Pubdate: Fri, 15 Dec 2000
Source: National Post (Canada)
Copyright: 2000 Southam Inc.
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Author: Luiza Chwialkowska

SUPREME COURT TIGHTENS STANDARDS ON POLICE WIRETAPS

New Trial In B.C. Drug Case: Ruling A Protection Against 'Unwanted Fishing 
Expeditions'

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 A 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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