INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the requirements for obtaining an ex parte order to seize electronic information.
SECTION WORDING
487.013(4) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to suspect that (a) an offence against this Act or any other Act of Parliament has been or will be committed; (b) the information will assist in the investigation of the offence; and (c) the institution, person or entity that is subject to the order has possession or control of the information.
EXPLANATION
Section 487.013(4) is a section of the Criminal Code of Canada that pertains to obtaining an order to obtain information. This is an important tool for law enforcement agencies when investigating crimes as it allows them to obtain necessary information that they would otherwise not have access to. However, the power of obtaining such an order must be subject to certain conditions to protect the privacy of individuals. Before making an order, the justice or judge must be satisfied that there are reasonable grounds to suspect that an offence has been or will be committed, and the information requested will assist in the investigation of that offence. This means that the requesting agency must have a valid reason for obtaining the information. The justice or judge must also be convinced that the institution, person, or entity subject to the order has possession or control of the information. Furthermore, the application for an order must be made ex parte, meaning that it is heard in the absence of the party against whom the order is issued. This ensures that the requested information is not destroyed or tampered with by the person, institution or entity in question. However, the ex parte nature of the application can also be seen as detrimental to the individual's privacy rights, as they do not have an opportunity to contest the application for an order. Overall, Section 487.013(4) serves as a balance between the needs of law enforcement agencies to obtain information for the investigation of crimes and the privacy rights of individuals. By requiring a high level of proof and oversight, the section allows for the use of these orders in an appropriate and effective manner.
COMMENTARY
Section 487.013(4) of the Criminal Code of Canada deals with the process by which a justice or judge can order the production of documents or data held by a person or entity that is suspected of being relevant to an investigation of an offence under any Act of Parliament. The section requires that before making such an order, the justice or judge must be satisfied on the basis of an ex parte application containing information on oath in writing that there are reasonable grounds to suspect that an offence has been or will be committed, that the information sought will assist in the investigation of the offence, and that the person or entity subject to the order has possession or control of the information. In essence, this provision serves as a mechanism for law enforcement authorities to obtain information relevant to an investigation, even if the party holding the information is not willing or able to provide it voluntarily. This can be an important tool for investigators, as the information sought may be essential to uncovering and prosecuting criminal activity. However, this provision is not without controversy. Critics argue that it is overly broad and infringes on individual privacy rights. The fact that the order can be made ex parte means that the party holding the information may not have the chance to contest the production order before it is made. This could potentially be used to target innocent parties, or to obtain information that is not actually relevant to the investigation. It is worth noting, however, that section 487.013(4) includes a number of safeguards to protect against abuse of the production order process. For one, the order can only be made if the justice or judge is satisfied on the basis of the written application that there are reasonable grounds to believe that the information sought is relevant to the investigation. Additionally, the order must be narrowly tailored to only seek the specific information that is necessary for the investigation. The party holding the information may also have the opportunity to challenge the order after it is made, if they can show that it was made improperly or that it should be varied or set aside. Overall, section 487.013(4) represents a balance between the need for law enforcement authorities to obtain information relevant to criminal investigations and the need to protect individual privacy rights. While the provision is not without its critics, it serves an important role in the Canadian justice system and is subject to various safeguards to prevent abuse.
STRATEGY
Section 487.013(4) of the Criminal Code of Canada is an important provision for investigating criminal offenses because it provides law enforcement with the ability to obtain a production order compelling individuals or entities to produce documents or information that could be critical for the investigation. However, this provision also raises concerns regarding privacy, potential abuse of power, and the potential for errors or inaccuracies. Therefore, when dealing with this section of the Criminal Code of Canada, various strategic considerations must be taken into account. Some of these considerations include: 1. Ensuring the basis for the ex parte application is sound: Before applying for a production order, law enforcement should ensure that there are sufficient and credible reasons to suspect that an offense has occurred or will occur. The law requires information in writing on oath for this reason. 2. Balancing privacy rights with the need for information: Privacy is a fundamental right, and any application for a production order must be to obtain information that is necessary for the investigation. Law enforcement should be strategic and precise in framing their request to ensure they can accomplish their goals without unnecessary invasions of privacy. 3. Ensuring the order is not overly broad: An overly broad production order can damage reputations and businesses. It is important to be specific about the types of documents and information required and only request what is necessary for the investigation. 4. Taking steps to protect sensitive information: Law enforcement must protect sensitive information provided by production, orders issued so that information is not disseminated more widely than is appropriate or necessary. 5. Establishing and maintaining a system of checks and balances: To prevent abuse of power, it is crucial to have checks and balances in place. For instance, ex parte applications should be made to judicial officers who have independent oversight authority. Considering these strategic considerations when dealing with section 487.013(4) of the Criminal Code of Canada, there are several strategies that law enforcement can employ. Some of these strategies include: 1. Building a strong case: It is easier to obtain a production order if there is a strong basis for the application. In particular, providing credible information to support suspicion of an offense will reduce the likelihood of rejection. 2. Being transparent: Law enforcement should be open and transparent with the subject of the production order about the type of information required. Doing so can significantly reduce the likelihood of the subject feeling that their privacy has been invaded and is more likely to produce what is requested. 3. Stipulating terms of compliance: Law enforcement should be transparent about how long it will take to comply and avoid unreasonable timelines. Additionally, the production order should clearly identify which individuals are authorized to access produced materials and other terms of compliance. 4. Conducting reviews of the process: Conducting reviews of the process is critical during investigations to detect and correct missed errors, mishandled orders and the like. In conclusion, section 487.013(4) of the Criminal Code of Canada is a vital provision, allowing law enforcement to obtain critical information when investigating criminal offenses. However, privacy concerns, potential abuse of power and human errors must be taken into consideration when pursuing this line of investigation. Employing the appropriate strategies can reduce the impact of these issues. The application of the appropriate strategies will help minimize the risk of errors and abuses and increase the success and efficiency of investigations.