Criminal Code of Canada - section 187(1.1) - Exception

section 187(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions under which an authorization given under Part VI of the Criminal Code of Canada must be included in the packet.

SECTION WORDING

187(1.1) An authorization given under this Part need not be placed in the packet except where, pursuant to subsection 184.3(7) or (8), the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the facsimile remains with the applicant.

EXPLANATION

Section 187(1.1) of the Criminal Code of Canada is a provision that relates to the use of search warrants. This section states that an authorization, which is essentially a type of warrant, does not need to be physically placed in the packet of documents related to the search, unless the original authorization is being held by the judge. In that case, the judge must place the original authorization in the packet, and a facsimile may be given to the applicant. The context of this provision is that it sets out a practical procedure for handling authorizations in cases where a search warrant has been issued. The authorization, or warrant, is an official document that authorizes law enforcement officials to search a particular location or seize evidence. The warrant may be obtained by submitting an application to a judge, who will review the evidence and determine whether there are reasonable grounds to issue the warrant. Once a warrant is issued, law enforcement officials must execute the warrant by carrying out the search or seizure. In doing so, they must comply with the terms of the warrant, which may place certain restrictions on what can be searched or seized, or how the search or seizure is to be conducted. The packet of documents related to the search or seizure may include various items, such as the warrant, the application for the warrant, and any supporting documents or evidence. Section 187(1.1) clarifies that the authorization, or warrant, does not need to be physically included in the packet in most cases, unless the original authorization is being held by the judge. This is a practical measure that helps to ensure that the authorization is not lost or misplaced, and that the search or seizure is conducted in accordance with the terms of the warrant.

COMMENTARY

Section 187(1.1) of the Criminal Code of Canada is a provision that involves the use of communication interception technology by law enforcement agencies. This section deals with the documentation process related to interception of private communication, in circumstances where law enforcement agencies are authorized to engage in such activity under Part VI of the Criminal Code. The provision states that an authorization given under Part VI of the Criminal Code need not be placed in the packet, except for situations where the original authorization is in the hands of the judge, in which case the judge must place it in the packet, and the facsimile remains with the applicant. In other words, if the original authorization is with the judge and a facsimile has been provided to the law enforcement agency or applicant, the facsimile can be used as evidence of authorization, and the original can be kept by the judge. The requirement to have the authorizing document in the hands of the judge is crucial, as it ensures that there is accountability and oversight over the use of intrusive surveillance measures. By having the judge responsible for keeping the original authorizing document, the risk of the document being lost or tampered with is reduced. Furthermore, it enables the judge to review the authorization at a later stage. This provides an additional layer of protection for individuals who may be subject to interception of their private communications. The requirement to have the facsimile of the authorization in the hands of the law enforcement agency or applicant is also significant. It enables the authorized party to carry out the interception activity as specified in the authorization, without the need to have the original authorization document. This means that the authorized party can act more quickly and efficiently in carrying out their duties. When any intrusion is made into the private communication of an individual, it is essential to ensure that such activity is authorized by proper legal means. Section 187(1.1) of the Criminal Code of Canada recognizes the importance of having proper documentation to authorize such intrusive activities. It aligns with the principles of transparency and accountability, ensuring that the legal system provides oversight in the use of communication interception technology by law enforcement agencies. The provision also highlights the necessity for law enforcement agencies to ensure that they act within the bounds of the authorization provided. It provides a mechanism for the judge to review the interception activity that took place under the authorization and assess whether it was lawfully authorized or not. Overall, Section 187(1.1) plays an important role in balancing the interests of law enforcement agencies with the privacy rights of individuals. It recognizes the importance of proper documentation and judicial oversight in the use of communication interception technology in Canada.

STRATEGY

Section 187(1.1) of the Criminal Code of Canada pertains to the authorization of wiretapping and other forms of electronic surveillance, which is subject to strict requirements and procedures to safeguard individual rights and freedoms. When dealing with this section of the Criminal Code, there are several strategic considerations that must be taken into account to ensure compliance with legal and ethical standards, as well as to achieve the desired outcomes of the investigation or prosecution. One of the primary strategic considerations is the justification for the surveillance, which must be based on reasonable grounds to suspect that an offence has been or is about to be committed, and that the surveillance is necessary for the investigation or prosecution of the offence. This requires a careful balancing of the public interest in preventing and detecting crime against the individual right to privacy and freedom from unreasonable search and seizure. Another strategic consideration is the suitability of the method and duration of the surveillance, which may vary depending on the type and severity of the offence, the nature and location of the target, and the availability of alternative means of evidence gathering. The use of wiretapping and other forms of surveillance must be proportionate to the risk and impact of the offence, and must minimize the intrusion on the privacy of other persons who may be inadvertently monitored. A further strategic consideration is the reliability and admissibility of the evidence obtained through the surveillance, which may be subject to challenges on grounds such as authenticity, relevance, and breach of privacy or constitutional rights. The procedures for obtaining and using the evidence must be meticulously followed, including the requirement that the authorization be in writing and include specific details of the intercepted communications or transmissions. To address these and other strategic considerations when dealing with Section 187(1.1) of the Criminal Code of Canada, several strategies could be employed, including: 1. Conducting a thorough and objective analysis of the need and appropriateness of the surveillance based on legal, ethical, operational, and technological factors. 2. Obtaining the necessary expertise, resources, and collaboration from relevant authorities and stakeholders, such as legal advisors, law enforcement agencies, privacy commissioners, and telecommunications providers. 3. Following the prescribed procedures and requirements for obtaining and executing the surveillance, such as obtaining a court order or warrant, notifying the target, maintaining a strict chain of custody, and limiting access and dissemination of the evidence. 4. Documenting and auditing the entire process of the surveillance, including the justification, authorization, execution, and outcome, to ensure compliance and accountability. 5. Reviewing and updating the policies, practices, and training related to electronic surveillance on a regular basis to reflect changes in the legal, technological, and societal landscape. Overall, dealing with Section 187(1.1) of the Criminal Code of Canada requires a sophisticated and strategic approach that recognizes the complexity and sensitivity of electronic surveillance and the need to balance competing interests and values. By adopting the above strategies and other best practices, investigators and prosecutors can enhance the integrity, effectiveness, and credibility of their investigative and prosecution efforts while respecting the rights and dignity of all individuals involved.