Though members of the public often interpret the word “wiretap” is referring only to listening devices used to intercept telephone calls, criminal defence lawyers and other legal practitioners use the word “wiretap” to refer to any concealed listening or recording device used to intercept private communications. Police use wiretaps to monitor private communications in hopes of obtaining evidence as part of an ongoing criminal investigation.

It is both illegal and unconstitutional for the police to intercept private communications using a wiretap without first obtaining a wiretap warrant. The police can only act in so far as their conduct is empowered by law. There is no law which allows the police to set up a wiretap without prior judicial authorization in the form of a warrant. Thus, any warrantless wiretap is illegal. Moreover, section 8 of the Canadian Charter of Rights and Freedoms guarantees that every person has a right to be free from unreasonable search and seizure. “Search” is defined very widely to include a wiretap. The Supreme Court has ruled that an illegal search is automatically considered unreasonable under section 8. When the police infringe Charter rights, the court has the power to grant the individual infringed upon a remedy. The primary remedy for a breach of section 8 is exclusion of evidence. This means that if the police obtain evidence against an individual using a warrantless wiretap, that individual’s criminal defence lawyer will argue that the wiretap violated the individual’s constitutional rights and that any evidence obtained through the wiretap should be ruled inadmissible at the individual’s trial.

Sections 186 and following of the Criminal Code of Canada govern the procedure for requesting, granting and executing a wiretap. Section 186 of the Code allows a Judge in the Superior Court of Justice to grant a wiretap warrant (unlike almost all other warrants which may be granted by a Justice of the Peace or a Judge in the Ontario Court of Justice).

The police must request a wiretap warrant before using any type of technology that intercepts private communications. Generally speaking this includes: a phone tap, a room probe (“bug”), and a body pack (“wearing a wire”).  However, this may also include video surveillance that also records sound. It is important to note that in private communications between two civilians, any conversation can be monitored or recorded with the consent of one of the parties. For this reason it is legal for an individual to tape all of his or her private telephone calls. However, it is not legal for the police to record or monitor private communications even with the permission of one of the parties involved, usually an undercover officer or confidential informant . Section 184 of the Criminal Code makes it clear that the police cannot rely on the consent to collect evidence using a body pack. Rather, a wiretap warrant must be obtained before the police may legally use a body pack. Thus, while a private individuals is free to record their communications with others, the police may not rely on the consent of one member of a conversation to legally record that conversation; they must obtain a wiretap warrant.

The method of applying for a wiretap warrant differs from the method of applying for every other type of warrants. While most other warrants require that the police swear a document called an information in front of a justice of the peace or judge in the Ontario Court of Justice, to apply for a wiretap warrant the police must prepare a special affidavit request. The affidavit must be written by a senior officer and a representative of the Crown Attorney’s office must approve and sign the request. Wiretaps are the only investigative technique that must be requested jointly by the Police and the Crown. Once the affidavit is prepared an officer must swear that its contents are true, under oath, before a judge of the Superior Court of Justice. The judge will then determine whether or not to grant the request. This is done ex parte, which means that it is done without the knowledge of the person to be tapped. This makes sense as notification to the suspect would undermine the very purpose of the investigation; however, as a result the validity of the application is determined without any opportunity for objection by a criminal defence lawyer.

Section 186 sets out criteria that the judge must consider when deciding whether or not to grant a wiretap warrant. The criteria to obtain a warrant under s. 186 are (i) reasonable and probable grounds and (ii) investigative necessity. Thus, first the police must prove that they have reasonable and probable grounds to believe that the wiretap will reveal evidence to further a specific on-going investigation. The police must demonstrate in the affidavit that they have reason to suspect that the individual to be tapped is involved in a specific type of criminal activity and that the tap will reveal a particular type of evidence. Second, the police must show in the affidavit that there is no other investigative technique by which they could obtain the evidence they are seeking. This means that by the time the police request a wiretap affidavit they have usually exhausted other means of collecting evidence such as an ordinary home search, a covert search, a confidential informant, and police surveillance. The wiretap affidavit must explain why these methods failed where the wiretap can succeed.

If the judge chooses to grant the warrant, the warrant will last sixty days and may be renewed at the end of that period. It is not unusual for a tap to continue for over a year through the use of multiple successive renewals. The wiretap warrant is very expansive and once granted it bestows the police with a number of powers. For example, generally speaking, the warrant will allow the police to use any form of technology – phone tap, room probe, or body pack – to further their investigation at their discretion. Moreover, most wiretap warrants will authorize the police to enter the suspect’s home without his or her knowledge in order to place a room probe.

Every warrant contains an identification clause which specifies which persons and which places may be monitored pursuant to the warrant. The identification clause will generally name: specific persons, specific places, unidentified persons, and unidentified places. The unidentified person’s clause allows the police to monitor conversations between the suspect and individuals who are not known to the police and who may, or may not, be involved in criminal activity with the suspect. The unidentified places clause is also often known as the “resorts to” clause. This allows the police to tap locations that the accused frequents where he or she may use the phone. These places need not be identified in the original affidavit; thus, once the police receive information suggesting that the suspect may engage in private communications in a new untapped location, they may tap that location. This could include, among other locations, the home of the suspect’s friends and family, a telephone booth near the suspect’s home, a hotel room the suspect purchases, and the suspect’s office and office phone. The only limitation to the power to add individuals and locations to the wiretap unidentified at the time of the affidavit is the rule that the warrant cannot authorize the police to tap an unidentified person at an unidentified location. Thus, if the police are tapping Jones and they intercept communications between Jones and Person X which are of interest, they cannot obtain then obtain the phone number from which person X is calling and tap that phone without obtaining a separate warrant for X.

