section 487.0911(3)

INTRODUCTION AND BRIEF DESCRIPTION

If the offense in an order or authorization is not a designated offense, the Attorney General must inform the Commissioner.

SECTION WORDING

487.0911(3) If the Attorney General is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Attorney General shall inform the Commissioner of that opinion.

EXPLANATION

Section 487.0911(3) of the Criminal Code of Canada pertains to a situation where an order or authorization is issued to law enforcement authorities in relation to a designated offence. If the Attorney General forms an opinion that the offence referred to in the order or authorization is not a designated offence, they must inform the Commissioner of the opinion. This provision is significant as it serves to ensure that law enforcement authorities do not engage in unlawful activities under the guise of investigating a designated offence. Designated offences are serious offences that pose a significant threat to society, such as terrorism, organized crime, and major drug offences. The use of investigative powers is justified in cases of designated offences due to the severity of the threat to public safety. The provision is designed to safeguard against the misuse of investigative powers by ensuring that orders and authorizations are not issued for offences that do not meet the designated offence criteria. The Attorney General is responsible for providing oversight of the use of investigative powers, and they are required to issue an opinion where there is a question about the designated nature of an offence. In summary, Section 487.0911(3) serves as a safeguard provision to prevent the misuse of investigative powers by ensuring that orders and authorizations are only issued for designated offences. The provision underscores the need for accountability and oversight as critical elements in ensuring the proper use of investigative powers in Canada.

COMMENTARY

Section 487.0911(3) of the Criminal Code of Canada is a crucial subsection of the legislation that governs the issuance of orders and authorizations for the collection of electronic data. In essence, the section requires the Attorney General to provide information to the Commissioner if the former determines that the offence in question is not a designated offence. However, to fully appreciate the importance of this section, it is necessary to have a more detailed understanding of the broader context within which it operates. In recent years, there has been a growing concern about the impact of digital technology on privacy and civil liberties. Part of this concern is driven by the fact that many national security agencies and law enforcement agencies have sought increased access to electronic data as part of their efforts to keep citizens safe. However, the increased use of electronic data collection has also led to controversy, with many individuals and privacy advocates expressing concern about the potential for abuse, misuse, or errors in the collection, storage, and protection of such data. To mitigate these concerns, Canada has enacted a range of laws and regulations that govern the collection of electronic data by law enforcement agencies and other government bodies. Section 487.0911 is one of these regulations, and it specifies the conditions under which an order or authorization for the collection of electronic data can be issued. One of the key conditions is that the offence in question must be a designated offence. More specifically, this term applies to a range of serious offenses, including terrorism, espionage, and offenses involving firearms, explosives, and nuclear materials. However, there may be cases when a law enforcement agency or government body seeks an order or authorization for an offense that is not a designated offense. This could happen, for instance, if there are reasonable grounds to suspect that an individual is engaged in criminal activity that does not fall into the designated offense category - for example, if there is evidence of money laundering, fraud, or other white-collar crimes. In such cases, Section 487.0911(3) requires the Attorney General to exercise discretion and assess whether the offense meets the criteria for the issuance of an order or authorization. The Attorney General's opinion is critical in this context, as it provides a key safeguard against arbitrary or unjustified electronic data collection. If the Attorney General determines that the offense in question is not a designated offense, they must inform the Commissioner. This serves to alert the Commissioner to the fact that the proposed order or authorization may not meet the criteria of the law and allows the Commissioner to scrutinize the situation further. In conclusion, Section 487.0911(3) is an essential section of the Criminal Code of Canada, which provides a crucial safeguard against unconstitutional electronic data collection. By requiring the Attorney General to assess whether an offense meets the criteria for the issuance of an order or authorization, the section helps to ensure that the legal framework for electronic data collection is applied consistently and fairly. This, in turn, helps to protect the privacy and civil liberties of Canadian citizens and helps to prevent unwarranted government intrusions into their personal lives.

STRATEGY

Section 487.0911(3) of the Criminal Code of Canada is a highly important provision that provides the Attorney General with the authority to review orders or authorizations obtained under the legislation and determine if the offence is a designated one or not. This section raises several strategic considerations for the parties involved in the criminal justice system. One of the essential considerations for the Attorney General is to ensure that the determination of whether the offence is a designated one or not is made based on the available evidence. If the prosecution has not provided sufficient evidence to establish that the offence falls under the designated list, the Attorney General should inform the Commissioner accordingly. This is important because wrongful convictions can have disastrous consequences on the lives of those who are found guilty, and it is imperative that the justice system is fair and just. Another strategic consideration is the potential impact of the Attorney General's decision on the prosecution's case. If the offence is not considered a designated one, it is possible that the prosecution will not be able to rely on the evidence obtained under the order or authorization. The prosecution will have to determine whether to proceed with the charges, seek alternative evidence, or abandon the case altogether. In some cases, the decision of the Attorney General may be challenged by the prosecution, who may argue that the offence is indeed a designated one. In such cases, the Attorney General will need to make a careful determination based on the facts and evidence available. The Attorney General must be able to justify their decision and ensure that it is in line with the intention of the legislation. One strategy that could be employed by the prosecution is to ensure that they have robust evidence to demonstrate that the offence falls under the designated list. This may involve conducting additional investigations or gathering more comprehensive evidence that links the alleged crime to the designated list of offences. By doing this, the prosecution can reduce the likelihood of the Attorney General's decision having a negative impact on their case. Another strategy that could be employed by the prosecution is to seek clarification from the Attorney General at an early stage. If there is any uncertainty about whether the offence falls under the designated list, the prosecution can seek advice from the Attorney General to avoid potential complications later on. Overall, section 487.0911(3) of the Criminal Code of Canada presents several strategic considerations for the Attorney General, prosecution, and other parties involved in the justice system. By carefully considering these considerations and developing effective strategies, parties can ensure that justice is delivered fairly and efficiently.