section 83.13(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

Affidavits in support of applications under subsection (1) can be sworn on information and belief without adverse inference from not providing evidence of personal knowledge.

SECTION WORDING

83.13(1.1) An affidavit in support of an application under subsection (1) may be sworn on information and belief, and, notwithstanding the Federal Court Rules, 1998, no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.

EXPLANATION

Section 83.13(1.1) of the Criminal Code of Canada provides the legal framework for initiating proceedings under the Anti-Terrorism Act. This section pertains specifically to the affidavit requirements that must be met to support an application under subsection (1). Such an application may be made by a peace officer or the Attorney General when there are reasonable grounds to believe that a terrorist activity or any other related threat exists. Under this section, a person swearing an affidavit in support of the application may do so on their information and belief, which is a deviation from the usual requirement of personal knowledge. In other words, if a person has reasonable grounds to believe that a particular individual is involved in terrorist activities or poses a threat, they may make an application on that basis, provided that they can substantiate their belief with relevant and reliable information. It is important to note that this provision also deviates from the Federal Court Rules, 1998, by stating that no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts. This means that if the person making the application does not have personal knowledge of specific material facts, they are not obliged to provide evidence from someone who does. Overall, Section 83.13(1.1) reflects the need to balance concerns of national security with the legal protections afforded to individuals under the Canadian legal system. By allowing for affidavits to be sworn on information and belief, this section ensures that applications can be made quickly and efficiently when there is a reasonable belief that terrorist activity or other similar threats exist. However, it also limits the potential for adverse inferences to be drawn from a lack of personal knowledge, helping to protect the rights of individuals who may be impacted by such proceedings.

COMMENTARY

Section 83.13(1.1) of the Criminal Code of Canada is an interesting provision that allows for an affidavit to be sworn on information and belief, and that no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts. This provision has important implications for applications made under subsection (1) of section 83.13, which deals with the preventive arrest, detention, and release of individuals suspected of engaging in terrorism-related activities. One of the main benefits of this provision is that it allows for flexibility in the evidence that may be presented to support an application under subsection (1). Swearing an affidavit on information and belief means that an individual may provide evidence that they reasonably believe to be true, even though they may not have direct personal knowledge of the material facts. This can be especially helpful in cases where obtaining direct evidence of a suspect's activities and intentions may be difficult or impossible. The provision also recognizes that in some cases, it may not be possible to provide evidence from persons with personal knowledge of the material facts. This may be due to a number of reasons, such as concerns for the safety or security of witnesses, or because there is a lack of witnesses with relevant information. In such cases, the provision ensures that no adverse inference shall be drawn from the absence of such evidence. However, the provision has also been subject to criticism. Some have argued that it may lead to applications being made on the basis of unproven and unreliable information. This is because an affidavit made on information and belief may be based on hearsay or unverified reports, which may not be reliable sources of evidence. Additionally, the absence of evidence from persons with personal knowledge may make it more difficult for a court to assess the credibility and reliability of the evidence presented. Another concern is that the provision may infringe on an individual's rights to due process and a fair trial. This is because preventive arrest, detention, and release provisions are arguably among the most intrusive powers available to the state, and can result in a significant infringement on an individual's liberty. As such, it is important to ensure that any evidence presented to support an application under subsection (1) is reliable, credible, and subject to appropriate scrutiny by the court. In conclusion, section 83.13(1.1) of the Criminal Code of Canada provides important flexibility in the evidence that may be presented to support an application under subsection (1) of section 83.13. While this can be helpful in some cases, it is important to ensure that any evidence presented is reliable, credible, and subject to appropriate scrutiny by the court. Failure to do so could result in an undue infringement on an individual's rights to due process and a fair trial.

STRATEGY

Section 83.13(1.1) of the Criminal Code of Canada provides provisions for obtaining an emergency wiretap warrant in cases where there is an immediate and imminent threat to national security or when an individual is suspected to have committed a terrorism-related offense. The provisions stipulate that an affidavit in support of an application under subsection (1) may be sworn on information and belief. Additionally, no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that need to be made. Among them are: 1. Ensuring that the evidence presented in the affidavit is credible and reliable. In cases where an emergency wiretap warrant is being sought, the evidence presented in the affidavit must be credible and reliable. It is imperative to provide sufficient and comprehensive details on the imminent threat to national security or the suspicion of a terrorism-related offence. The evidence presented must be clear, concise, and verifiable, as the decision to grant the warrant is often based on the strength of the evidence presented. 2. Providing necessary information while complying with privacy laws While providing adequate evidence to support an application under subsection (1), it is crucial to ensure that confidentiality and privacy laws are upheld. This can be achieved by moderating the amount of data that is disclosed in the affidavit. The goal is to provide enough information to obtain the warrant while safeguarding the privacy of individuals who might not be involved in the offense. 3. Ensuring that the wiretap warrant is tailored to meet the objective The wiretap warrant sought under section 83.13(1.1) of the Criminal Code of Canada should be carefully tailored to meet the investigation's objective and not more than what is necessary to achieve that objective. There should be no unnecessary intrusions on the privacy of persons who have no involvement in the investigation. Strategies that could be employed when dealing with Section 83.13(1.1) of the Criminal Code of Canada: 1. Collaboration with relevant agencies It is essential to work closely with other relevant agencies like the Canadian Security Intelligence Services (CSIS), the Royal Canadian Mounted Police (RCMP), and others who are providing intelligence on the threat to national security. This collaboration will lead to the timely and efficient gathering, analysis, and presentation of the evidence needed to obtain the warrant. 2. Familiarize oneself with the relevant case laws There have been a few cases that have tested the constitutionality of Section 83.13(1.1) of the Criminal Code of Canada. The applicant and their lawyers should be conversant with the relevant case laws, the factual matrix, the legal interpretations, and reasoning to offer appropriate arguments and counter-arguments when necessary. 3. Ensuring that all statutory requirements are met A wiretap warrant that is obtained under section 83.13(1.1) of the Criminal Code of Canada must meet all statutory requirements of the Criminal Code of Canada, especially section 487.8. This guarantees that the evidence obtained through the wiretap warrant can be admitted in court. In cases of non-compliance, the evidence could be excluded or dismissed, which could ultimately weaken the prosecution's case. In conclusion, obtaining an emergency wiretap warrant under Section 83.13(1.1) of the Criminal Code of Canada is a complicated process that requires a keen understanding of the law, proper preparation, and strict adherence to statutory and legal requirements. Adequate collaboration with relevant agencies, sufficient evidence gathering, and compliance with privacy laws are some strategic considerations that need to be adequately addressed when seeking a wiretap warrant under this section of the Criminal Code of Canada.

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