INTRODUCTION AND BRIEF DESCRIPTION
A judge can extend the period for giving notice of a search warrant if the interests of justice require it, but the extension cannot exceed three years.
SECTION WORDING
487.01(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
EXPLANATION
Section 487.01(5.2) of the Criminal Code of Canada provides for the extension of the period within which notice must be given to a person who is subject to an investigative measure ordered under subsection (1). This subsection provides that a judge may extend or grant a subsequent extension of the period if he or she is satisfied, on the basis of an affidavit submitted in support of the application to vary the period, that the interests of justice warrant the granting of the application. The extension may not exceed three years. This provision is intended to balance the need for timely notice to individuals who may be subject to investigative measures with the need for effective investigation and prosecution of criminal offences. It recognizes that there may be circumstances where an extension of the notice period is necessary to protect the integrity of the investigative or prosecutorial process, and ensures that judges have the discretion to grant such an extension when appropriate. However, this provision must be used judiciously, as it potentially infringes on the rights of individuals who may be subject to investigative measures. Any extension of the notice period should only be granted where it is absolutely necessary and where the interests of justice clearly outweigh the potential harm to individual rights and freedoms. Ultimately, the aim of this provision is to strike a balance between protecting individual rights and ensuring that the criminal justice system operates effectively.
COMMENTARY
Section 487.01(5.2) of the Criminal Code of Canada allows for an extension of the notice period that must be given when executing a warrant under subsection (1). The section permits any judge who issued the warrant or any other judge with jurisdiction to issue such a warrant to grant an extension, or a subsequent extension, of the notice period. However, no extension may exceed three years. The primary intention of this section is to protect the rights of individuals who may be affected by the execution of the warrant. The notice period provides these individuals with the opportunity to prepare a response and potentially challenge the warrant, as well as to protect their property and other interests. By allowing an extension of this notice period, the section acknowledges that there may be circumstances in which the interests of justice warrant additional time. There are various reasons why an extension of the notice period may be necessary. For example, in cases where the investigation is complex and requires additional time to gather evidence, an extension of the notice period may be necessary to ensure that proper notice is given. Additionally, situations where the safety of an individual or group is at risk may require an extension of the notice period to allow appropriate protective measures to be put in place before the warrant is executed. Overall, Section 487.01(5.2) of the Criminal Code of Canada is a provision that recognizes the importance of balancing the interests of justice with the protection of individual rights and privacy. The section ensures that an extension of the notice period is only granted when necessary, and limits the extension to three years, preventing an indefinite extension that could infringe on individual rights.
STRATEGY
Section 487.01(5.2) of the Criminal Code of Canada provides for the extension of the notice period before a search warrant is executed. This section is relevant for both law enforcement officials and criminal defense lawyers. For law enforcement officials, one strategic consideration when dealing with this section is to ensure that the affidavit submitted in support of an application to vary the notice period is complete and accurate. The judge will rely on the affidavit when making a decision about whether to grant an extension. Therefore, law enforcement officials must ensure that all the necessary information is included in the affidavit. For example, they must provide reasons why an extension is necessary, explain the efforts made to give notice within the original time frame, and provide details about any ongoing investigations or imminent threats to public safety. Another strategic consideration for law enforcement officials is to keep in mind that the judge may only grant a maximum extension of three years. Therefore, they must carefully consider the length of the extension that they are seeking and ensure that it is reasonable given the circumstances of the case. They must also be prepared to explain why a shorter or longer extension is not appropriate. For criminal defense lawyers, one strategy when dealing with this section is to carefully review the affidavit submitted by the law enforcement officials. They must look for any potential weaknesses in the affidavit, such as incomplete or inaccurate information. If there are any issues, they can raise them during the application to vary the notice period. They can also argue against any extension, pointing out that the original notice period was already inadequate and that the granting of an extension would significantly infringe upon their client's rights. Another strategy for criminal defense lawyers is to closely monitor the timing of the application to vary the notice period. They can use this information to determine whether law enforcement officials are following the proper procedures and whether their client's rights are being respected. They can also use this information to prepare a defense strategy that takes into account any potential evidence that may be obtained through the search warrant. In conclusion, Section 487.01(5.2) of the Criminal Code of Canada is a significant provision that provides for the extension of the notice period before a search warrant is executed. Both law enforcement officials and criminal defense lawyers must carefully consider this section when dealing with search warrants. For law enforcement officials, they must ensure that the affidavit submitted in support of an application to vary the notice period is complete and accurate, and they must carefully consider the length of the extension they are seeking. For criminal defense lawyers, they must carefully review the affidavit submitted by law enforcement officials, closely monitor the timing of the application, and prepare a defense strategy accordingly.