INTRODUCTION AND BRIEF DESCRIPTION
A peace officer may apply to a judge for an order to gather information for investigating a terrorism offence.
SECTION WORDING
83.28 (2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.
EXPLANATION
Section 83.28(2) of the Criminal Code of Canada gives peace officers the authority to seek an ex parte order from a judge for the gathering of information relating to an investigation of a terrorism offence. To be granted such an order, the officer is required to make an application, without giving notice to any other party, and demonstrate to the judge that it is necessary to gather information for the investigation. The purpose of this provision is to enable peace officers to gather information crucial to the investigation of a terrorism offence in a timely and efficient manner, without potentially tipping off any individuals or groups who may be involved or connected to the offence. This tool is particularly useful in the context of terrorism, where investigations often involve complex, interconnected networks of individuals and organizations whose activities may be difficult to monitor or detect. However, it is important to note that the use of ex parte orders must be balanced against the rights of individuals to privacy and due process. Subsection (3) of Section 83.28 provides certain safeguards, including the requirement for the peace officer to produce a sworn affidavit and for the judge to be satisfied that the information sought is likely to be useful in the investigation and that attempts have been made to obtain the information through other means. In summary, Section 83.28(2) of the Criminal Code of Canada provides peace officers with a valuable tool for gathering information in the investigation of terrorism offences, while balancing the need for operational flexibility with the protection of individual rights.
COMMENTARY
Section 83.28(2) of the Criminal Code of Canada grants peace officers the power to apply ex parte to a judge for an order for the gathering of information for the purposes of investigating a terrorism offence. This section is an important tool for law enforcement in the fight against terrorism and reflects the need to balance the protection of individual rights with the need to maintain public safety and security. Ex parte applications refer to court proceedings where only one party appears before the court, in this case, the peace officer. This means that the affected parties, usually the parties from whom the information is being gathered, are not present during the application for the order. This approach streamlines the application process and allows for swift action in situations where time is of the essence. The gathering of information in the context of terrorism investigations typically involves seeking information from telecommunications service providers, banks, and other similar entities. This information may include subscriber information, communication records, financial transactions, and other data that can help law enforcement agencies piece together evidence related to a terrorist act or plot. However, the use of this power has been subject to some criticism, with questions arising about the potential misuse of this power, leading to breaches of privacy and civil liberties. The concerns are predominantly around the lack of transparency that accompanies ex parte applications and the potential for abuse of these powers. To address these concerns, subsection (3) of section 83.28 provides that the judge may only grant an order if they are satisfied that the gathering of information is necessary, relevant, and proportional to the investigation. The judge must consider factors such as the seriousness of the offence, the privacy interests of the affected parties, and the potential impact on the administration of justice. Additionally, the peace officer must provide sufficient evidence to justify the need for the order. The balance between the need to maintain public safety and the protection of individual rights is crucial, and the use of such powers should be subject to scrutiny and oversight to ensure that they are not abused. Thus, the courts play a critical role in ensuring that the use of ex parte applications is lawful, necessary, and proportionate. In conclusion, section 83.28(2) of the Criminal Code of Canada serves as a fundamental tool in the fight against terrorism. While it grants peace officers the power to gather information to aid terrorism investigations, it also lays out strict parameters that must be adhered to. It is essential to ensure that these provisions are not used as a tool by law enforcement agencies to infringe on individual rights, but rather as a means to balance interests to promote public safety and security.
STRATEGY
Section 83.28(2) of the Criminal Code of Canada grants peace officers the power to apply for an ex parte order from a judge for the purpose of investigating terrorism offences. This power is necessary to prevent and investigate terrorist activities that can jeopardize public safety. However, there are several strategic considerations that both the authorities and the judiciary must keep in mind while dealing with this section of the Criminal Code. One strategic consideration is maintaining a balance between national security and individual rights. The authorities must ensure that they do not encroach on citizens' constitutional rights while carrying out their investigative duties. Any information gathered must be strictly necessary and proportionate to the investigation. The judge must consider the impact of the order on the individual's privacy rights before granting it. The judge must also ensure that the use of the order is necessary for the investigation of a terrorism offence. Another strategic consideration is the potential for abuse of the ex parte order. As the order is granted in the absence of the individual being investigated, it could be a tool for arbitrary exercise of power by the authorities. Authorities must, therefore, ensure that the order is used only in circumstances where it is necessary and proportionate to the investigative requirements. In addition, the order must be used in accordance with the law and not as a means to circumvent the due process of law. The authorities must also ensure that information obtained by the ex parte order is handled appropriately and in compliance with Canadian privacy laws. Another strategic consideration is the need to maintain public trust and confidence in the judiciary and law enforcement agencies. The judiciary must ensure that the ex parte process is transparent and accountable. This means that the process must be fully documented, and the judgments must be publicly available unless there is a compelling reason for secrecy. To address these strategic considerations, several strategies could be employed. One strategy is to conduct periodic reviews of the use of ex parte orders to ensure that they are being used appropriately. Conducting such reviews can identify areas of concern and provide an opportunity to improve the process. Another strategy is to provide education and training to peace officers and judges on the use of ex parte orders. Peace officers need to understand the criteria for obtaining the order and the limitations of its use. Educating judges about the requirements for granting the order can help ensure that the order is only granted in appropriate circumstances. Finally, mechanisms must be in place to ensure that those who have been the subject of an ex parte order have an opportunity to review the evidence that was obtained with the order. This is essential to maintain public trust and confidence in the judicial system and to ensure transparency and accountability. In conclusion, section 83.28(2) of the Criminal Code of Canada provides an essential tool for investigating terrorism offences. Still, it must be used cautiously and with careful regard for the rights of individuals. A balanced approach that takes into account the need for public safety while maintaining individual rights, along with transparency and accountability, can help ensure that the ex parte order process is used wisely and effectively.