INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the conditions under which a judge may make an order for gathering information related to a terrorism offence.
SECTION WORDING
83.28(4) The judge to whom the application is made may make an order for the gathering of information if they are satisfied that the Attorney General’s consent was obtained as required by subsection (3), and (a) that there are reasonable grounds to believe that (i) a terrorism offence has been committed, (ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order, and (iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means; or (b) that (i) there are reasonable grounds to believe that a terrorism offence will be committed, (ii) there are reasonable grounds to believe that a person has direct and material information that relates to the offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit the offence referred to in that subparagraph, and (iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.
EXPLANATION
Section 83.28(4) of the Criminal Code of Canada pertains to the gathering of information related to terrorism offences. It allows a judge to grant an order for the gathering of information if certain criteria are met. The first requirement is that the Attorney General's consent must be obtained as specified in subsection (3) of the same section. The judge may issue an order for the gathering of information if there are reasonable grounds to believe that a terrorism offence has been or will be committed, and information related to the offence can be obtained as a result of the order. Additionally, the judge may grant an order if there are reasonable grounds to believe that a person has information directly related to a terrorism offence or the whereabouts of an individual suspected of committing such an offence. However, it is important to note that the judge may only grant an order for the gathering of information if reasonable attempts have been made to obtain the required information by other means. This condition is significant as it ensures that the use of such orders is limited to when other options have been exhausted. The ultimate aim of Section 83.28(4) is to ensure that national security and safety are preserved by enabling law enforcement authorities to gather information that may prevent a terrorism offence from being committed or to apprehend those who have already committed such offences. At the same time, the section emphasizes the importance of respecting individuals' privacy and ensuring that the gathering of information is conducted only when necessary and appropriate.
COMMENTARY
Section 83.28(4) of the Criminal Code of Canada grants a judge the power to order the gathering of information in instances where a terrorism offence has been committed or is set to be committed, and where there are reasonable grounds to believe that information concerning the offence can be obtained through the order. The section also allows for the gathering of information in instances where there are reasonable grounds to believe that a person has direct and material information relating to a terrorism offence. The provision addresses the need for extensive information gathering in terrorism-related investigations while ensuring that the rights of individuals are protected. It is essential to balance the need for effective law enforcement with the need to respect individual rights. In this regard, the section requires that the Attorney General's consent has been obtained before an application for information gathering can be made. The requirement for the Attorney General's approval creates a check on the power of law enforcement agencies and ensures that information gathering is not done arbitrarily. This section is particularly relevant in the current global context, where terrorism has become a significant threat to national and international security. The provision recognizes the need for proactive measures to prevent terrorist activities while safeguarding citizens' rights. The section also requires that other means of obtaining information must have been attempted unsuccessfully before resorting to the gathering of information through the order. This requirement creates a threshold that investigators must meet before being granted the power to gather information. It ensures that information gathering is necessary and not just a way to cast a wide net and hope that something sticks. It is crucial to note that the section limits the scope of information gathering only to information related to terrorism offences. This limitation ensures that the order's power is not exploited to gather information unrelated to terrorism, which could constitute a violation of individual rights. Additionally, the section allows for judicial oversight by requiring a judge to make an order for information gathering. The involvement of a judge ensures that the order's power is not used in a way that infringes on individual rights. The judge must be satisfied that there are reasonable grounds to believe that the information sought through the order will aid in the investigation of the terrorism offence. In summary, Section 83.28(4) of the Criminal Code of Canada is a practical and effective provision that recognizes the need for information gathering in terrorism-related investigations. It balances this need with the crucial protection of individual rights and judicial oversight. While there is a need for law enforcement agencies to have adequate powers to prevent terrorist activities, such powers must be regulated to prevent abuse and protect individual rights. This section represents a balanced approach that achieves this objective, making it a significant tool in the fight against terrorism.
STRATEGY
Section 83.28(4) of the Criminal Code of Canada allows for the gathering of information related to terrorism offences. This provision is aimed at providing law enforcement agencies with tools that are necessary to prevent and investigate terrorist activities. However, the use of these tools can have significant implications for civil liberties and human rights. Therefore, it is important to consider various strategic factors when dealing with this section of the Criminal Code of Canada. One of the strategic considerations is the need to balance the prevention of terrorism with the protection of human rights. The gathering of information under this section can involve the use of intrusive measures such as surveillance, searches, and seizures. It is important to ensure that these measures are not applied arbitrarily and that they are justified by reasonable grounds. The authorities must also ensure that the information obtained is not used to violate the rights of individuals who are not involved in terrorist activities. Another strategic consideration is the need to maintain trust and confidence in law enforcement agencies. The use of powers under this section can be controversial, and it can lead to public scrutiny. To maintain trust and confidence, law enforcement agencies must ensure that they act transparently, follow due process, and are accountable for their actions. The authorities must also provide clear explanations to the public regarding the necessity and proportionality of the measures used. Strategies that could be employed to address these strategic considerations include developing clear policies and guidelines for the use of powers under this section. These policies should emphasize the need for balance between preventing terrorism and protecting human rights. They should also outline the procedures that need to be followed when applying for and using these powers. Another strategy is to build partnerships with community organizations and individuals to encourage reporting of suspicious activities. This approach can help to prevent terrorism while also building trust and confidence in law enforcement agencies. The authorities can promote awareness and education programs to teach individuals how to identify and report suspicious activities. In conclusion, the gathering of information under section 83.28(4) of the Criminal Code of Canada is a crucial component of terrorism prevention and investigation. However, it is important to consider various strategic factors when dealing with this section. The authorities need to maintain a balance between preventing terrorism and protecting human rights. They must also follow transparent and accountable procedures and build partnerships with individuals and community organizations.