Criminal Code of Canada - section 187(1.4) - Opening on order of trial judge

section 187(1.4)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to order the opening and examination of a sealed packet containing documents relevant to an authorization or evidence obtained pursuant to it, if the accused applies for such an order for trial preparation purposes.

SECTION WORDING

187(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if (a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and (b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.

EXPLANATION

Section 187(1.4) of the Criminal Code of Canada allows for the opening of a sealed packet containing authorization documents in certain circumstances. This sealed packet typically contains legally obtained evidence that was collected during an investigation that led to the issuance of the authorization. The section outlines the conditions necessary for a judge or provincial court judge to order the opening of the packet and the removal of its contents for examination. Firstly, the judge must have jurisdiction in the province where the authorization was given. Moreover, the judge must also be presiding over a trial in which a matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue. This means that the evidence contained in the packet is relevant to the trial at hand and could be used by either the prosecution or defense as evidence. In addition, the accused must apply for such an order for the purpose of consulting the documents to prepare for trial, which suggests that the accused may have the opportunity to access this evidence to prepare a defense. This element of the section highlights the importance of allowing the accused access to all evidence related to their case, as they have the right to a fair trial and the opportunity to mount a legitimate defense. Section 187(1.4) of the Criminal Code of Canada balances the interests of justice and fairness by providing access to potentially relevant evidence while also ensuring that strict procedures are followed in order to protect the integrity of legally obtained evidence. This section is essential in maintaining the impartiality and fairness of Canada's criminal justice system.

COMMENTARY

Section 187(1.4) of the Criminal Code of Canada grants judges and provincial court judges the power to order the opening and examination of sealed packets containing documents relevant to a criminal case. This provision is significant because it represents a key mechanism by which defendants can access evidence that has been obtained against them, and use that evidence to prepare their defense. The specific conditions under which an order to open a sealed packet may be granted are also important to consider. The first condition is that there must be an issue relevant to the authorization or evidence obtained pursuant to the authorization that is in question during the trial. In other words, the evidence in the sealed packet must be directly relevant to the charges being brought against the defendant. This implies that the evidence must have been obtained legally and must pertain to the specific case in question. The second condition is that the defendant must apply for the order to open the packet. This recognizes the importance of the defendant's ability to access relevant evidence for their defense. The right to a fair trial includes the right to access evidence that might exonerate or lessen the severity of charges against the defendant. In cases where the defendant is seeking an order to open a sealed packet, it is because they believe that the evidence contained therein is relevant to their defense. The purpose of the order, then, is to allow the defendant to review and copy the contents of the sealed packet so that they can prepare their case effectively. While the provision in Section 187(1.4) is critical to ensuring due process in criminal trials, it is not without its criticisms. One concern is that the provision could be abused or used inappropriately. For example, prosecutors may attempt to include irrelevant information in a sealed packet in order to disrupt the defendant's legal team's preparation. There is also the potential for information contained in the sealed packet to leak outside of the authorized individuals who have been granted access to it, leading to legal and ethical concerns regarding the protection of personal information. Nevertheless, Section 187(1.4) is an important legal provision that reaffirms the importance of due process in criminal cases. It recognizes the fundamental importance of the defendant's right to access evidence that is relevant to their case, and ensures that they are given a fair opportunity to prepare their defense. The provision helps balance the power dynamic between the prosecution and defense, and strengthens the integrity of the Canadian legal system.

STRATEGY

Section 187(1.4) of the Criminal Code of Canada provides a mechanism for an accused person to access and examine documents that were obtained through the use of a wiretap authorization. This section is particularly important in cases where the evidence obtained through wiretapping is in issue at trial because it allows the accused to have access to the same information that the prosecution has in order to prepare their defense. Some strategic considerations when dealing with this section of the Criminal Code include: 1. Timing: It is important to consider the timing of the application for access to the sealed packet. This is because the judge or provincial court judge can only order the packet to be opened and its contents removed if it is relevant to the authorization or to any evidence obtained through the authorization and is in issue in the trial, and if the accused applies for such an order for the purpose of consulting the documents to prepare for trial. Therefore, it may be necessary to apply for access to the sealed packet early in the trial process. 2. Scope: The accused must demonstrate that they need to access the sealed packet for the purpose of consulting the documents to prepare for trial. It is important to carefully consider the scope of the request and ensure that it is narrowly tailored to the needs of the accused. This may involve identifying specific documents or portions of documents that are particularly relevant to the defense. 3. Legal arguments: There may be legal arguments that can be made in support of an application for access to the sealed packet. For example, the accused may argue that the documents are necessary to make full answer and defense, or that the prosecution has an obligation to disclose all relevant information that may assist the defense. 4. Risk of disclosure: It is important to consider the risk that disclosure of the contents of the sealed packet may pose to the investigation or to national security. The judge or provincial court judge may impose conditions on the release of the documents to mitigate these risks. Some strategies that could be employed when dealing with this section of the Criminal Code include: 1. Seeking legal advice: Accessing the sealed packet can be a complex process and it is important to seek legal advice to ensure that the application is made in the most effective way possible. 2. Filing a detailed application: The accused should file a detailed application that sets out the reasons for seeking access to the sealed packet and the specific documents that are needed to prepare the defense. This will make it easier for the judge or provincial court judge to make a decision. 3. Making legal arguments: The accused should consider making legal arguments in support of their application to access the sealed packet. This may involve identifying legal principles that support the right to access the information or arguing that the disclosure of the information is necessary to ensure a fair trial. 4. Considering the risks: The accused should carefully consider the risks associated with accessing the sealed packet and take steps to mitigate those risks. This may involve proposing conditions on the release of the information or demonstrating how the information will be used in a way that does not compromise national security or ongoing investigations.