INTRODUCTION AND BRIEF DESCRIPTION
An affidavit in support of an anti-terrorism application may be sworn on information and belief without the need for personal knowledge.
SECTION WORDING
83.14(2) An affidavit in support of an application by the Attorney General 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 83.14(2) of the Criminal Code of Canada pertains to the requirements for an application by the Attorney General under subsection (1) of the same section. This subsection allows the Attorney General to apply for a peace bond against an individual who is believed to pose a threat to the safety and security of Canada. The peace bond is essentially a court order that requires the individual to follow certain conditions, such as staying away from certain people or places. In order to make an application for a peace bond, the Attorney General must present an affidavit in support of the application. This affidavit is a sworn statement that provides information about the individual in question and the reasons why a peace bond is necessary. Section 83.14(2) specifies that this affidavit can be based on information and belief, rather than personal knowledge or direct evidence. This means that the Attorney General can rely on indirect or circumstantial evidence in the affidavit, rather than direct evidence from witnesses or other sources. Additionally, even if the Attorney General does not provide evidence of persons having personal knowledge of material facts, no adverse inference shall be drawn. This means that a court cannot assume that the information presented in the affidavit is unreliable simply because it is not backed up by witnesses or direct evidence. Overall, section 83.14(2) is designed to make it easier for the Attorney General to seek a peace bond against individuals who are believed to pose a threat to the safety and security of Canada. By allowing the affidavit to be based on information and belief, rather than requiring direct evidence, the process is streamlined and made more efficient.
COMMENTARY
Section 83.14(2) of the Criminal Code of Canada is an important provision that enables the Attorney General to make an application to the court for an order prohibiting terrorist activity or the support of terrorism. This provision permits the Attorney General to swear an affidavit based on information and belief, rather than requiring firsthand knowledge. Furthermore, it precludes the court from drawing any adverse inference from a failure to provide evidence of persons with personal knowledge of relevant facts. As a result of this provision, the Attorney General is able to apply for an order under Section 83.13 of the Criminal Code on the basis of hearsay evidence. This is significant, as it allows authorities to act quickly and proactively to prevent terrorist activities or the support thereof. Under the Federal Court Rules, 1998, there is typically a requirement for affidavits to be based on personal knowledge or to include statements of grounds or sources of information. This can create difficulties in situations where intelligence or other classified information is involved. The provision of Section 83.14(2) enables the Attorney General to take action based on information that may not be admissible in a court of law. However, it is important to note that the provision is subject to strict rules of evidence, such as the obligation to disclose the sources and grounds of information and belief. Additionally, the provision is subject to judicial oversight, as the court must still be satisfied that the evidence presented is reliable and credible, and that the order sought is necessary and proportionate. The provision strikes a balance between the need to act quickly and effectively to prevent terrorist activities or the support thereof, and the importance of protecting individual rights and liberties. The provision recognizes that traditional evidentiary rules may not be appropriate in cases where national security is threatened. It enables the authorities to proactively investigate and disrupt terrorist and extremist activity while safeguarding the rights and freedoms of Canadians. However, there is a risk that the provision could be abused or misused by law enforcement agencies. The government must ensure that appropriate safeguards are in place to prevent such abuses and maintain public confidence in the justice system. In conclusion, Section 83.14(2) of the Criminal Code of Canada is a vital provision that enables the Attorney General to apply for orders prohibiting terrorist activity or the support thereof on the basis of information and belief. While it allows for action based on hearsay evidence, it is subject to strict rules of evidence and judicial oversight. The provision strikes a balance between the need to protect national security and the importance of safeguarding individual rights and liberties. However, it must be accompanied by appropriate safeguards to prevent abuses and maintain public trust in the justice system.
STRATEGY
Section 83.14(2) of the Criminal Code of Canada grants the Attorney General the power to apply for the issuance of a peace bond against a person if there are reasonable grounds to believe that the individual may commit a terrorism offence. This section also provides guidance on how an affidavit can be sworn for the application by the Attorney General. In this essay, we will discuss some strategic considerations and potential strategies that lawyers and clients can employ when dealing with this section of the Criminal Code. One of the strategic considerations is the burden of proof required for the Attorney General to apply for a peace bond under Section 83.14(2). The Attorney General needs to provide reasonable grounds to believe that the subject of the peace bond may commit a terrorism offence. This standard is relatively low and much easier to meet than the standard of proof beyond a reasonable doubt that is required for a criminal conviction. Therefore, it is crucial for legal practitioners to undertake a comprehensive review of the evidence presented by the Attorney General to ensure that the grounds on which the Attorney General seeks the peace bond meet the requirements of Section 83.14(2). Another significant consideration when dealing with Section 83.14(2) is the affidavit's nature and the requirements for evidence. Under this section, an affidavit can be based on information and belief. This implies that an affidavit can be sworn based on information that is not within the declarant's personal knowledge. However, the admissibility of information based on hearsay will depend on the relevance and probative value of the information. In cases where evidence from people who have personal knowledge of material facts is not available, legal practitioners can utilize the provision of this section to make the application. When preparing an application under Section 83.14(2), it is advisable for legal practitioners to ensure that the affidavit meets the statutory requirements. Failure to meet the statutory requirements may lead to the dismissal of the application. Legal practitioners should ensure that the affidavit is sworn correctly, and the contents of the affidavit align with the statutory provision. In dealing with this section, legal practitioners should also be aware that no adverse inference can be drawn from a failure to provide evidence of persons having personal knowledge of material facts. Therefore, where an application lacks such evidence, the court is not obliged to draw adverse inferences against the Attorney General's case. Nonetheless, lawyers should be aware that failing to provide evidence from persons with personal knowledge of material facts may negatively impact the application's credibility. In regards to strategies that can be employed when dealing with Section 83.14(2), legal practitioners can request disclosure of all relevant materials gathered by the Attorney General to support the application. This would provide more insight into the evidence on which the application is based and help assess the strength of the case. Lawyers may also seek leave of the court to cross-examine the Attorney General's affiant, who swore the affidavit in support of the application. Cross-examination would enable legal practitioners to challenge the strength and weight of the evidence presented by the Attorney General. Additionally, challenging the credibility and reliability of the witnesses presented by the Attorney General can be instrumental in defeating or mitigating the impact of the application. In conclusion, Section 83.14(2) of the Criminal Code of Canada provides a statutory framework for the Attorney General to apply for a peace bond in cases where there are reasonable grounds to suspect that a person may commit a terrorism offence. Legal practitioners need to be aware of the statutory requirements when preparing an affidavit in support of the application. They should also be aware of the potential challenges that may arise when dealing with this section and develop mitigation strategies. Ultimately, the objective should be to ensure that any application made under this section meets the statutory requirements and withstands any legal challenges that arise.
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