INTRODUCTION AND BRIEF DESCRIPTION
An ex parte and written application must be made with an accompanying affidavit to a judge in order to authorize the interception of private communications in the context of a criminal investigation.
SECTION WORDING
185(1) An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by (a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or (b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case, and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters: (c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence, (d) the type of private communication proposed to be intercepted, (e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used, (f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made, (g) the period for which the authorization is requested, and (h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
EXPLANATION
Section 185(1) of the Criminal Code of Canada explains the process for obtaining an authorization under section 186 for intercepting private communications relating to an ongoing criminal investigation. This application must be made ex parte, meaning without the knowledge or participation of the individual whose communications are being intercepted, and in writing to a judge of a superior court of criminal jurisdiction or judge as defined in section 552. It must be signed by the Attorney General of the province or the Minister of Public Safety and Emergency Preparedness, or their designated agent, and be accompanied by an affidavit detailing the grounds and justification for the interception. This includes information such as the facts of the offence, the type of communication proposed to be intercepted, and a list of all individuals whose communication may assist the investigation, among other details. This section helps to balance the legal right to privacy with the need for law enforcement to investigate and prevent criminal activity. It ensures that the interception of private communication is done with proper legal authorization and oversight, and only for valid reasons such as preventing serious harm or prosecuting criminal offences. The process outlined in this section helps to protect individuals' right to privacy while still allowing law enforcement to carry out their duties effectively and within the boundaries of the law.
COMMENTARY
Section 185(1) of the Criminal Code of Canada outlines the proper protocol for the ex parte application for authorization under section 186. This section is a sub-section to the broader topic of interception of communications, which is generally considered a sensitive area of law as it involves the violation of an individual's privacy rights. Thus, the gravity of the case must justify surveillance, making the process of applying for the authorization strict and thorough, in order to effectively balance privacy rights and the need to investigate crime. The first key consideration in this section is that the application must be made ex parte, meaning that it is made by one party without notice to the opposing party or parties. This is done to ensure that the target of the surveillance is not given the opportunity to destroy evidence or evade capture. Additionally, the application must be made in writing to a judge of a superior criminal court or a judge defined in Section 552. This ensures that the judiciary is aware of and takes responsibility for authorizing surveillance, rather than it being carried out by the executive branch, which could pose a threat to the checks and balances in Canadian democracy. The signatories of the application are also significant - if the offense under investigation is one in respect of which proceedings may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, the application must be signed by the Minister of Public Safety and Emergency Preparedness or an agent designated for such purposes by the Minister or Deputy Minister personally. In the case that the offense is in relation to a particular province, the application must be signed by the Attorney General of that province, or a Deputy Attorney General personally. These requirements ensure proper legal authorization and checks on the application for surveillance. The affidavit accompanying the application must also contain specific details, including the facts relied on to justify the belief that authorization should be given, the type of communication proposed to be intercepted, names, addresses, and occupations of persons who may assist in the investigation, and a general description of the location and interception process. Additionally, the affidavit must indicate the number of previous authorization applications regarding the same offense and persons previously named, along with the judge to whom each application was made. Lastly, the application must detail the period of time for which authorization is requested, and provide reasons detailing why other investigative procedures have failed or are unlikely to succeed, or why the urgency of the matter makes other investigative procedures impractical. This section of the Criminal Code of Canada is significant because it ensures that authorization for surveillance is not done lightly or without adequate justification. By limiting the application to exigent circumstances only and ensuring that the process is thorough, regulators are able to balance privacy rights with the need to investigate and prosecute crimes. Furthermore, given the sensitivity of communications surveillance, the parliamentary process allows for oversight and review of the practices to maintain transparency, accountability, and effectiveness in law enforcement.
STRATEGY
Strategic Considerations When dealing with Section 185(1) of the Criminal Code of Canada, certain strategic considerations must be taken into account to ensure that the authorization is granted and upheld in court. One of the first considerations that must be noted is that any application for an authorization must be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in Section 552. This means that only one party, typically the Crown, will make the application and present evidence to support it. Therefore, careful consideration must be given to the evidence presented and its likely effectiveness in persuading the judge to grant the authorization. Another crucial consideration is that the application must show that there are reasonable grounds to justify granting the authorization, and that other investigative procedures have failed or are unlikely to succeed. Therefore, the Crown must carefully assess the evidence they have gathered so far to determine whether it will be sufficient to meet this standard. This will often require expert analysis of complex evidence, as well as extensive collaboration with law enforcement and other stakeholders to ensure that the evidence is credible and reliable. Another important consideration is that the authorization must be narrowly tailored to the specific communication types and individuals targeted in the investigation. This means that the Crown must carefully define the types of communication that will be intercepted, such as phone calls, emails, or text messages, as well as the specific individuals who are the targets of the investigation. Careful attention must also be given to the duration of the authorization, which should be limited to the shortest possible time needed to achieve the investigative objective. Strategies Effective strategies for dealing with Section 185(1) of the Criminal Code of Canada will vary depending on the specific circumstances of the investigation. However, some general strategies that may be effective include the following: - Gather comprehensive evidence: To persuade a judge to grant an authorization under Section 185(1), the Crown must provide comprehensive and credible evidence that justifies the interception. This may require extensive collaboration with law enforcement, expert analysis of complex data, and careful documentation of all steps taken in the investigation. - Carefully define the targets and scope of the authorization: To comply with Section 185(1), the authorization must be narrowly tailored to the specific individuals and communication types that are the targets of the investigation. This requires careful definition of the scope of the authorization, including clear and specific language defining the targets and duration of the authorization. - Work with other stakeholders: To ensure the success of the authorization, the Crown should work closely with law enforcement, other government agencies, and industry stakeholders. This may include collaborating on evidence gathering, developing communication protocols, and sharing information to ensure that the targets of the investigation can be effectively monitored. - Be mindful of privacy concerns: Interception of private communications can raise serious privacy concerns, and the Crown must be mindful of these concerns throughout the investigation. This may require collaboration with privacy experts and careful attention to legal and ethical guidelines regarding surveillance and data collection. Overall, dealing with Section 185(1) of the Criminal Code of Canada requires careful planning, extensive collaboration, and a detailed understanding of the legal and ethical considerations involved in surveillance and data collection. Effective strategies must be grounded in comprehensive evidence gathering, careful targeting of the authorization, and a rigorous adherence to privacy and legal guidelines.