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In this episode, Mike discusses the BC Court of Appeal decision R. v. Chen, 2022 BCCA 296 where it is considered a “best practice” for a police affiant to educate an authorizing judge about how the law operates in an application to intercept private communications. Although an affidavit may satisfy the requirements that trigger the exception to investigative necessity under s. 186(1.1) of the Criminal Code, it would seem a police affiant is now being asked to school a judge by drawing their attention to the law as it applies. If that's what it takes, I suppose this "advice" should not be ignored or you may run the risk of having your authorization struck down.
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Criminal Code
s. 186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice to do so; and
(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or 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.
Exception for criminal organizations and terrorism offences
(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to
(a) an offence under section 467.11, 467.111, 467.12 or 467.13;
(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
(c) a terrorism offence.
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