section 184.2(4)

INTRODUCTION AND BRIEF DESCRIPTION

Section 184.2(4) of the Criminal Code outlines the requirements for a valid authorization for intercepting private communications, including stating the offence, type of communication, identities of persons, and terms and conditions, with a maximum validity of sixty days.

SECTION WORDING

184.2(4) An authorization given under this section shall (a) state the offence in respect of which private communications may be intercepted; (b) state the type of private communication that may be intercepted; (c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used; (d) contain the terms and conditions that the judge considers advisable in the public interest; and (e) be valid for the period, not exceeding sixty days, set out therein.

EXPLANATION

Section 184.2(4) of the Criminal Code of Canada outlines the requirements for obtaining an authorization to intercept private communications. This section is important because it ensures that law enforcement agencies cannot simply intercept private communications without adequate legal justification. The section requires that an authorization must state the offence in respect of which private communications may be intercepted. This means that law enforcement must provide a specific reason for wanting to intercept private communications. For example, if they believe someone is planning a terrorist attack, they must state this as the reason for wanting to intercept private communications. The authorization must also state the type of private communication that may be intercepted. This means that law enforcement must specify whether they are looking to intercept phone calls, emails, text messages, or some other type of communication. The authorization must identify the persons, if known, whose private communications are to be intercepted. This means that law enforcement must have a specific target for their interception efforts. They cannot simply intercept the communications of anyone, but must have a suspicion that a particular individual or group is involved in criminal activity. The authorization must contain terms and conditions that the judge considers advisable in the public interest. This allows the judge to ensure that the interception is justified and necessary in the particular circumstances of the case. Finally, the authorization is only valid for a period of up to sixty days. This ensures that law enforcement does not have unlimited power to intercept private communications, but must justify the continuation of the interception on a regular basis. Overall, Section 184.2(4) is designed to ensure that law enforcement can only intercept private communications in specific circumstances, and with adequate legal justification. This helps to protect the privacy rights of Canadians while also allowing law enforcement to carry out their duties effectively.

COMMENTARY

Section 184.2(4) of the Criminal Code of Canada is a crucial piece of legislation as it governs the authorization for the interception of private communications. The section outlines the requirements that need to be met before a judge can grant authorization for the interception of private communications, ensuring that the right to privacy is not arbitrarily breached. The first requirement stated in the section is that the authorization must state the offence in respect to which private communications may be intercepted. This requirement ensures that there is a direct and specific link between the criminal offence and the interception of private communications. This ensures that only communications related to the specific crime being investigated are intercepted, preventing a wide-ranging and arbitrary invasion into the privacy of individuals. The section also requires that the authorization specifies the type of private communication that may be intercepted. This requirement ensures that only the specific type of communication that is germane to the offence being investigated is intercepted. This prevents excessive gathering of information and ensures that the interception of private communications is targeted and specific. Another requirement is that the authorization must state the identity of the persons whose private communications are to be intercepted. If the identity of those persons is known, this ensures that the people whose privacy is being breached are directly linked to the criminal investigation, and that the interception is not done randomly. The authorization must also generally describe the place at which private communications may be intercepted. This requirement ensures that the interception is not done randomly or arbitrary, but with specificity to the location, making sure that the authorized persons are captured. The manner of interception that may be used must also be generally described in the authorization. This requirement ensures that the interception is done in the associated manner that is appropriate to the needs of the investigation, and not in any other way that could be less intrusive. The authorization to intercept private communication must also contain the terms and conditions that the judge considers advisable in the public interest. This requirement ensures that the judge grants the authorization after considering the public interest. Such interests would include ensuring justice is served and public safety. The authorization must also be valid for the period set out, not exceeding 60 days, ensuring that the interception is not excessive and that the surveillance is timely and specifically targeted. In conclusion, Section 184.2(4) of the Criminal Code of Canada safeguards the privacy of individuals by setting requirements that must be met before private communications can be intercepted. These requirements are aimed at ensuring that interception of private communication is done with specificity and under circumstances that necessitate the invasion of privacy, as the court deems is in the public interest. This ensures that the right to privacy is respected even as criminal investigations are conducted, balancing the need for law enforcement with individual rights.

STRATEGY

Section 184.2(4) of the Criminal Code of Canada provides the legal framework for intercepting private communications in criminal investigations. This section sets out specific requirements that must be met before private communications can be lawfully intercepted, including the need for an authorization from a judge. However, even when these requirements are met, there are strategic considerations that law enforcement agencies and prosecutors must take into account when dealing with intercept evidence. One key strategic consideration is the potential impact on the investigation and subsequent prosecution if the intercepted evidence is excluded at trial. Intercept evidence has the potential to be highly incriminating, but it is also highly invasive of privacy rights. If the evidence is excluded at trial because the authorization was not properly obtained or because the evidence was not collected in accordance with the terms of the authorization, the entire case may be jeopardized. As such, it is important that law enforcement agencies and prosecutors carefully follow the requirements set out in section 184.2(4) to minimize the risk of exclusion. Another strategic consideration is the potential impact on public perception of the investigation and subsequent prosecution if it becomes known that intercept evidence was used. Intercept evidence is often viewed as highly invasive, and there is a risk that the public will view the investigation and prosecution as overreaching and unjustified if intercept evidence is used. As such, law enforcement agencies and prosecutors must carefully consider whether the potential benefits of intercept evidence outweigh the potential risks of using it. A third strategic consideration is the potential impact on the privacy rights of individuals whose communications are intercepted. The privacy interests at stake in intercept cases are significant, and there is a risk that the interception of private communications may be seen as a violation of those rights. To mitigate this risk, law enforcement agencies and prosecutors must ensure that they are only intercepting communications that are necessary for the investigation and that they are doing so in accordance with the terms of the authorization. Strategies that could be employed to address these strategic considerations include: 1. Limiting the scope of intercepts to the specific communications that are necessary for the investigation and ensuring that intercepts are only authorized for a limited period of time. 2. Ensuring that intercepts are conducted in a manner that minimizes the risk of interception of irrelevant or privileged communications. 3. Educating the public about the legal framework for intercepts and the safeguards in place to protect privacy rights. 4. Working to build public trust by demonstrating that intercepts are only used when necessary to protect public safety and that they are conducted in accordance with the law. In sum, section 184.2(4) of the Criminal Code of Canada is a powerful tool for law enforcement agencies and prosecutors conducting criminal investigations. However, the use of intercept evidence must be carefully managed to ensure that it is used in a manner that is both legally sound and strategically effective. By considering the potential risks and benefits of using intercept evidence, and by employing strategies to minimize those risks and maximize those benefits, law enforcement agencies and prosecutors can ensure that intercept evidence is used responsibly and effectively.