section 188(1)

INTRODUCTION AND BRIEF DESCRIPTION

Section 188(1) allows for an ex parte application for authorization of interception of private communications in urgent situations.

SECTION WORDING

188(1) Notwithstanding section 185, an application made under that section for an authorization may be made ex parte to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 552, designated from time to time by the Chief Justice, by a peace officer specially designated in writing, by name or otherwise, for the purposes of this section by (a) the Minister of Public Safety and Emergency Preparedness, if the offence is one in respect of which proceedings, if any, may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or (b) the Attorney General of a province, in respect of any other offence in the province, if the urgency of the situation requires interception of private communications to commence before an authorization could, with reasonable diligence, be obtained under section 186.

EXPLANATION

Section 188(1) of the Criminal Code of Canada outlines the process for obtaining an ex parte application for an authorization to intercept private communications. This section provides that a member of law enforcement may make such an application to a judge of a superior court of criminal jurisdiction or a designated judge as defined in section 552. The application for the authorization can be made on an ex parte basis, meaning that the person whose communications are being intercepted is not present during the application process. The authorization can be requested by the Minister of Public Safety and Emergency Preparedness, if the offence is one that the government of Canada may pursue and that the Attorney General of Canada may conduct on its behalf. Alternatively, the Attorney General of a province may request the authorization for any other offence that occurs within their province if the urgency of the situation requires immediate interception of private communications before obtaining an authorization under section 186. Section 188(1) is an important provision in the Criminal Code of Canada as it sets out the process for obtaining an ex parte application for an authorization to intercept private communications in certain urgent situations. This section limits the circumstances in which such applications may be made, as they can only be requested for very specific offences and under certain conditions, such as when the urgency of the situation requires immediate action. Overall, Section 188(1) works to balance the need for effective law enforcement while protecting the privacy rights of individuals.

COMMENTARY

Section 188(1) of the Criminal Code of Canada is an important provision that allows for the interception of private communications in certain circumstances. This provision allows for an ex parte application to be made to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 for an authorization to intercept private communications. The application may be made by a peace officer who is specially designated in writing for this purpose by the Minister of Public Safety and Emergency Preparedness or the Attorney General of a province. The purpose of this provision is to allow for the interception of private communications in situations where there is an urgent need to do so, but where it may not be possible to obtain an authorization under section 186 of the Criminal Code with reasonable diligence. Section 186 sets out the process for obtaining an authorization to intercept private communications, but this process can be time-consuming, and in some cases, an urgent situation may require interception to commence immediately. Section 188(1) provides a framework for such situations, allowing for an ex parte application to be made to a judge for an authorization to intercept private communications. This application can be made by a peace officer who is specially designated for this purpose by the Minister of Public Safety and Emergency Preparedness or the Attorney General of a province. This allows for intercepting private communications to commence immediately where there is an urgent need to do so. However, it is important to note that this provision is not without its limitations. The authorization for interception of private communications obtained under section 188(1) is only valid for a maximum of 36 hours. This means that the authorization cannot be relied upon for longer than 36 hours, and any interception of private communications beyond this time limit would be unlawful. In addition, an application for an authorization under section 188(1) must be accompanied by an affidavit that sets out the grounds for interception of private communications. This affidavit must provide specific and detailed information about the urgency of the situation and the reasons why interception cannot be delayed until an authorization can be obtained under section 186 of the Criminal Code. This ensures that interception of private communications is only authorized in situations where there is a genuine and urgent need to do so. In conclusion, section 188(1) of the Criminal Code of Canada provides an important framework for intercepting private communications in situations of urgency where delay in obtaining an authorization under section 186 is not possible. However, this provision is subject to limitations to ensure that interception of private communications is only authorized in situations where there is a genuine and urgent need to do so, and that the authorization is not relied upon for longer than 36 hours.

STRATEGY

Section 188(1) of the Criminal Code of Canada contains provisions that allow for ex parte applications for authorizations to intercept private communications. These provisions are intended to facilitate the investigation and prosecution of serious offences by granting law enforcement agencies the ability to collect evidence that would otherwise be unavailable. Strategic Considerations One of the primary strategic considerations when dealing with Section 188(1) is the need to balance the interests of law enforcement with the privacy rights of individuals. This balance is critical in ensuring that the use of ex parte applications is not abused and that the interception of private communications is limited to situations where it is justified and necessary. Another key consideration is the urgency of the situation. The provisions of Section 188(1) are intended to be used in situations where an authorization cannot be obtained in a timely manner, and the interception of private communications is necessary to prevent the commission of a serious offence. Law enforcement agencies must, therefore, assess the urgency of the situation carefully and ensure that any ex parte application is filed promptly. Finally, law enforcement agencies must consider the potential impact of an ex parte application on the investigation and prosecution of an offence. Ex parte applications are often seen as controversial, and the use of these provisions may harm relationships with the community and could have an impact on the admissibility of evidence in court. Strategies One strategy that could be employed when dealing with Section 188(1) is to establish clear protocols for the use of ex parte applications. These protocols should ensure that the use of these provisions is limited to situations where it is necessary and that any application is filed promptly. Additionally, these protocols should establish clear guidelines for assessing the urgency of the situation and ensuring that any interception of private communications is proportionate to the harm that would be prevented. Another strategy that could be employed is to build relationships with the community to ensure that the use of ex parte applications is understood and accepted. Law enforcement agencies should engage with community groups and other stakeholders to explain the need for these provisions and address any concerns that may arise. This can help to build trust and ensure that the use of these provisions is seen as a legitimate tool in the fight against serious crime. Finally, law enforcement agencies should ensure that any ex parte application is carefully drafted to ensure that it meets the requirements set out in Section 188(1). Any mistake or ambiguity in the application could result in the evidence being excluded at trial, which could harm the prosecution's case. Therefore, agencies should ensure that any application is reviewed by legal counsel to ensure that it is consistent with the requirements of the Criminal Code of Canada. Conclusion Section 188(1) of the Criminal Code of Canada provides law enforcement agencies with critical tools for collecting evidence in serious criminal investigations. However, the use of these provisions must be carefully balanced with the privacy rights of individuals and the impact on the investigation and prosecution of offences. By adopting clear protocols, building relationships with the community, and ensuring that any application is carefully drafted, law enforcement agencies can make effective use of these provisions while minimizing the impact on individuals' privacy rights and ensuring that any evidence obtained is admissible in court.