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December 15, 2000

Supreme Court tightens standards on police wiretaps

New trial in B.C. drug case: Ruling a protection against 'unwanted fishing expeditions'

Luiza Chwialkowska
National Post

OTTAWA - Wiretapping is a "highly intrusive" police power to be used only in the absence of any other reasonable method of investigation, the Supreme Court ruled yesterday in a decision that tightens police forces' authority to use electronic surveillance.

The 9-0 decision ends legal confusion over wiretaps that saw some courts allow them only as a "last resort," while others granted police wide discretion to listen in on private conversations.

The court did, however, uphold an order for a new trial for a group of accused cocaine traffickers who had been acquitted after a Victoria judge threw out wiretap evidence against them. The decision sends Neil Grandmaison, Christina Khoury, Angela Araujo and six other members of an alleged drug ring back to court to face charges of dealing in bulk cocaine on Vancouver Island in the mid-1990s

The top court rejected the reasoning, though not the outcome, of a 1996 B.C. Court of Appeal decision that ordered a new trial for the accused traffickers. The B.C. court ruled police needed only to prove that wiretapping the suspects was the "most efficacious" method to penetrate the group.

That standard was too lax, the Supreme Court declared yesterday, adding necessity, not efficiency, must guide police.

"The proper test concerns whether, practically speaking, there is not other reasonable means of investigation," wrote Mr. Justice Louis LeBel in his first judgment since joining the court in January.

Michael Code, a lawyer for the accused, was disappointed that his clients will face a new trial, but pleased the top court held police to a more stringent standard.

"The judgment clarifies the previous law significantly," he said. "The court has restored the law to the statutory language that Parliament originally used -- which has been watered down significantly in the case law."

But one spokesman for Canadian police said yesterday the decision will not affect their operations.

"We're pleased with the decision. It affirms the way we've been interpreting the Criminal Code," said Detective Chief Superintendent Frank Ryan of the Ontario Provincial Police, speaking on behalf of the Canadian Association of Chiefs of Police.

Judge LeBel said the court sought to strike an "appropriate but often elusive balance between the interests of the state and those of its citizens."

"Wiretapping is highly intrusive. It may affect human relations in the sphere of very close, if not intimate, communications, even in the privacy of the home," he wrote.

Citizens must be "protected against unwanted fishing expeditions by the state and its law enforcement agencies," he added.

The maiden decision of the soft-spoken judge revealed colourful prose, and may mark the first time a Supreme Court of Canada decision has made reference to a Sanskrit sex manual.

"So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual," Judge LeBel wrote, urging police to explain clearly and concisely why a wiretap is necessary.

Code-named "Project Egbert," the investigation into Neil Grandmaison and his alleged associates involved 20 to 40 B.C. police and RCMP officers and lasted more than 10 months. After failing to build their case through stakeouts and car chases, investigators applied for a wiretap permit based on evidence provided by secret informants. The intercepted conversations allowed police to obtain 14 search warrants and uncover several kilos of cocaine as well as cocaine presses and weapons.

Numerous errors in the wiretap affidavit, and the fact that police had not shown they had exhausted all other alternatives, led the trial judge to exclude the evidence connected to the wiretaps. The accused were acquitted as a result.

The Supreme Court said the trial judge's test was too harsh.

"A pure last resort test would turn the process of authorization into a formalistic exercise that would take no account of the difficulties of police investigations targeting sophisticated crime," the decision states.

The Criminal Code allows wiretaps if "other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed," or if the matter is so urgent other methods would be "impractical."

But Alan Young, a law professor at York University, said the rules governing wiretaps have been gradually relaxed over 30 years from pure "last resort."

"I truly believe that Parliament intended wiretaps would be used only if all other methods were exhausted," he said. "This decision tilts the balance in favour of crime control over due process."

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