INTRODUCTION AND BRIEF DESCRIPTION
A judge may consider an application for an authorization if the interests of justice warrant it and may fix a period of up to three years.
SECTION WORDING
185(3) Where an application for an authorization is accompanied by an application referred to in subsection (2), the judge to whom the applications are made shall first consider the application referred to in subsection (2) and where, on the basis of the affidavit in support of the application for the authorization and any other affidavit evidence submitted in support of the application referred to in subsection (2), the judge is of the opinion that the interests of justice warrant the granting of the application, he shall fix a period, not exceeding three years, in substitution for the period mentioned in subsection 196(1).
EXPLANATION
Section 185(3) of the Criminal Code of Canada deals with the authorization process for certain investigative techniques, such as wiretapping and electronic surveillance. This section states that when a request for authorization is made, and it is accompanied by an application to extend the authorization after its expiration, the judge must first consider the application for the extension before granting the initial request for authorization. The judge is required to examine the supporting evidence submitted in both applications and determine whether the interests of justice warrant the granting of the extension. If the judge is satisfied that an extension is warranted, they may set a new period, not exceeding three years, in place of the original period. This section is important in ensuring that the investigative techniques are used judiciously and only when necessary in the interests of justice. It also provides some safeguards against potential abuses of these techniques by requiring judges to weigh the evidence supporting each application before granting authorization. Overall, this section serves to balance the need for effective law enforcement with the protection of individual rights and privacy, which are fundamental principles in a democratic society governed by the rule of law.
COMMENTARY
Section 185(3) of the Criminal Code of Canada outlines the process for obtaining authorization for interception of private communications in criminal investigations. This section serves as an important safeguard against abuses of power by law enforcement authorities, by ensuring that all applications for such authorization are subject to careful review and scrutiny by an impartial judge. The section specifies that when an application for interception authorization is accompanied by an application for a related matter under subsection (2), the judge must first consider the latter application. This means that the judge must consider whether the interests of justice warrant granting the related application, before deciding whether to grant the interception authorization. The use of two separate applications is designed to ensure that the scope of the interception is narrowly tailored and restricted to only what is necessary for the investigation. This promotes the principle of proportionality in law enforcement, as only communications that are relevant to the investigation will be intercepted, rather than all communications of an individual or group. This is critical for protecting the privacy rights of Canadians. Moreover, the judge must base their decision on the affidavit submitted in support of the request for authorization and any other affidavit evidence presented. Affidavit evidence is typically used to support the legal basis for the application, detailing the circumstances surrounding the alleged criminal activity and explaining why interception of private communications is necessary for the investigation. This evidence must establish that there are reasonable grounds to believe that the interception will provide evidence related to the investigation and that other investigative methods have been tried and failed or will likely fail. Finally, the section limits the duration of the interception authorization to a maximum period of three years, which provides another safeguard against excessive surveillance. The provision includes the power for renewal but each renewal must be supported with a fresh affidavit-based application. This requires supporting fresh evidence demonstrating that the original grounds for interception have to be invoked anew in order to justify continued interception. In conclusion, section 185(3) serves multiple purposes in protecting the privacy rights of individuals. Its effect is to ensure that only necessary and proportionate interference occurs with the privacy rights of individuals while allowing law enforcement agencies to undertake activities necessary to maintain public safety and protect citizens from serious crime. It effectively promotes transparency and accountability in the interception of private communications by requiring that all applications be subject to independent judicial scrutiny, and by setting strict limits on the duration of the interceptions.
STRATEGY
Section 185(3) of the Criminal Code of Canada is a provision that outlines the procedures for obtaining authorization for wiretaps. It provides a mechanism for balancing the need to investigate and prevent serious crimes with the protection of individual rights, including privacy rights. As such, there are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada. The first strategic consideration is the need to carefully evaluate the evidence presented in the application for authorization. The judge must be satisfied that there are reasonable grounds to believe that the interception of communications is necessary to investigate or prevent serious crimes, and that other investigative techniques have been tried and failed or would likely fail to achieve the same result. It is important to ensure that all relevant facts and evidence are included in the application, and that the application meets the legal requirements. The second strategic consideration is the need to ensure that the application is timely and efficient. There are strict deadlines for applications for wiretaps, and delays can result in the loss of valuable evidence or the expiration of statutory limitations. It is important to work closely with legal counsel and law enforcement agencies to ensure that the application is prepared and submitted as soon as possible, and that any issues or questions are addressed promptly. The third strategic consideration is the need to manage the risk of challenge or appeal. Wiretap evidence is often highly disputed and can be subject to legal challenges. It is important to be prepared for these challenges by ensuring that the application for authorization is legally sound and well-supported by evidence, and that all procedural requirements are met. It is also important to have a strategy in place for responding to any challenges or appeals that may arise. There are several strategies that could be employed to address these strategic considerations. For example, legal counsel could work closely with law enforcement agencies to ensure that evidence is gathered and presented in a comprehensive and persuasive manner. They could also engage in pre-application consultations with the judge to clarify any legal or procedural issues and to ensure that the application is likely to be successful. Additionally, they could work to anticipate and respond to any challenges or appeals by developing a strong legal argument and gathering persuasive evidence. In conclusion, Section 185(3) of the Criminal Code of Canada is a complex provision that requires careful consideration and skilled legal representation. By employing effective strategies and taking the necessary precautions, legal counsel can help to ensure that the application for authorization is successful, efficient, and legally sound, and that the interests of justice are served.