INTRODUCTION AND BRIEF DESCRIPTION
This section allows a judge to give further authorization for covert removal of electronic devices after the original authorization with certain conditions and for a specified period of not more than 60 days.
SECTION WORDING
186(5.2) On an ex parte application, in writing, supported by affidavit, the judge who gave an authorization referred to in subsection (5.1) or any other judge having jurisdiction to give such an authorization may give a further authorization for the covert removal of the electro-magnetic, acoustic, mechanical or other device after the expiry of the original authorization (a) under any terms or conditions that the judge considers advisable in the public interest; and (b) during any specified period of not more than sixty days.
EXPLANATION
Section 186(5.2) of the Criminal Code of Canada outlines the provisions for covert removal of electronic devices following authorization under section 186(5.1). This section applies in situations where law enforcement agencies are authorized to install such devices on a person or property through a warrant or court order. Under this section, judges who gave the initial authorization or any other judge with the jurisdiction to do the same, may give a further authorization for the removal of the device in writing, and supported by affidavit, without the knowledge of the person being monitored. This is known as an ex parte application. The judge may grant the authorization for a specified period of not more than sixty days and may impose any terms or conditions that they consider necessary in the public interest. The covert removal of electronic devices may be necessary in certain situations where the presence of such devices could compromise an investigation or create a threat to public safety. However, the use of such devices is subject to strict legal guidelines to ensure that the privacy rights of citizens are not being violated. The use of electronic surveillance in criminal investigations is highly regulated in Canada, and law enforcement agencies must adhere to strict guidelines to ensure that they are acting within the boundaries of the law. Section 186(5.2) of the Criminal Code of Canada provides a legal framework for the covert removal of electronic devices and ensures that such actions are only taken when necessary and in the public interest.
COMMENTARY
Section 186(5.2) of the Criminal Code of Canada is a provision that allows for the covert removal of electronic surveillance devices in certain circumstances. The provision applies when a judge has already given authorization for the use of such devices, and it allows for a further authorization to be granted for their removal after the expiry of the initial authorization. The provision is intended to provide law enforcement with additional tools to combat serious crimes, such as organized crime and terrorism. Electronic surveillance can be a highly effective way to gather evidence of criminal activity, but it can also be intrusive and potentially infringe on individuals' privacy rights. Section 186(5.2) seeks to balance these competing interests by allowing for the covert removal of surveillance devices, while still requiring judicial oversight. To obtain a further authorization for covert removal under this provision, law enforcement must make an ex parte application in writing and supported by affidavit. This means that the application is made without the presence of the other party or parties affected by the surveillance. The judge who gave the initial authorization or any other judge with jurisdiction may grant the further authorization, subject to certain conditions. These conditions include that the authorization must be in the public interest and that it can only be granted for a specified period of not more than sixty days. This helps ensure that the authorization is proportionate to the seriousness of the crime being investigated and that it does not continue indefinitely. Additionally, the judge may impose any other terms or conditions that they consider advisable to balance the public interest and privacy interests. Overall, section 186(5.2) is a provision that seeks to strike a balance between the privacy rights of individuals and the public interest in investigating serious crime. It provides law enforcement with an additional tool to gather evidence through electronic surveillance, while also ensuring that judicial oversight is maintained. As with any provision that may affect privacy rights, it is important that it is used only in appropriate circumstances and with sufficient safeguards to protect individuals' rights.
STRATEGY
Section 186(5.2) of the Criminal Code of Canada provides law enforcement agencies with a powerful tool to gather evidence in situations where other investigative techniques may not be feasible. This section gives judges the power to give a further authorization for the covert removal of electronic surveillance devices after the expiry of the original authorization. However, the use of this section requires careful consideration of various strategic factors. The first strategic consideration when dealing with Section 186(5.2) is the need to ensure that the application for further authorization is done in accordance with the law. The section requires that the application be supported by an affidavit and made on an ex parte basis. This means that the application must be made in writing and without notice to the other parties involved. The affidavit must contain sufficient details about the original authorization and the need for a further authorization. Another critical strategic consideration is the need to justify the public interest test. The section allows judges to give a further authorization only if it is in the public interest. This means that there must be a compelling reason why the continued use of the surveillance device is necessary. The affidavit must provide sufficient details about the ongoing investigation and how the continued use of the surveillance device will assist in gathering evidence. Failure to meet this test may result in the court denying the application, leading to the loss of valuable evidence. Timing is another strategic consideration when dealing with Section 186(5.2). The section allows judges to give a further authorization for a period of not more than sixty days. This means that law enforcement agencies must plan their investigation carefully to ensure that they can gather the necessary evidence within the sixty-day period. Failure to do so may result in the court denying any further application for authorization, leading to the loss of valuable evidence. The nature of the surveillance device is another strategic consideration when dealing with Section 186(5.2). The section allows for the covert removal of electro-magnetic, acoustic, mechanical, or other devices. This means that law enforcement agencies must choose the type of device that is likely to gather the best evidence for the investigation. Failure to do so may result in the collection of irrelevant or insufficient evidence, leading to the loss of valuable investigative resources. In conclusion, Section 186(5.2) of the Criminal Code of Canada provides law enforcement agencies with a powerful tool to gather evidence in certain investigations. However, the use of this section requires careful consideration of various strategic factors. Law enforcement agencies must ensure that they comply with the law, justify the public interest test, plan their investigation carefully, and choose the appropriate type of surveillance device. Failure to do so may result in the loss of valuable evidence and a failed investigation.