Criminal Code

Definition of judge

• 83.28 (1) In this section and section 83.29, judge means a provincial court judge or a judge of a superior court of criminal jurisdiction.

• Marginal note:Order for gathering evidence

  (2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.

• Marginal note:Attorney General’s consent

  (3) A peace officer may make an application under subsection (2) only if the prior consent of the Attorney General was obtained.

• Marginal note:Making of order

  (4) A judge to whom an application is made under subsection (2) may make an order for the gathering of information if the judge is satisfied that the consent of the Attorney General was obtained as required by subsection (3) and

  • (a) that there are reasonable grounds to believe that

    • (i) a terrorism offence has been committed, and

    • (ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order; or

  • (b) that

    • (i) there are reasonable grounds to believe that a terrorism offence will be committed,

    • (ii) there are reasonable grounds to believe that a person has direct and material information that relates to a terrorism offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit a terrorism offence referred to in that subparagraph, and

    • (iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) from the person referred to in that subparagraph.

• Marginal note:Contents of order

  (5) An order made under subsection (4) may

  • (a) order the examination, on oath or not, of a person named in the order;

  • (b) order the person to attend at the place fixed by the judge, or by the judge designated under paragraph (d), as the case may be, for the examination and to remain in attendance until excused by the presiding judge;

  • (c) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;

  • (d) designate another judge as the judge before whom the examination is to take place; and

  • (e) 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.

• Marginal note:Execution of order

  (6) An order made under subsection (4) may be executed anywhere in Canada.

• Marginal note:Variation of order

  (7) The judge who made the order under subsection (4), or another judge of the same court, may vary its terms and conditions.

• Marginal note:Obligation to answer questions and produce things

  (8) A person named in an order made under subsection (4) shall answer questions put to the person by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to non-disclosure of information or to privilege.

• Marginal note:Judge to rule

  (9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing.

• Marginal note:No person excused from complying with subsection (8)

  (10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate the person or subject the person to any proceeding or penalty, but

  • (a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136; and

  • (b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136.

• Marginal note:Right to counsel

  (11) A person has the right to retain and instruct counsel at any stage of the proceedings.

• Marginal note:Order for custody of thing

  (12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, shall order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf.