INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the procedures and powers related to the examination of a person under an order made under subsection (4) of section 83.28 of the Criminal Code of Canada.
SECTION WORDING
83.28(5) An order made under subsection (4) shall order the examination, on oath or not, of the person named in the order and require the person to attend at the place fixed by the judge, or by the judge designated under paragraph (b), as the case may be, for the examination and to remain in attendance until excused by the presiding judge, and may (a) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;(b) designate another judge as the judge before whom the examination is to take place; and (c) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.
EXPLANATION
Section 83.28(5) of the Criminal Code of Canada outlines the procedure to be followed in the case of an order made under subsection (4). This order can be issued by a judge under specific circumstances related to the potential threat of terrorism. The order will require the person named in the order to attend an examination and remain in attendance until excused by the presiding judge. The examination can be conducted under oath or not and may require the person to bring any relevant items in their possession or control to be presented to the judge. The order can also designate another judge as the one responsible for conducting the examination. Furthermore, the judge making the order may include any other terms or conditions deemed necessary for the protection of the person named in the order or third parties, as well as for the protection of any ongoing investigation. This section is important in the context of the Criminal Code of Canada as it outlines the necessary steps to be taken under specific circumstances related to terrorism. It provides legal power to judges to order individuals to attend an examination, which can help gather important information in the prevention of terrorism. It also ensures that safeguards are put in place for the protection of all involved parties.
COMMENTARY
Section 83.28(5) of the Criminal Code of Canada outlines the procedures for ordering an examination of an individual in connection with an investigation into terrorism. This section is an essential part of the Canadian legal framework for addressing terrorism concerns. The section enables law enforcement agencies to investigate allegations related to terrorism and terrorism financing while protecting the rights of individuals and third parties. The subsection specifies that the examination must take place on oath or not as determined by the judge. The individual must attend the examination in person and remain in attendance until excused by the presiding judge. Failure to comply with this order is deemed a contempt of court. This provision is crucial as it ensures that the individual under investigation participates in the proceedings and cannot be compelled by anyone else to answer questions on their behalf. The subsection also introduces the possibility that the individual may be required to bring along any documents or things under their possession or control. This provision could be used to collect evidence directly from the individual, to reduce the risk of destruction or tampering. It is a significant step in the investigative process, as it may provide authorities with critical evidence to pursue their investigation. Another important provision of the section is the option for the judge to designate another judge as the examiner. This provision acknowledges that some judges may have more expertise in the particular matter, such as a terrorism financing investigation, than the one who ordered the examination. It also helps to manage the workload of the judiciary, who can allocate the work to a more suitable or available colleague. Furthermore, the subsection allows for judges to include any other terms or conditions they deem desirable, including conditions for the protection of the individual's interests and third parties or the ongoing investigation. This provision is crucial as it enables a judge to tailor the terms and conditions of the examination according to the specific case's needs. For example, the judge may impose conditions to protect the confidentiality of the investigation or to prevent the person from fleeing the jurisdiction. In conclusion, Section 83.28(5) of the Criminal Code of Canada is a vital tool in the fight against terrorism and terrorism financing. The provision ensures that law enforcement agencies can investigate allegations related to terrorism while safeguarding the rights of individuals and third parties. The section's flexibility and options for tailoring the examination's terms and conditions make it a valuable instrument in balancing the competing interests of all parties in a terrorist financing investigation. Ultimately, it is necessary to ensure that the rule of law is upheld while addressing threats to national security.
STRATEGY
Section 83.28(5) of the Criminal Code of Canada is a provision that allows for the examination of a person named in a terrorism-related peace bond order. While the provision is intended to help prevent terrorism-related activities, it is also important to ensure that the rights of the person named in the order are protected. Therefore, there are several strategic considerations that must be taken into account when dealing with this provision. The first strategic consideration is ensuring that the language used in the order is clear and precise. This is important because the order must be clear on what is being requested of the person named in the order. The language should clearly outline the specific obligations that the person must comply with and provide sufficient detail to avoid any confusion. The second consideration is ensuring that the order complies with the Canadian Charter of Rights and Freedoms. This means that any terms and conditions set out in the order must be reasonable and justifiable in a free and democratic society. A lawyer should be involved in drafting the order to ensure it complies with the Charter. The third consideration is making sure that the examination is conducted in a fair and impartial manner. This means that the presiding judge must be neutral and objective, and the person named in the order must be given the opportunity to be heard and to defend themselves. The judge must also ensure that the person is not coerced or intimidated during the examination. The fourth strategic consideration is ensuring that the terms and conditions set out in the order are proportionate to the risk posed by the person named in the order. The terms and conditions should not be overly restrictive or burdensome but should be tailored to the specific risks posed by the individual. For example, if the person named in the order is suspected of having access to firearms, the order may require them to surrender any firearms in their possession. Finally, it is essential to consider the potential consequences of non-compliance with the order. Failure to comply with the terms of the peace bond order can result in criminal charges and imprisonment. Therefore, it is important to ensure that the order is clear and that the person named in the order understands the consequences of failure to comply. In terms of strategies that could be employed, it would be beneficial to conduct a thorough risk assessment before seeking the peace bond order under section 83.28. This would involve gathering and analyzing relevant information about the individual, including their background, history, and current circumstances. This information would help to inform the terms and conditions of the peace bond order and ensure they are proportionate to the risk posed by the individual. Another strategy would be to involve the person named in the order in the process as much as possible. This can help to build trust and understanding between the individual and law enforcement and can encourage compliance with the order. It may also be helpful to provide the individual with resources and support to help them comply with the order, such as counseling or access to legal advice. Overall, strategic considerations when dealing with Section 83.28(5) of the Criminal Code of Canada involve ensuring that the order is clear and precise, complies with the Charter, is impartial and fair, is proportionate to the risks posed by the person named in the order, and includes appropriate consequences for non-compliance. Employing strategies such as conducting a thorough risk assessment and involving the individual in the process can help to increase compliance with the order and prevent terrorism-related activities.