section 162(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section exempts peace officers conducting activities under a warrant from certain provisions in Paragraphs 1(a) and (b).

SECTION WORDING

162(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

EXPLANATION

Section 162(3) of the Criminal Code of Canada exempts peace officers from some of the restrictions imposed by paragraphs (1)(a) and (b) of the same section. These paragraphs prohibit the making, possession, and distribution of voyeuristic recordings of another person, whether they were made with their consent or not. The exemption provided to peace officers is limited to situations where they are carrying out activities authorized by a warrant issued under Section 487.01 of the Criminal Code. Section 487.01 allows for the issuance of a warrant where there are reasonable grounds to believe that an offence has been or is about to be committed, and the warrant is necessary for an investigation or prosecution. In such cases, peace officers are authorized to search for and seize any recording or data that may be related to the offence in question, including voyeuristic recordings that would otherwise be prohibited under Section 162(1)(a) and (b). The exemption provided by Section 162(3) for peace officers is necessary to allow them to carry out their investigative duties without fear of being charged with voyeurism offences. It is important, however, that the exemption is limited to situations where a warrant has been issued, and that the peace officer only carries out the activities authorized by that warrant. This ensures that the privacy rights of individuals are respected while still allowing for effective law enforcement.

COMMENTARY

Section 162(3) of the Criminal Code of Canada provides an exception to the general criminal prohibition against voyeurism in paragraphs (1)(a) and (b) in cases when peace officers are carrying out their duties under the authority of a warrant issued under section 487.01. This provision raises important questions and concerns about the scope of police powers, privacy rights, and the limits of lawful surveillance. Paragraphs (1)(a) and (b) of section 162 make it illegal to surreptitiously observe or record another person in circumstances where that person has a reasonable expectation of privacy, where the observation or recording is done for a sexual purpose, and where the person observed or recorded is in circumstances where they would not reasonably expect to be observed or recorded. These provisions protect individuals from being victimized by surreptitious voyeuristic behaviour, which can be humiliating, degrading and abusive. However, section 162(3) carves out an exception to this prohibition when peace officers are carrying out surveillance activities authorized by a warrant issued under section 487.01. This means that police officers who have obtained a warrant can secretly observe or record individuals for a sexual purpose without breaking the law. While this exception acknowledges and respects the fact that police officers sometimes need to undertake surveillance as part of their legitimate law enforcement duties, it raises significant concerns about the extent of these powers and the potential for individuals' privacy rights to be violated. The ability of police officers to undertake lawful surveillance and to obtain warrants for this purpose is an important aspect of maintaining public safety, preventing crime, and bringing criminals to justice. However, this power must be exercised in a manner that respects the fundamental rights and freedoms of Canadians, including the right to privacy and the right to be free from unreasonable search and seizure. The fact that police officers are exempt from the voyeurism provisions in limited circumstances under certain conditions shows that lawful surveillance is an important part of maintaining a safe and just society. However, the provision also raises important questions about the scope of police powers and the limits of lawful surveillance. One significant concern is that this exception could be abused by police officers who are motivated by personal interests rather than legitimate law enforcement concerns. While the requirement for a warrant under section 487.01 provides some judicial oversight over police surveillance activities, the potential for officers to misuse this power cannot be ignored. Any infringement on privacy rights through voyeuristic behaviour must be undertaken with extreme care and attention to the principles of necessity, proportionality, and legality. Additionally, as technology becomes more advanced, the potential for abuse of these powers by law enforcement agencies becomes even greater. In conclusion, section 162(3) of the Criminal Code of Canada is a provision that acknowledges the legitimate need for police officers to undertake surveillance activities as part of their lawful duties. However, this provision also raises important questions and concerns about the scope of police powers, the limits of lawful surveillance, and the privacy rights of Canadians. Maintaining a balance between the legitimate needs of law enforcement and the protection of individual rights and freedoms is the key to ensuring a just and safe society.

STRATEGY

Section 162(3) of the Criminal Code of Canada is a critical provision in ensuring the integrity of criminal investigations while balancing the rights of individuals. It provides an exemption for peace officers who are carrying out activities referred to in paragraphs (1)(a) and (b) but only under the authority of a warrant issued under section 487.01. In this context, paragraph (1)(a) refers to the interception of private communications, while paragraph (1)(b) provides an exemption for the seizure of private communications. The use of this provision can present strategic considerations for law enforcement agencies, particularly in regard to the management of investigations, the use of resources, and the protection of civil liberties. Some of the strategies that could be employed with regard to Section 162(3) of the Criminal Code of Canada include: 1. Ensuring Compliance with Warrant and Charter Requirements: While the exemption provided under Section 162(3) is broad, it is essential that peace officers comply with all warrant and Charter requirements. These requirements include obtaining judicial authorization, clearly articulating the activities to be carried out under the warrant, and ensuring that the search or interception is carried out in a reasonable and minimally intrusive manner. 2. Managing Prioritization: The use of Section 162(3) should be considered within the context of investigative priorities. For example, in some investigations, the interception of private communications may be a crucial tool in successfully disrupting criminal activity. In contrast, in other investigations, the use of this provision may pose a lower priority, both in terms of potential evidence and resource expenditure. 3. Balancing Public Interest and Civil Liberties: In applying Section 162(3), peace officers must balance the public interest in successful investigations against the protection of civil liberties. This responsibility involves ensuring that the activities carried out under the warrant are proportionate to the investigative objective. 4. Transparency and Accountability: Law enforcement agencies should maintain high levels of transparency and accountability in the use of Section 162(3), including adhering to internal policies and procedures and documenting all activities carried out under the warrant. 5. Professional Training and Development: The use of Section 162(3) requires specialized training and expertise. Law enforcement agencies should invest in professional development and training programs to ensure that their peace officers are equipped with the necessary competencies to use the provision in a responsible, professional, and effective manner. In conclusion, Section 162(3) of the Criminal Code of Canada provides a crucial exemption for peace officers, ensuring that they can effectively carry out their duties while balancing the need to protect civil liberties. The use of this provision requires a strategic approach to ensure compliance with warrant and Charter requirements, prioritize resources, balance public interest and civil liberties, maintain transparency and accountability, and invest in professional development and training. Ultimately, the careful application of Section 162(3) can make a crucial contribution to successful investigations while upholding the rule of law.