INTRODUCTION AND BRIEF DESCRIPTION
This section allows for an extension of the period of investigative warrants in cases involving criminal organizations or terrorism offences.
SECTION WORDING
196(5) Notwithstanding subsections (3) and 185(3), where the judge to whom an application referred to in subsection (2) or 185(2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to (a) an offence under section 467.11, 467.12 or 467.13, (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization, or (c) a terrorism offence, and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
EXPLANATION
Section 196(5) of the Criminal Code of Canada relates to the extension of time that an investigative body, such as the police or the Canadian Security Intelligence Service, can carry out an investigation. Under subsections (2) and 185(2) of the Criminal Code, an investigation must be completed within a certain time frame, and a judge can grant an extension of time if certain conditions are met. Subsection (5) sets out the circumstances under which a judge can grant an extension. These circumstances include investigations related to offenses under sections 467.11, 467.12, or 467.13 of the Criminal Code (offenses related to organized crime), offenses committed for the benefit of, at the direction of, or in association with a criminal organization, or terrorism offenses. However, the judge must also be satisfied, based on an affidavit submitted in support of the application, that the interests of justice warrant the granting of the extension. This means that the judge must consider factors such as the seriousness of the offense, the progress of the investigation, and the potential consequences for public safety if the investigation is not allowed to continue. It is important to note that the extension granted by a judge cannot exceed three years. This is to ensure that investigations are carried out in a timely and efficient manner, and that the rights of individuals under investigation are protected. Overall, Section 196(5) is a critical part of the Criminal Code of Canada that ensures that investigations related to organized crime and terrorism are conducted within a framework that balances the interests of justice with the protection of individual rights and freedoms.
COMMENTARY
Section 196(5) of the Criminal Code of Canada is a provision that governs the granting of extensions for the detention of individuals without charge in the context of investigations into serious criminal and terrorism offenses. Specifically, it allows for a judge to grant an extension, or subsequent extension, of the detention period beyond the initial 24 or 48-hour limit set out in subsections (3) and 185(3) of the Code. This provision is controversial as some argue that it provides too much power to the state to detain people without charge. The provision applies only to investigations related to certain offences, namely those under sections 467.11, 467.12, or 467.13 (which relate to participation in criminal organizations), offences committed for the benefit of, at the direction of, or in association with a criminal organization, or terrorism offences. For an extension to be granted, the judge must be satisfied that the investigation relates to one of these offences and that the interests of justice warrant the granting of the application. The judge must also base their decision on an affidavit submitted by the investigating officer. The maximum length of an extension that can be granted under this provision is three years, although subsequent extensions can be sought. This means that individuals can be detained without charge for periods upwards of three years, subject to judicial oversight. Advocates of this provision argue that it is a necessary tool to combat serious criminal and terrorism offences. They argue that it allows investigators to gather evidence and build cases without the constraints of the initial 24 or 48-hour limit, which could be insufficient in complex cases. They also argue that judicial oversight ensures that extensions are only granted where absolutely necessary and that the interests of justice are safeguarded. Opponents of this provision, on the other hand, argue that it violates the Charter of Rights and Freedoms, specifically the right to be free from arbitrary detention (section 9) and the right to a fair trial (section 11). They argue that the provision allows the state to detain individuals without charge for prolonged periods, which is tantamount to punishment without trial. They also argue that the provision is overbroad and could be used to target individuals who are not actually involved in criminal or terrorist activity. Overall, section 196(5) of the Criminal Code of Canada is a controversial provision that grants significant power to the state to detain individuals without charge for prolonged periods. While advocates argue that it is necessary to combat serious criminal and terrorism offences, opponents argue that it violates fundamental rights and freedoms. As with any provision of this nature, it is essential that it is scrutinized and applied only where absolutely necessary to ensure that the interests of justice are safeguarded while respecting civil rights.
STRATEGY
Section 196(5) of the Criminal Code of Canada allows for the extension of the period of investigative hearing, even beyond the usual 90-day limit, where the investigation is related to a serious offence or terrorism. This provision is a power that prosecutors can use to obtain more time for investigations, which can be useful but should be used with caution and strategic considerations. One of the strategic considerations when dealing with this section is the timing of the application. Prosecutors must weigh the benefits of an extension with the potential negative impact on the accused person's rights. If the application for an extension is made too early in the investigation, the defence may argue that waiting until there is more evidence would have been a better option. Therefore, the prosecutor should consider the strength of the case before deciding when to apply for an extension. Another strategic consideration is related to the affidavit submitted in support of the application. The affidavit should be well-crafted to provide persuasive evidence to the judge that the interests of justice warrant the granting of the extension. This includes outlining the seriousness of the offence being investigated, the public safety concerns if the investigation is not allowed to continue, and the progress made by the investigation team so far. The affidavit should include any compelling evidence that has been collected and a description of the evidence expected to be gathered during the extended time. In addition, the prosecutor needs to consider the implications of extending the investigation on the accused person's rights, such as their right to a fair and timely trial. This can be a compelling argument for the defence and may lead the judge to deny the extension. Therefore, the prosecutor should demonstrate the efforts made to minimize the impact on the accused person's rights, such as the use of alternative investigative methods, expedited disclosure, and ongoing consultation with the defence. One potential strategy to be employed is to file periodic updates of the investigation's progress to the court and the defence. This can demonstrate transparency and gain the court's confidence in the investigation's continued need for an extension. It also ensures that the defence is not caught off guard by the sudden need for more time and can make their own strategic decisions. Another strategy is to seek a lesser extension than the maximum three years allowed. Providing a specific timeline for the extension can create a sense of urgency and focus on the investigative team while mitigating the impact on the accused person's rights. This strategy also allows for additional extensions to be granted if necessary, rather than risking a denied application for a one-time lengthy extension. In conclusion, Section 196(5) of the Criminal Code of Canada provides a powerful tool for prosecutors to extend the period of investigative hearing. To effectively employ this tool, strategic considerations must be taken into account. This includes timing the application carefully, providing a well-crafted affidavit, minimizing the impact on the accused person's rights, filing periodic updates, and seeking a reasonable extension timeline. By considering these factors, prosecutors can use this provision to strengthen their case while maintaining fairness and justice in the legal process.