmissible if it was obtained through an interception of the same person's private communications in both authorizations. The litigator may establish that both authorizations relate to the same person's communications and could successfully argue against the admissibility of evidence. 3. Proving Relatedness to the Same Offence The Criminal Code of Canada provides that evidence obtained through a subsequent authorization may be deemed inadmissible if it relates to the same offence as the original authorization. The litigator may emphasize the relatedness of the offences when analyzing the authorization requests. Any inconsistencies or contradictions between the information provided in the two authorizations could be used as arguments against the admissibility of the evidence. 4. Alternative Theories of the Case The litigator may also consider alternative theories of the case. They could argue that the subsequent authorization amounted to a fishing expedition or that it lacked reasonable and probable grounds. The litigator may also question the relevancy of the evidence if it is not central to the case. 5. Creative Strategies The litigator may use creative strategies to challenge the admissibility of the evidence. For instance, they could argue that the subsequent authorization lacked specificity or that it was not sufficiently detailed. They may also consider other factors, such as the timing of the original authorization and the subsequent authorization, when trying to make a case against the admissibility of the evidence. In conclusion, section 188(5) of the Criminal Code of Canada is a potent provision that criminal litigators should be knowledgeable about. There are various strategies that litigators can use to challenge the admissibility of evidence obtained through a subsequent authorization. The most effective tactics will depend on the specific facts of each case. Nonetheless, any of the above-discussed methods could prove fruitful in certain cases.