Pubdate: Mon, 3 Apr 2000 Source: National Post (Canada) Copyright: 2000 Southam Inc. Contact: 300 - 1450 Don Mills Road, Don Mills, Ontario M3B 3R5 Fax: (416) 442-2209 Feedback: http://www.nationalpost.com/commentary.asp?s2letters Website: http://www.nationalpost.com/ Forum: http://forums.canada.com/~nationalpost Author: Luiza Chwialkowska, National Post FUTURE OF CONTROVERSIAL POLICE WIRETAPS RESTS ON COURT RULING A case against a suspected cocaine dealer was thrown out, then reinstated, due to differing legal views on the 'investigative necessity' of listening in to phone lines. This month, the Supreme Court will make a final decision OTTAWA - Canada's wiretapping laws, caught mid-evolution from being among the most lax in the world in the 1970s to being far stricter after the introduction of the Charter of Rights and Freedoms, will face scrutiny in the Supreme Court this month in a case that will determine the fate of a group of accused cocaine dealers from British Columbia. Police say the case of Neil Grandmaison and his alleged partners shows just how firmly courts have tied the hands of law enforcement. But defence lawyers say there can be no turning back to a time when RCMP could listen in on virtually any citizen, just about any time they wanted. The Supreme Court will decide whether police must prove to a judge that a wiretap is an "investigative necessity" of last resort -- or whether they can merely assert that it is the most efficient tool. "What the court says about the 'investigative necessity' requirement will dramatically impact on the utilization of electronic surveillance, the most intrusive investigative technique available to the state," says Alan Young, a professor at Osgoode Hall Law School. "Courts have not always taken investigative necessity very seriously. They have been satisfied, more often than not, by the police simply stating that conventional investigative techniques won't work." The Victoria City Police Department received an anonymous letter on April 21, 1995, which was later used at trial. It read: "I hope you keep tab on Neil Grandmaison ... He has not worked for several years; he is a pipefitter, he lives in a penthouse suite in Songhees, and drives a very expensive car. He says the money can be laundered in real estate, so very difficult to catch him. He does a lot of business and has lots of money. I hope this tip will lead to his arrest." Despite this, and a separate tip from the anonymous Crimestoppers line, ongoing leaks from drug-world informants, numerous stake-outs in front of his home, and months of tailing his Nissan 300ZX as he drove around on suspected drug runs, the Mounties still could not apprehend Joseph Armand Neil Grandmaison, or "Wax" as he was known on the streets. A suspected cocaine dealer, Wax headed a group that was thought to be funnelling large quantities of the drug into the streets and schools of Vancouver and Victoria, probably only competing for clients with a Hells Angels biker gang, according to evidence given in court during the trial of the accused. Codenamed "Project Egbert," the investigation involved 20 to 40 B.C. police and RCMP officers over 10 months. Time-consuming and expensive, Project Egbert was also dangerous. Wax's suppliers were thought to be among the shadiest operatives in Canada, the trial judge heard. His main sources, the trial was told, were thought to be a gang of Russians. According to evidence heard at the original trial, starting in January, 1995, police tailed Mr. Grandmaison and his associates, including a woman named Angela Araujo, who was thought to use teenagers to package and distribute cocaine. Police believed they were investigating an organization of drug traffickers. To prove a conspiracy, police would have to prove an agreement among the suspects to deal in drugs. For months, the investigation progressed slowly, restricted by the police desire to protect the identities and lives of their informants. The suspected dealers knew they were being watched, and pulled action-movie techniques to lose the undercover police, including driving the wrong way down one-way streets while being followed. Frustrated, police eventually applied for and were granted permission to intercept the home telephone, pay phone, cellphone and pager communications of the suspects. The conversations provided enough evidence for police to obtain 14 search warrants. In a series of raids on Oct. 25, 1995, police seized 4.3 pounds of cocaine, cocaine presses, score sheets, restricted and prohibited weapons and large amounts of cash. Wax and his network were brought to court on cocaine charges and faced the possibility, if convicted, of decades in prison. Mr. Grandmaison, 27, and Ms. Araujo, 28, were charged with cocaine offences, along with Victor Camara, 23, Mikel Oulton, 20, and nineteen-year-old Christina Khoury. Mr. Grandmaison and Kevin Shawn Lathangue, a 28-year-old Victoria prison guard, were also charged with conspiracy to traffic in anabolic steroids. Vancouver police arrested Robert Jenkins, 37, and Jolene Dawn Irons, 19, on cocaine-related charges. Others were arrested on gun-related charges. Three years and two trials later Mr. Grandmaison, a body-builder who played in a Kiss cover band, and his coterie remain free. On Halloween, 1996, a B.C. trial judge threw out the case of conspiracy to traffic cocaine brought against Mr. Grandmaison and nine