Criminal Code of Canada - section 196(4) - Application to be accompanied by affidavit

section 196(4)

INTRODUCTION AND BRIEF DESCRIPTION

An affidavit must accompany an application for extension of an authorization and include the facts and number of previous unsuccessful applications.

SECTION WORDING

196(4) An application pursuant to subsection (2) shall be accompanied by an affidavit deposing to (a) the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted; and (b) the number of instances, if any, on which an application has, to the knowledge or belief of the deponent, been made under that subsection in relation to the particular authorization and on which the application was withdrawn or the application was not granted, the date on which each application was made and the judge to whom each application was made.

EXPLANATION

Section 196(4) of the Criminal Code of Canada outlines the requirements that must be fulfilled when making an application for an extension of an authorization issued under the section. The section is concerned with safeguarding individual rights and ensuring that the state does not have unrestricted access to legal tools, such as search warrants and wiretaps, which are designed to assist in investigations and prosecutions. To make an application for an extension under this section, a person must submit an affidavit that outlines the reasons to support the belief that an extension is necessary. The affidavit should include the facts that the deponent considers important, which may include evidence, intelligence information, or reasonable suspicions that there might be criminal activity being planned or undertaken. Additionally, the affidavit must indicate how many times an application has been made for the authorization to be extended, if at all, and details about those applications. This information is necessary to ensure that the judge can make an informed decision about whether to grant the extension. If past applications for extension have been withdrawn or denied, the judge may be reluctant to grant an extension without more compelling evidence to justify it. In conclusion, section 196(4) provides critical safeguards to relevant legal tools used by law enforcement. It ensures that the state's access to these instruments is regulated, and that the rights of individuals are duly protected. This way, authorities can only utilize these tools when there is sufficient reason to do so.

COMMENTARY

Section 196(4) of the Criminal Code of Canada outlines the requirements for making an application for an extension of a wiretap authorization. This provision is critical in ensuring that there is sufficient oversight of law enforcement agencies, which are granted significant powers to intercept communications in the course of criminal investigations. It ensures that these powers are not abused or used excessively. The section requires an affidavit to be submitted by the law enforcement agency wishing to extend a wiretap authorization. The affidavit must detail the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted. This provides transparency and accountability in the process of obtaining a wiretap authorization, as the affidavit must be based on concrete evidence. Moreover, the provision requires the affidavit to specify the number of instances, if any, on which an application has been made under this subsection in relation to the particular authorization. This requirement is significant in that it ensures that a history of the use of a wiretap authorization is kept. The provision also requires information regarding the outcome of these applications, such as whether an application was withdrawn or not granted, the date on which each application was made, and the judge to whom each application was made. This information helps to ensure that the same applications are not repeatedly granted without just cause. Overall, Section 196(4) of the Criminal Code of Canada is a critical provision in promoting transparency and accountability in the process of obtaining wiretap authorizations. The requirement for an affidavit detailing the facts known or believed by the deponent and the history of previous applications ensures that the use of these powers is controlled and reasonable. The provision helps to prevent abuse of wiretap authorizations and protect individual privacy and freedom while still allowing law enforcement agencies the tools necessary to pursue criminal investigations.

STRATEGY

Section 196(4) of the Criminal Code of Canada mandates that an affidavit accompany an application pursuant to subsection (2). The affidavit must depose to the facts relied on to justify the belief that an extension should be granted and the number of instances where an application was made under that subsection and withdrawn or not granted, along with the date and the judge to whom it was made. This section has some strategic considerations when dealing with it. One of the most important strategic considerations is to ensure that the affidavit is prepared with great care. The affidavit must accurately depict the facts upon which the applications are being made. Any inaccuracies or errors in the affidavit can result in the application being dismissed, which can have serious repercussions for the justice system. Another strategic consideration is to take great care when preparing the supporting documentation. The supporting documentation may include phone records, emails, social media communications, and other electronic evidence. The documentation must be accurate and comprehensive and must be presented in a manner that is easy for the judge to understand. A critical strategic consideration is to ensure that the application is made with enough time for a judge to consider and approve it. Most applications must be made within 24 hours, and failure to make an application within this time frame can result in the warrant being quashed. It is also essential to strategize the approach when making the application. Depending on the circumstances, it may be best to make the application in writing or to have the applicant appear before a judge in person. In conclusion, section 196(4) of the Criminal Code of Canada has several strategic considerations when dealing with it. Adequate preparation, the accuracy of the affidavit, the comprehensiveness of the supporting documentation, and ensuring enough time for the application to be considered are critical. Finally, the approach when making the application must be carefully planned.