INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the process for applying to a judge for an order to determine the disclosure of a seized document.
SECTION WORDING
488.1(3) Where a document has been seized and placed in custody under subsection (2), the Attorney General or the client or the lawyer on behalf of the client, may (a) within fourteen days from the day the document was so placed in custody, apply, on two days notice of motion to all other persons entitled to make application, to a judge for an order (i) appointing a place and a day, not later than twenty-one days after the date of the order, for the determination of the question whether the document should be disclosed, and (ii) requiring the custodian to produce the document to the judge at that time and place; (b) serve a copy of the order on all other persons entitled to make application and on the custodian within six days of the date on which it was made; and (c) if he has proceeded as authorized by paragraph (b), apply, at the appointed time and place, for an order determining the question.
EXPLANATION
Section 488.1(3) of the Criminal Code of Canada deals with the seizure and custody of documents during criminal investigations. It provides a procedure for the Attorney General, client, or lawyer acting on behalf of the client to apply to a judge for an order to determine whether the document should be disclosed. The section allows for a period of fourteen days from the date of the document's placement in custody for the application to be made. Two days' notice of motion must be given to all other parties entitled to make an application, and the court must appoint a place and date not later than twenty-one days after the order is made for the determination of the question. The custodian of the document must produce it to the judge at the appointed time and place, and a copy of the order must be served on all parties entitled to make an application and on the custodian within six days of the date of the order. If the applicant has followed the authorized procedures, they may apply for an order determining the question at the appointed time and place. This section is significant as it ensures that the rights of the parties involved in criminal investigations are protected. It provides a clear process for obtaining an order for the disclosure of a document, which allows the parties to present their arguments before a judge. It also ensures that documents are not disclosed without proper consideration of the implications of the disclosure.
COMMENTARY
Section 488.1(3) of the Criminal Code of Canada provides a process for the disclosure of documents seized by law enforcement officials during an investigation. The section allows for an individual (either the Attorney General, the client, or the lawyer on behalf of the client) to apply for an order from a judge to determine whether the seized document should be disclosed. The order must appoint a place and a day for the determination of the question, and require the custodian to produce the document to the judge at that time and place. This provision is significant in protecting individual rights and privacy during criminal investigations. It recognizes that there may be documents that are privileged or confidential, and ensures that there is a fair and open process for determining whether those documents should be disclosed. Without this provision, law enforcement officials could seize documents without oversight or accountability, potentially violating individual rights and freedoms. However, the 14-day time limit for applying for an order and the requirement to serve a copy of the order on all other persons entitled to make application and the custodian within six days of the date on which it was made may be challenging in some circumstances. For example, if an individual is in custody or not in the country at the time of the seizure, they may not be able to apply for an order within the required timeframe. Additionally, serving a copy of the order within six days may also be challenging if the individuals entitled to make an application are not readily identifiable or located. Nevertheless, the process outlined in section 488.1(3) provides a fair and transparent approach to resolving issues of disclosure in criminal cases. It ensures that individual rights and privacy are protected, while still allowing for relevant information to be disclosed as required for the investigation or trial. Overall, section 488.1(3) is a crucial component of the Canadian criminal justice system, providing a means of balancing the need for disclosure in criminal investigations with individual rights and privacy. The time limits and notification requirements may present some challenges, but the fundamental purpose of the provision remains essential to ensuring the fairness and integrity of the criminal justice system.
STRATEGY
Section 488.1(3) of the Criminal Code of Canada lays out procedures for the handling of seized documents, which may contain confidential and privileged information. As such, it is crucial to consider the potential impacts and strategic implications of invoking this section when dealing with seized documents. One important consideration is the nature of the documents themselves. Depending on the contents of the documents, it may be advantageous to seek their disclosure or to resist their disclosure. For example, if the documents contain information that could exonerate the accused or undermine the Crown's case, the accused may seek their disclosure to strengthen their defence. On the other hand, if the documents contain sensitive or confidential information that could harm the accused's reputation or safety, they may seek to resist disclosure. Another strategic consideration is timing. The window for seeking an order under Section 488.1(3) is limited to fourteen days from the day the document was seized. As such, it is important to act quickly and efficiently in order to maximize the benefits of this section. This may involve coordinating with legal counsel, gathering evidence and preparing submissions in advance, and ensuring timely service of documents and orders. A third consideration is the potential risks and ramifications of seeking or resisting disclosure. While Section 488.1(3) provides a mechanism for resolving disputes over custody and disclosure of seized documents, it is not without its risks. If the application is unsuccessful, it may result in the disclosure of sensitive or confidential information, which could have significant negative consequences. On the other hand, if an order for disclosure is obtained, it may provide valuable evidence or support for the accused's case. Given these considerations, several strategic options are available when dealing with Section 488.1(3). One option is to seek an order for disclosure, if there is reason to believe that the documents could be beneficial to the defence. This may involve gathering evidence to support the disclosure application, and making persuasive submissions to the judge. Alternatively, if there is reason to believe that the documents contain sensitive or confidential information, the accused may seek to resist disclosure and argue that the documents should be returned or remain in custody. Another option is to negotiate with the Crown or other parties involved in the case. Depending on the circumstances, it may be possible to reach a mutually agreeable resolution without resorting to Section 488.1(3). This could involve exchanging information informally, agreeing to redact certain portions of the documents, or otherwise finding a compromise that protects the interests of all parties involved. Ultimately, the strategy employed when dealing with Section 488.1(3) will depend on a range of factors, including the nature of the documents, the interests of the accused, the risks of disclosure, and the potential benefits of obtaining an order. By carefully considering these factors, and working closely with legal counsel, accused persons can maximize their chances of success when dealing with this section of the Criminal Code of Canada.