INTRODUCTION AND BRIEF DESCRIPTION
Applicants can make a written statement instead of swearing an oath for certain purposes.
SECTION WORDING
184.3(5) An applicant who uses a means of telecommunication that produces a writing may, instead of swearing an oath for the purposes of subsection (2), make a statement in writing stating that all matters contained in the application are true to the knowledge or belief of the applicant and such a statement shall be deemed to be a statement made under oath.
EXPLANATION
Section 184.3(5) of the Criminal Code of Canada allows an applicant to make a statement in writing instead of swearing an oath for the purposes of subsection (2). The applicant must use a means of telecommunication that produces a writing, such as email or fax, to submit their written statement. If the applicant chooses to make a written statement, they must confirm that all matters contained in the application are true to the knowledge or belief of the applicant. This statement will be deemed to be a statement made under oath. Section 184.3 deals with interception of communications. In certain circumstances, law enforcement agencies may intercept communications in order to obtain evidence for an investigation or criminal prosecution. In order to do so, they must obtain a warrant from a judge or justice of the peace. Section 184.3(2) requires that the applicant for a warrant must swear an oath to the facts contained in the application. This provision allows applicants to submit written statements instead of appearing in person to swear an oath. This can be particularly useful in situations where the applicant is not located near the court or where time is of the essence. By allowing applicants to make a written statement, the judicial process can be expedited while still ensuring the accuracy and truthfulness of the information provided. Overall, section 184.3(5) provides flexibility in the application process for interception of communications warrants, while still maintaining the integrity of the judicial process.
COMMENTARY
Section 184.3(5) of the Criminal Code of Canada is a provision that permits an applicant to make a statement in writing instead of swearing under oath. This statement must contain a declaration that all the information contained in the application is true to the best of the applicant's knowledge or belief. This provision applies to any application made under section 184.2 of the Criminal Code. Section 184.2 deals with orders that permit police to intercept private communications in certain circumstances. The section was added to the Criminal Code in 1993 as part of the Bill C-72 amendments. The amendments were introduced to combat organized crime, terrorism, and other serious crimes that use advanced technology to communicate and coordinate their activities. Section 184.2 allows law enforcement agencies to obtain an intercept order from a judge to intercept private communications in such cases. The provision in subsection 184.3(5) makes it easier for applicants to make an application for an intercept order. It allows them to make a statement in writing instead of having to swear an oath in the presence of a commissioner for oaths or take an affirmation under section 9 of the Canada Evidence Act. This saves time, reduces costs, and removes the need for the applicant to travel to a commissioner's office or court. It also streamlines the process for law enforcement agencies, as they can receive applications electronically and quickly. However, it is important to note that making a false statement in an application for an intercept order is a criminal offense. Section 184.4 of the Criminal Code provides that anyone who knowingly or recklessly makes a false statement in an application for an intercept order can be charged with an indictable offense. The provision sets out the penalties for such offenses, which range from imprisonment for up to five years to a fine of $1 million. In summary, section 184.3(5) of the Criminal Code is a provision that allows applicants to make a statement in writing instead of swearing an oath for the purposes of applying for an intercept order. This provision streamlines the process for applicants and law enforcement agencies and saves time and costs. However, it is important to remember that making a false statement in an application for an intercept order is a criminal offense and is subject to serious penalties.
STRATEGY
Section 184.3(5) of the Criminal Code of Canada provides an alternative to swearing an oath for the purpose of obtaining a production order for electronic evidence, such as text messages, email communications, and other digital data. This provision allows applicants to make a statement in writing declaring all matters contained in the application as true, which will be treated as a statement made under oath. This alternative process can be considered when strategic considerations are taken into account. One of the key strategic considerations when dealing with this section of the Criminal Code is the timing of the application. Seeking an order for electronic evidence is a delicate matter that should be done with caution. The applicant must ensure that they have sufficient evidence to support their request for a production order, and that they are doing so within the limits of the law. It is important to note that the production order must be sought only in cases where there is reasonable ground to believe that an offense has been committed, and where the evidence sought is likely to be found on the electronic device(s) identified in the application. Another strategic consideration when dealing with this section of the Criminal Code is the manner of presenting the evidence to the court. It is important to present a clear and concise statement of the issues that are relevant to the application, and to make the evidence as persuasive as possible. Careful attention should be given to formatting and the content of the statement, ensuring it meets the requirements of the rules of evidence and Criminal Code. The statement must demonstrate the veracity of the applicant's claim and the reasonableness of the production order. Strategies that could be employed in presenting a statement under section 184.3(5) of the Criminal Code include thorough preparation, attention to detail, and clarity of presentation. The statement should make a strong case for the production order by providing factual detail or specific examples to support the claim. The statement should be comprehensive and concise, setting out all the relevant details of the case, and avoiding ambiguity or vagueness. In addition, legal counsel can be recommended to help make critical strategic decisions about the presentation of the evidence before a court. In some cases, counsel may be able to identify weaknesses in the case early on and provide advice on how to strengthen the application. Alternatively, they may be able to advise on alternative ways of gathering evidence that may be more convincing in persuading the court to grant a production order. Lastly, when utilizing this provision, it is important to comply fully with the Criminal Code of Canada and the requirements imposed by the court. This means following proper court procedures, filing all necessary documents and evidence on time and within the limited time frame provided, and adhering to the court's rules of evidence. In conclusion, when dealing with Section 184.3(5) of the Criminal Code of Canada, strategic considerations such as timing, the manner of the statement's presentation, proper legal counsel and full compliance with the law should be taken into account. A careful and thorough approach to presenting electronic evidence to a court can represent a vital and necessary step in the pursuit of justice.