INTRODUCTION AND BRIEF DESCRIPTION
This section allows for the covert removal of a tracking device, after the expiry of a warrant, upon application in writing supported by an affidavit and subject to certain conditions.
SECTION WORDING
492.1(5) On ex parte application in writing supported by affidavit, the justice who issued a warrant under subsection (1) or a further warrant under subsection (3) or any other justice having jurisdiction to issue such warrants may authorize that the tracking device be covertly removed after the expiry of the warrant (a) under any terms or conditions that the justice considers advisable in the public interest; and (b) during any specified period of not more than sixty days.
EXPLANATION
Section 492.1(5) of the Criminal Code of Canada allows for the covert removal of a tracking device after the expiry of a warrant issued by a justice under subsection (1) or (3). This can be done through an ex parte application in writing, supported by affidavit, made by any justice with the jurisdiction to issue warrants. The application must be made after the expiry of the warrant and must be authorized under terms and conditions that are deemed advisable in the public interest by the justice. The authorization can be granted for a specified period of up to sixty days to allow for the covert removal of the tracking device from a vehicle or other item being tracked. The conditions of the authorization may vary, but the public interest must be the overriding concern in granting the authorization. This provision is in place to allow for the continuation of an investigation beyond the expiry of a warrant for tracking. The covert removal of the tracking device can provide investigators with valuable information that may not have been obtained otherwise. The conditions imposed by the justice will ensure that this power is not abused and that privacy rights are protected. Overall, Section 492.1(5) allows for the continued surveillance of individuals who are the subject of a criminal investigation, even after the expiry of the original warrant. It provides a valuable tool for law enforcement agencies to gather evidence and ultimately brings those who break the law to justice.
COMMENTARY
Section 492.1(5) of the Criminal Code of Canada has sparked controversy and debate amongst legal experts, privacy advocates, and law enforcement officials since its introduction. This section allows for the covert removal of a tracking device after the expiry of a warrant, and is subject to the approval of a justice who issued the warrant or any other justice having jurisdiction to issue such warrants. This provision has raised questions about the proper balance between individual privacy rights and public safety concerns, as well as the potential for abuse or misuse by law enforcement agencies. At its core, this provision aims to address the challenges faced by law enforcement agencies in investigating criminal activities without violating individual privacy rights. Tracking devices have become an increasingly important tool in the fight against crime, especially with the rise of technology-enabled crimes and the need to track suspects in real-time. These devices, however, can only be deployed with a warrant issued by a justice of the peace. The warrant must specify the nature of the offence, the identity of the suspect, and the period of time for which the device may be used. Once the warrant has expired, the use of the tracking device must end. However, in certain cases, law enforcement officials may need to continue tracking the suspect for a period of time after the warrant has expired in order to gather additional evidence or monitor ongoing criminal activities. This is where Section 492.1(5) comes into play. It allows for the covert removal of the tracking device, subject to certain conditions, including the approval of a justice of the peace. While this provision may be intended to facilitate effective law enforcement, it has raised concerns about individual privacy rights. Opponents argue that the covert removal of a tracking device can be seen as a violation of a suspect's privacy, even if it occurs after the expiration of a warrant. They argue that the use of tracking devices is already a significant intrusion into a suspect's privacy, and that covert removal only exacerbates this intrusion. Furthermore, there are concerns that this provision could be abused or misused by law enforcement officials, potentially leading to a violation of human rights. Privacy advocates have pointed to similar cases in the United States, where the use of tracking devices without a warrant has been deemed unconstitutional. They argue that Section 492.1(5) could also be deemed unconstitutional, as it allows for covert removal of a tracking device without a warrant or any additional legal oversight. They argue that this provision fails to strike an appropriate balance between individual privacy rights and public safety concerns. Proponents of this provision argue that it is necessary in order to effectively investigate criminal activities and to protect public safety. They argue that the use of a tracking device is a minimally intrusive means of gathering evidence, and that the covert removal of the device is a necessary step to ensure that suspects do not become aware that they are being monitored. They also point to the fact that the use of tracking devices is authorized by a warrant, and that the covert removal of the device is subject to the approval of a justice of the peace, thereby providing an appropriate level of legal oversight. Overall, Section 492.1(5) of the Criminal Code of Canada raises important questions about the balance between individual privacy rights and public safety concerns. While the use of tracking devices is a necessary tool for law enforcement agencies, their use must be subject to appropriate legal oversight and safeguards. As the use of technology in criminal investigations continues to evolve, it is critical that lawmakers strike an appropriate balance between these competing interests, in order to ensure that suspects' privacy rights are protected while also ensuring that public safety is maintained.
STRATEGY
Section 492.1(5) of the Criminal Code of Canada allows for the authorized covert removal of a tracking device after the expiry of a warrant. This provision is meant to protect the privacy rights of individuals while still allowing for the investigation of criminal activity. However, this section also presents strategic considerations that must be carefully weighed before employing any action under it. One consideration is the potential impact on the public interest. As stated in the provision, any authorization for covert removal must be made in the public interest. This means that the action should only be taken if it is deemed necessary to protect the safety of the public or prevent criminal activity. Any authorization made should weigh the potential benefits against the potential harm to the public interest. Another consideration is the need for a sworn affidavit. To obtain an authorization for covert removal, an ex parte application in writing supported by affidavit must be filed. This means that there must be sufficient evidence to justify the request for such an authorization. The person or organization making the request must be able to demonstrate to the justice that there are reasonable grounds to believe that the removal of the tracking device will further the investigation or assist in the prevention of crime. A third consideration is the time period during which the covert removal can take place. The justice may authorize covert removal during any specified period of not more than sixty days. This means that any covert removal must take place within this time frame. Therefore, any strategy for employing this provision must be timed carefully to ensure that the removal can be carried out within the allotted time period. Strategies that could be employed when dealing with this section of the Criminal Code of Canada might involve working closely with law enforcement agencies to determine the best approach to obtaining authorization for covert removal. This could involve gathering evidence, verifying its reliability, and presenting it in a compelling manner to the justice who has jurisdiction to issue the warrant, thus showing the public interest. Another strategy may be to carefully consider the potential consequences of obtaining authorization for covert removal and to assess whether there are alternative investigative measures that might be used to achieve similar results. In some cases, it may be deemed too risky or not in the public interest to obtain authorization for covert removal. Therefore, exploring other avenues may be necessary. Overall, any strategy employed when dealing with section 492.1(5) of the Criminal Code of Canada must be carefully considered and should prioritize the public interest while also respecting the privacy rights of individuals. The use of this provision should always be weighed against the potential harm it may cause, and alternative approaches should be explored where appropriate.