INTRODUCTION AND BRIEF DESCRIPTION
Applications for authorization must be made under oath with a statement including certain matters and the reason why it is impracticable to appear before a judge.
SECTION WORDING
184.3(2) An application for an authorization made under this section shall be on oath and shall be accompanied by a statement that includes the matters referred to in paragraphs 184.2(2)(a) to (e) and that states the circumstances that make it impracticable for the applicant to appear personally before a judge.
EXPLANATION
Section 184.3(2) of the Criminal Code of Canada establishes the requirement for individuals seeking authorization for a wiretap to appear before a judge and provide evidence under oath. The section imposes strict safeguards, which must be followed before authorizing wiretapping, to ensure that the accused receives a fair trial and that privacy rights are not violated without justification. To obtain an authorization for wiretapping, an applicant must submit an application that includes all relevant information and sworn testimony that outlines the necessity for this action. The application must detail the specific investigative objectives, the type of communication to be intercepted, and the timeframe for which the authorization is required. The statement must also address the urgency of the case and the impracticability of the applicant attending to appear in person before a judge. The objective of this section is to prevent any potential misuse of wiretapping, ensuring that only individuals with a legitimate reason to access encrypted messages have the power to do so. This ensures that the sensitive information obtained is reliable and can be used in court as legitimate evidence - not merely hearsay. Overall, the provisions in Section 184.3(2) of the Criminal Code of Canada help ensure that all parties are held responsible when utilizing wiretapping activities. While the section is limited to specific contexts where wiretapping may be required, it serves as a critical safeguard promoting accountability and transparency in law enforcement activities.
COMMENTARY
Section 184.3(2) of the Criminal Code of Canada deals with the authorization process of surveillance activities where there are reasonable grounds to suspect that a particular person, group, or organization is involved in terrorist activities or poses a threat to national security. This section requires that an application for authorization of surveillance activities should be made in writing and under oath, detailing the circumstances that make it impracticable for the applicant to personally appear before a judge. The section stipulates that the application should include the matters referred to in paragraphs 184.2(2)(a) to (e). Paragraphs 184.2(2)(a) to (e) require that an applicant for the authorization of surveillance activities provide specific information such as the identity and address of the person or group to be targeted, the nature of the activity to be targeted, the type of surveillance expected, the duration of the surveillance, and any other information that may be relevant for the authorization request. The requirement that an application for authorization of surveillance activities be made under oath and in writing is important because it ensures that the applicant provides accurate and truthful information. This requirement also ensures that the authorization process is transparent, accountable, and subject to judicial oversight. By making the application under oath, the applicant is bound by law to provide complete and accurate information. The written application provides a documented record for the authorization process, which can be reviewed by the judiciary or other independent bodies. The second element of Section 184.3(2) requires that the applicant must state "the circumstances that make it impracticable for the applicant to appear personally before a judge." This provision recognizes the fact that authorization of surveillance activities under Section 184.2 is a serious matter that must be subject to judicial scrutiny. However, in some instances, it may not be practicable for the applicant to present the application personally before a judge due to the nature of the threat, the need for urgency, or logistical reasons. The provision can be interpreted to mean that the applicant must provide compelling reasons why personal appearance before a judge is impracticable. The reasons could be related to the safety or security of the applicant, the urgency of the situation, or any other practical reason that would make it difficult or impossible to present the application personally. The provision aims to balance the need for judicial oversight with the practicalities of law enforcement and national security operations. Overall, Section 184.3(2) of the Criminal Code of Canada serves to ensure that the authorization of surveillance activities is subject to judicial oversight, transparent, accountable, and conducted in accordance with the rule of law. This provision establishes procedural safeguards that protect the rights and freedoms of Canadians while recognizing the need to prevent and combat terrorism and threats to national security. It ensures that surveillance activities are lawful, necessary, and proportionate to the threat posed.
STRATEGY
Section 184.3(2) of the Criminal Code of Canada provides for wiretapping and interception of private communication under specific circumstances. This provision allows law enforcement agencies to obtain authorization from a judge to intercept private communications with the aim of preventing or investigating serious crimes. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. First, the applicant must ensure that the application for authorization is made on oath, which means that the information provided is true and accurate. Any false or misleading information could result in the application being denied, or the evidence obtained through the wiretap being excluded from court proceedings. Second, the applicant must accompany the application with a detailed statement that outlines the circumstances that make it impracticable for the applicant to appear personally before a judge. This statement should also include the matters referred to in paragraphs 184.2(2)(a) to (e), which outline the nature of the offence, the importance of the intercepted communication, and the likelihood of success. One key consideration is the reasonableness of the interception of private communication. The Supreme Court of Canada has made it clear that interceptions must be tailored to the specific objectives of the investigation, and any interference with privacy rights must be necessary and proportionate to the harm being prevented. Strategies that could be employed to ensure the success of an application for authorization under section 184.3(2) include providing detailed and specific information that outlines the urgency and importance of the interception. The applicant must demonstrate that other investigative measures have been considered and found to be insufficient to prevent or investigate the offence. It is also crucial to ensure that the application is made by a person with proper authority, such as a senior police officer or a prosecutor. This will help to instill confidence in the judge that the application is being made in good faith and is necessary to prevent or investigate a serious crime. In conclusion, section 184.3(2) of the Criminal Code of Canada provides a powerful tool for investigating serious crimes, but it is vital to exercise caution and diligence when making an application for authorization. By providing specific and accurate information, and demonstrating the necessity and proportionality of the interception, law enforcement agencies can obtain the authorization they need to prevent or investigate serious crimes while respecting privacy rights.