co-defendants. Police were sloppy in their request for a wiretap, said the judge. They got their informants confused and carelessly referred to informant "E" as informant "C" in their affidavit. When they realized their mistake, they arrogantly neglected to inform the court, he said. The cavalier attitude of the police destroyed their credibility and "tainted" the entire wiretap application, he wrote. Worse still, police resorted to a wiretap too quickly, the judge said. Police did not show that the wiretap was their "last resort," as required under Canada's strict wire-tap laws. "It is clear the police had permeated the target organization with a source who was providing apparently concrete information which could have been acted upon without the use of a wiretap authorization," wrote the judge. Police were forced to withdraw their evidence, and all 10 suspects were acquitted. On June 30, 1998, however, the B.C. Court of Appeal rebuked the trial judge for "flawed" reasoning. The mistake in the affidavit was an unintentional typographical error, easily imaginable in a 140-page document that referred to 10 separate informants labelled "A" through "J," the court said. More importantly, the three-judge Appeal Court unanimously agreed that the police did not need to show that the wiretap was their last resort. They needed only to show that electronic surveillance was the "most efficacious" way to investigate. The Appeal Court ordered a new trial and allowed the wiretap evidence to be brought foward. Before a new trial could be held, however, defence lawyers asked the Supreme Court of Canada to clarify the Criminal Code's test for allowing wiretap evidence. In April, the court agreed to hear the case. The RCMP now says that if the Supreme Court agrees with the strict interpretation of the wiretap law and throws out the wiretap evidence forever, not only will Wax's alleged ring go free, but the precedent will henceforth tie the hands of police in the face of organized crime. But lawyers for the suspects argue that if such questionable wiretap evidence is allowed, Canada risks becoming "the most wiretapped nation on Earth." The case has caught Canada's wiretap pendulum in mid-swing. Less than twenty years ago, Canada had some of the world's most lax wiretapping rules. In 1981, Paul Copeland, a Toronto defence lawyer, calculated that Canadians were 19.3 times more likely than Americans to be the subjects of electronic surveillance by police. The Law Union of Ontario told a Senate Committee that not only criminals but even lawyers and judges "now routinely assume that they are the subject of electronic surveillance." "The method of wiretapping used to be called the clipinsky," says Lee Lamoth, editor of the Report on Crime and Profiteering. "Police men would just climb up, clip it on to the wires of the phone and listen." With the introduction of the Charter of Rights and Freedoms the following year, however, the wiretapping was made much more difficult. Before the Charter, police were able to apply to a judge for a wiretap without having to disclose their evidence to the defence. Though a wiretap could be thrown out of court, this rarely happened because the requests went unseen and unscrutinized by defence lawyers. Since the Charter, however, wiretap requests have been unsealed. In the 1980s, Canadian police found them very difficult to use. "We avoided them like the plague," says Bruce Bowie, a former high-level RCMP investigator who is now a private investigator. "Wiretaps became a waste of time. It was difficult to project whether the evidence would be thrown out of court." The new disclosure rules also meant a wiretap request could risk betraying the identity of informants. "You put everything you know into a wiretap affidavit," says Mr. Bowie. "I remember a number of occasions when we had to walk away from a crime being committed ... Because of disclosure rules, the informant or their family would surely be killed." Since the mid-1990s, however, courts have ruled that wiretaps can be used. Section 186 of the Criminal Code of Canada states that a wiretap authorization may be given if police can persuade a judge 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. "Some courts have interpreted the 'or' more liberally than others," Mr. Bowie says. The Grandmaison case, scheduled to be heard on April 11 and 12, will be the first Supreme Court test of the extent of this "investigative necessity." It could determine just how desperate police have to be before they can use a wiretap, and how scrupulous. "It is critical that this issue be argued in this Court before the citizens of this country become the targets of the most widespread, judicially condoned eavesdropping in the Western world, all in the name of efficiency," stated Robert Klaus, lawyer for Mr. Grandmaison, in his appeal application. "It should not be forgotten that although torture may be efficient in the context of a police investigation, it will not be condoned." But if the rules are tightened any more, police say law enforcement will stand no chance against organized crime. "That would mean we would have to be errorless right down to the periods and the word processing errors. Any letter in a two-or three-hundred-page affidavit would have to be precise or your case gets thrown out," says one police officer. "Even Rhodes Scholars can't do that." - --- MAP posted-by: Don Beck