INTRODUCTION AND BRIEF DESCRIPTION
An application for an investigative hearing must include a certificate proving the person is referred to in the section, which can be used as evidence without prior notice.
SECTION WORDING
487.055(2) The application shall be accompanied by a certificate referred to in paragraph 667(1)(a) that establishes that the person is a person referred to in subsection (1). The certificate may be received in evidence without giving the notice referred to in subsection 667(4).
EXPLANATION
Section 487.055(2) of the Criminal Code of Canada pertains to the requirement of a certificate when applying for a search warrant. The certificate must establish that the person being searched is the one referred to in subsection (1) of the same section. Subsection (1) outlines the circumstances in which a warrant can be issued for the search and seizure of electronic devices. This includes situations where an offence has been or is likely to be committed, and the device in question can provide evidence related to the crime. The certificate referred to in subsection (2) serves as proof that the individual being targeted by the search warrant meets the criteria outlined in subsection (1). Without this certificate, a search warrant cannot be issued, since it would lack the necessary information to establish probable cause. It is also important to note that the certificate may be received in evidence without the need for a notice referred to in subsection (4) of section 667. This provision expedites the issuance of search warrants in urgent situations, where time is of the essence. Overall, section 487.055(2) of the Criminal Code of Canada ensures that the requirement for a certificate is met before a search warrant can be issued for the search and seizure of electronic devices. This helps to safeguard individuals' privacy rights while allowing law enforcement to gather necessary evidence to investigate and prosecute crimes.
COMMENTARY
Section 487.055(2) of the Criminal Code of Canada provides for the procedure to be followed when an application is made for a production order or a search warrant. The section specifies that the application must be accompanied by a certificate that establishes that the person who is the subject of the order or warrant is one of the persons referred to in subsection (1) of the section. Subsection (1) of section 487.055 specifies that a production order or a search warrant may be issued for the purpose of obtaining data or information that is stored electronically and that is relevant to the investigation of a crime or an offence. The subsection further specifies that the order or warrant may be issued for the person who owns or has control over the data or information, or for any other person who may have access to it. The certificate referred to in subsection (2) is a key piece of evidence that is required to establish that the person who is the subject of the order or warrant is indeed one of the persons referred to in subsection (1). The certificate is issued by a judge who is satisfied that there are reasonable grounds to believe that the data or information that is sought by the order or warrant is relevant to the investigation of a crime or an offence. The certificate must be accompanied by information that identifies the person who is the subject of the order or warrant, and provides details about the nature of the data or information that is sought. The certificate must also specify the duration of the order or warrant, and any other conditions that may be attached to it. Once the certificate is received, it may be admitted as evidence without the need to give the notice required by subsection 667(4) of the Criminal Code. This means that the certificate may be used as evidence during the trial without the need for additional notification or disclosure to the accused. The use of certificates in this manner is an important tool for law enforcement agencies and investigators, as it streamlines the process of obtaining necessary evidence, reducing delays and minimizing the risk for potential data destruction or tampering. At the same time, it provides safeguards to protect people's privacy and other legal rights, by requiring that the certificate be issued by a judge who has made careful determinations about the relevance and legality of the requested orders or warrants. In summary, section 487.055(2) of the Criminal Code of Canada is an essential provision that enables the efficient and effective gathering of electronic data and information during criminal investigations, while ensuring that proper legal procedures and safeguards are followed to protect people's rights and privacy.
STRATEGY
Section 487.055(2) of the Criminal Code of Canada requires an application for a production order to be accompanied by a certificate proving that the person in question is referred to in subsection (1). This section has important strategic implications for lawyers representing clients in criminal proceedings. It is important for lawyers to understand the requirements of this section and to develop effective strategies to deal with them. One strategy that could be employed when dealing with this section is to challenge the validity of the certificate. The certificate referred to in paragraph 667(1)(a) is a Crown affidavit that provides evidence to support the application for a production order. If there are weaknesses in the certificate, such as inconsistencies with other evidence or gaps in the information provided, a lawyer may be able to challenge its validity and prevent the issuance of a production order. Another strategy that could be employed is to negotiate with the Crown prosecutor to obtain a copy of the certificate before the application is made. This would allow the defence to review the evidence provided in the certificate and prepare a more effective response to the application for a production order. It may also allow the defence to identify weaknesses in the Crown's case and develop a strategy to challenge the production order. A further strategy that could be used when dealing with this section is to challenge the validity of the production order itself. If the certificate is valid, but there are weaknesses in the production order, such as errors in the information provided or failure to comply with procedural requirements, a lawyer may be able to challenge the validity of the order and prevent the Crown from obtaining the evidence they need. Overall, the strategic considerations when dealing with section 487.055(2) of the Criminal Code of Canada are complex and multifaceted. It is important for lawyers to carefully review the evidence provided in the certificate and in the production order and to develop effective strategies to challenge the Crown's case. By understanding the requirements of this section and developing effective strategies, lawyers can protect the rights of their clients and ensure that justice is served.