Criminal Code of Canada - section 83.13(10)

section 83.13(10)

INTRODUCTION AND BRIEF DESCRIPTION

The Attorney General can ask a judge to cancel or change an order or warrant made under section 83.13, except for an appointment made under subsection (3).

SECTION WORDING

83.13(10) The Attorney General may at any time apply to a judge of the Federal Court to cancel or vary an order or warrant made under this section, other than an appointment made under subsection (3).

EXPLANATION

Section 83.13(10) of the Criminal Code of Canada relates to the power of the Attorney General to apply to a judge of the Federal Court to cancel or modify an order or warrant made under the section, with the exception of an appointment made under subsection (3). Section 83.13(10) is part of the broader Section 83.13 of the Criminal Code, which deals with the preventative arrest and detention of individuals who are suspected of planning or carrying out terrorist activities. This section was introduced in the wake of the September 11, 2001 terrorist attacks in the United States and seeks to provide law enforcement agencies with the tools to prevent such attacks from occurring in Canada. Under Section 83.13, a judge may issue a variety of orders or warrants, including detention orders, peace bonds, and recognizance orders, to prevent someone from engaging in terrorist activities. However, sometimes circumstances may change, and it may be necessary to cancel or modify these orders or warrants. That is where Section 83.13(10) comes in. The provision allows the Attorney General to apply to a Federal Court judge to cancel or modify an order or warrant made under the section, except for appointments made under subsection (3), which deals with the appointment of a lawyer for a person subject to a peace bond or recognizance order. It is important to note that the power of the Attorney General to cancel or modify an order or warrant does not supersede the role of the courts. The Attorney General is required to make an application to a judge of the Federal Court, who will consider the application on its merits and make a decision, taking into account all relevant factors. In conclusion, Section 83.13(10) provides a mechanism for the Attorney General to seek the cancellation or modification of an order or warrant made under Section 83.13 of the Criminal Code. This power is subject to judicial oversight, and any decision to cancel or modify an order or warrant will be made by a judge of the Federal Court.

COMMENTARY

Section 83.13(10) of the Criminal Code of Canada grants the Attorney General the authority to apply to a Federal Court judge for the cancellation or variation of an order or warrant made under this section, excluding an appointment made under subsection (3). This provision is significant as it provides an essential safeguard in the context of national security measures. However, the provision also raises concerns about the scope of the Attorney General's powers and the limits of judicial review. The provision applies to orders and warrants made under Section 83.13 of the Criminal Code, which enables law enforcement agencies to take actions to prevent terrorist activities. Such measures include the preventive arrest of individuals suspected of terrorist activities, the imposition of restrictions on their movements and communication, and the seizure of their property. These measures are designed to prevent terrorist attacks before they occur and are thus considered crucial tools in the fight against terrorism. However, such measures carry a significant risk of violating the rights of individuals who may not be involved in any terrorist activity. The power to arrest and detain individuals without charge or trial, restrict their movements and communication, and seize their property can fundamentally curtail the rights and freedoms that are essential in a democratic society. Thus, the provisions of Section 83.13 are subject to strict legal requirements, including the necessity to show reasonable grounds that an individual is involved in terrorist activity and that there are no less intrusive measures available to prevent such activity. Despite these safeguards, there remains a risk that the measures taken under Section 83.13 may be excessive or unjustified. In such cases, it is essential to have a mechanism to review and, if necessary, cancel or vary the orders or warrants. Section 83.13(10) provides this safeguard by granting the Attorney General the authority to apply to a Federal Court judge to review the orders or warrants made under this section. This provision ensures that the oversight of the legality of national security measures is conducted by a judicial authority, providing accountability and transparency in the decision-making process. However, the provision also raises concerns about the scope of the Attorney General's powers and the limits of judicial review. The provision grants the Attorney General wide discretion to apply for the cancellation or variation of the orders or warrants. As such, the provision may be used by the Attorney General to interfere with the legitimate exercise of national security powers by law enforcement agencies and undermine their efficacy. Furthermore, the provision excludes an appointment made under subsection (3) from the scope of judicial review. This exclusion means that the appointment of a specific individual to carry out certain national security measures cannot be challenged in court, even if there are concerns about their suitability or competence. Such an exclusion undermines the accountability and transparency of national security measures and raises concerns about the potential abuse of power. In conclusion, Section 83.13(10) of the Criminal Code of Canada provides a crucial safeguard in the context of national security measures. The provision ensures that the legality and necessity of such measures are subject to judicial review, providing accountability and transparency in the decision-making process. However, the provision also raises concerns about the scope of the Attorney General's powers and the limits of judicial review. Thus, it is essential to balance the need for national security with the protection of individual rights and freedoms.

STRATEGY

Section 83.13(10) of the Criminal Code of Canada provides the Attorney General with the ability to apply to a judge of the Federal Court to cancel or vary an order or warrant made under this section. It is an important provision that must be carefully considered in dealing with situations that may arise under the section. Strategic considerations that should be taken into account when dealing with this provision are as follows: 1. Timing: The timing of the application is crucial. It is recommended that the Attorney General should act promptly to ensure that the application is made within a reasonable time frame. Prompt action can help in minimizing the adverse effects of the order on the individual involved. 2. Grounds for Application: The Attorney General must have sufficient grounds for the application to be successful. This means that the Attorney General must provide a cogent and compelling argument that will persuade the judge to cancel or vary the order. Therefore, the Attorney General must be able to provide sound legal and factual reasons for the application. 3. Evidence: The strength of the application will depend largely on the evidence presented by the Attorney General. Therefore, it is vital that the Attorney General has access to all the necessary information and documentation that will support their argument. The Attorney General must also ensure that the evidence presented is admissible and relevant. 4. Judicial Discretion: The judge has discretion to grant or deny the application. Therefore, the Attorney General must be prepared to address any issues that may arise during the hearing and be able to respond to any questions or concerns that the judge may have. 5. Public Interest: The Attorney General must also consider the public interest in making the application. This means that the Attorney General must demonstrate that the application is in the public interest and that cancelling or varying the order will not compromise national security or public safety. In light of the above considerations, the following strategies could be employed when dealing with this section of the Criminal Code of Canada: 1. Triaging: The Attorney General could adopt a triaging strategy to prioritize the cases that require attention. This means that the Attorney General could focus on cases that involve the most serious threats to national security and public safety. 2. Collaboration: The Attorney General could collaborate with other agencies involved in national security and public safety, such as the police and intelligence agencies, to gather evidence and develop legal arguments that will support the application. 3. Advocacy: The Attorney General could engage in advocacy efforts to raise awareness among the public and other stakeholders about the importance of protecting national security and public safety. This could help to garner support for the application and ensure that public opinion is aligned with the government's position. 4. Review: The Attorney General could conduct periodic reviews of the effectiveness of the section and identify areas where improvements could be made. This could help to ensure that the section is being used effectively and that it is meeting its objectives. 5. Training: The Attorney General could provide training and support to individuals and agencies involved in the application of the section. This could help to ensure that everyone involved in the process is aware of their responsibilities and understands the legal and procedural requirements of the section. In summary, section 83.13(10) of the Criminal Code of Canada is an important provision that must be carefully considered and strategically employed. By adopting a strategic approach to its application, the Attorney General can ensure that national security and public safety are adequately protected, while also upholding the rights and freedoms of individuals.