INTRODUCTION AND BRIEF DESCRIPTION
Persons named in an order must answer questions and produce items, but can refuse if it would disclose information protected by law.
SECTION WORDING
83.28 (8) A person named in an order made under subsection (4) shall answer questions put to them by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to privilege or to disclosure of information.
EXPLANATION
Section 83.28(8) of the Criminal Code of Canada outlines the obligations of a person who has been named in an order made under subsection (4) of the same section. This section deals with the investigative procedures surrounding terrorism offences, especially those pertaining to securing and using intelligence-related evidence. Subsection (4) of Section 83.28 allows for the issuance of an order compelling a person to provide information or to produce specific things that may be related to an investigation of terrorism. A person who is named in such an order is usually someone who is believed to have information relevant to the investigation, or who possesses something crucial to the investigation. Section 83.28(8) requires the named person to cooperate with the Attorney General or an agent of the Attorney General by answering questions and producing any items ordered by the presiding judge. However, the named person may refuse to answer a question or produce a thing if doing so would breach a privilege or violate any law relating to the disclosure of information. A privilege may include lawyer-client privilege, spousal privilege, or any other type of privilege that may protect certain types of confidential information. The law relating to disclosure of information refers to legislation that places restrictions on the sharing of certain types of information, such as personal or private information. The purpose of this section is to maintain a delicate balance between the investigation of serious offences related to terrorism and the protection of certain liberties and freedoms of the citizens. By allowing an individual to refuse to disclose information that is protected by law, this section recognizes and upholds the right to privacy and protection of confidential information. At the same time, it ensures that investigations related to terrorism are not impeded by uncooperative individuals who possess essential information.
COMMENTARY
Section 83.28(8) of the Criminal Code of Canada has significant implications for individuals who are named in an order made under subsection (4). This provision requires these individuals to answer questions put to them by the Attorney General or the Attorney General's agent and to produce things that they have been ordered to bring. If they refuse to answer a question or produce a thing, they may do so if the information they would disclose is protected by any law relating to privilege or to the disclosure of information. This provision is designed to facilitate the investigation and prosecution of terrorism offences in Canada by giving the Attorney General broad powers to compel individuals to provide information and produce evidence. It is part of the legal framework that has been put in place to strengthen Canada's ability to prevent and respond to terrorism. However, this provision also raises significant concerns about the protection of individual rights and freedoms. The ability of the Attorney General to compel individuals to answer questions and produce evidence without a warrant or other judicial oversight raises questions about the potential for abuse of power. There are also concerns about the potential for this provision to be used in a discriminatory or arbitrary manner. It is important to ensure that these powers are only used in a manner that is consistent with Canada's legal and constitutional framework, including the Canadian Charter of Rights and Freedoms. One potential safeguard against abuse of power is the provision that allows individuals to refuse to answer a question or produce evidence if doing so would disclose information that is protected by any law relating to privilege or to the disclosure of information. This provision recognizes that individuals have a right to protect certain types of information, such as confidential communications between lawyers and clients or information protected by the principle of solicitor-client privilege. However, this provision may not be sufficient to protect individual rights and freedoms in all cases. For example, there may be situations where the information that an individual is being asked to disclose is not protected by any law relating to privilege or to the disclosure of information, but is nonetheless highly sensitive or personal in nature. In these cases, it is important to ensure that the individual's rights and freedoms are protected and that they are not compelled to disclose information that could harm them or others. In conclusion, Section 83.28(8) of the Criminal Code of Canada is an important provision that gives the Attorney General broad powers to compel individuals to provide information and produce evidence in the context of terrorism investigations and prosecutions. While this provision is designed to strengthen Canada's ability to prevent and respond to terrorism, it also raises significant concerns about the protection of individual rights and freedoms. It is important to ensure that these powers are only used in a manner that is consistent with Canada's legal and constitutional framework, and that safeguards are in place to protect individual rights and freedoms.
STRATEGY
Section 83.28(8) of the Criminal Code of Canada is an important provision that grants significant powers to law enforcement agencies investigating terrorism-related offenses. The section empowers the Attorney General or their agent to question individuals named in an order under subsection (4) of the same section and to demand the production of things they were ordered to bring. However, the section also provides individuals with the ability to refuse to answer a question or produce a thing if doing so would violate their privilege or the disclosure of information. In this context, some important strategic considerations need to be made when dealing with this section of the Criminal Code, and several strategies can be employed to maximize the benefits of this provision while minimizing its potential drawbacks. One strategic consideration is the potential for overreach and abuse of power by law enforcement agencies. The provision gives wide discretion to the Attorney General and their agents to demand information and production of things related to terrorism-related offenses. However, this power may be abused if there are no adequate safeguards to prevent harassment, coercion, or the misuse of sensitive information. Therefore, it is essential to ensure that the provision is used judiciously, only when there is a reasonable suspicion of terrorist activities, and under strict judicial oversight to prevent abuse of power. Another strategic consideration is the possibility of violating the principles of fundamental justice, such as the right to fair trial, presumption of innocence, and protection against self-incrimination. Since the provision compels individuals to answer questions and produce evidence, there is a potential for violating their Charter rights, especially if the proceedings are not conducted fairly or transparently. Therefore, it is important to ensure that individuals named in the order are afforded due process and have access to legal representation to protect their rights. Another strategic consideration is the potential impact on national security. The provision aims to enhance national security by enabling law enforcement agencies to gather and act on information related to terrorist activities. However, disclosing sensitive information could also compromise national security if not handled carefully. Therefore, it is essential to balance the need for information gathering with the need to protect national security and prevent the inadvertent disclosure of sensitive information. Regarding strategies that could be employed, one approach is to ensure that the provision is used only when necessary and proportionate. This could involve developing guidelines for the use of the provision, setting out clear criteria for its application, and ensuring that there are sufficient checks and balances to prevent abuse of power. Another strategy is to ensure that individuals named in the order are afforded due process and have access to legal representation. This could involve developing protocols for how individuals are notified of the order and how they can respond, ensuring that they have access to legal representation, and providing adequate safeguards to protect their rights. Another strategy is to ensure that sensitive information remains confidential and is only disclosed when necessary. This could involve developing procedures for handling sensitive information, such as limiting the number of people who have access to it, using secure communication channels, and ensuring that the information is only shared on a need-to-know basis. In conclusion, Section 83.28(8) of the Criminal Code of Canada is a critical provision that empowers law enforcement agencies to gather information related to terrorism-related offenses. However, it is also essential to balance the need for information gathering with the need to protect individual rights and national security. Strategic considerations, such as ensuring due process and access to legal representation, developing guidelines for the use of the provision, and protecting sensitive information, can help to ensure that this provision is used judiciously and effectively.