A wiretap may be shown to be illegal and therefore unconstitutional if the warrant which authorized the tap is somehow deficient. Before the Charter, wiretap affidavits were automatically sealed. This created a huge problem from criminal defence lawyers; the only way to have the court unseal the warrant was to show that the officer lied to the court in the affidavit, but it was nearly impossible to argue that the officer lied in the affidavit without having access to the information in the affidavit! This changed in R. v. Dersch, where the Supreme Court of Canada ruled that the defendant was constitutionally entitled to a copy of the affidavit. However, around this time, the government also revised section 189 of the Criminal Code which dealt with the exclusion of evidence collected pursuant to a wiretap in the event that the wiretap warrant was found by the court to be illegal. In the old section 189, the Crown had the burden of proving to the court, beyond a reasonable doubt, that the wiretap warrant was legal. If the criminal defence lawyer could point to any instance of illegality (officer lied, warrant was not specific enough, the proper procedure was not followed, etc.), any evidence obtained pursuant to the warrant would be automatically inadmissible. Now, any application to exclude evidence obtained pursuant to a wiretap must follow the general procedure for excluding evidence under the Charter. This means that the individual raising the issue, the criminal defence lawyer, bears the burden of proving that the warrant violates section 8 of the Charter. In addition, a breach of section 8 no longer leads to automatic exclusion of evidence, so, if the criminal defence lawyer is successful in proving a breach, he or she must subsequently prove that the breach is so significant to warrant exclusion under the Charter. The new procedure makes it much more difficult for criminal defence lawyers to exclude evidence obtained pursuant to an illegal wiretap warrant.

In practice, wiretap warrants are easy to get and quite common in Canada. Canadian police tap more per capita than their counterparts in the United States. Moreover, the wiretap powers in Canada are much more expansive than those granted to police in the United States. In the US, there is a statutory obligation on police in the to minimize the interception of innocent calls. Thus, in the USA all wiretaps are monitored by a human being; he or she is obliged to turn off the tape recorder when the person is speaking to an individual about matters irrelevant to the police. This means that in the US, police are obliged to stop listening when the suspect is speaking to about personal matters unrelated to crime. In Canada there is no such obligation. Usually, the police simply record everything that is said on the tap and review it later to look for evidence. This is problematic for two reasons. Firstly, it means that it is much easier for Canadian police to execute a wiretap. Since the man-power required is negligible (someone simply sets up the tap and everything else happens mechanically) the police do not need to expend a lot of resources to set up a tap. In the US, the monitoring requirement necessitates the use of a lot of officer time and police resources to monitor the tap, providing a disincentive to tap in situations where a tap is not absolutely necessary. Without this disincentive, Canadian police are much more likely to use wiretaps.  Secondly, continuous recording is incredibly invasive. In Canada, if your phone is tapped, the police are listening to everything you say: conversations with your mother, conversations with your significant other, conversations with your doctor or psychiatrist, etc. These conversations are taped and stored at the police station in a file with your name on it. Such a significant invasion of privacy should be used sparingly in our system. Unfortunately, wiretaps have become accepted frequent practice in Canada. Criminal defence lawyers continue to fight against the proliferation of wiretaps using every legal avenue available to limit their use and protect the privacy rights of individual Canadians.

]]> http://blog.torontodefencelawyers.com/2010/10/wiretaps/feed/ 0 http://blog.torontodefencelawyers.com/2010/06/causing-a-disturbance-during-the-world-cup/ http://blog.torontodefencelawyers.com/2010/06/causing-a-disturbance-during-the-world-cup/#comments Thu, 24 Jun 2010 00:50:32 +0000 TDL http://blog.torontodefencelawyers.com/?p=121 World Cup Soccer has hit television screens across the country.  The highly anticipated event causes adrenaline rushes in fans across the globe. Soccer fans should remember that the way they choose to express their jubilation at winning and upset at losing can have criminal law implications. During the World Cup it is common to see people hanging off of cars, waving flags, honking horns, dancing in the streets in an intoxicated state, and, generally, creating a lot of noise. Sometimes the dynamic of a crowd can cause people to forget that the criminal law still applies no matter how many individuals choose the same form of expression. The reality is that some of the gregarious World Cup behavior can attract criminal charges. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

This section of the Criminal Code creates a summary conviction offence.  The matter will be heard before a judge of the Ontario Court of Justice. The accused does not have the option of having a trial by judge and jury.

The word “disturbance” can be given a variety of differing definitions. At one end of the spectrum, “disturbance” means a disruption in the form of an annoyance or irritation. At the more serious end of the spectrum, the word may denote an actual physical disruption which could include violence. In the eyes of the law, not every event that ‘disturbs’ people will constitute an act which “causes a disturbance’. For example, smoking a cigarette or having an inappropriate conversation may disturb some people. However, these acts do not constitute conduct which can “cause a disturbance” according to the criminal law.

The phrase “cause a disturbance” has been definitively interpreted by the Supreme Court of Canada in R v. Lohnes, [1992] S.C.J.No. 6. In that case, the Supreme Court of Canada clarified that for purposes of the criminal law, a “disturbance” must have a secondary impact- i.e. A manifested interference with the ordinary state of affairs. The “disturbance” contemplated by s.175(1)(a) is something more than a mere emotional upset or annoyance.  The offensive conduct must cause an externally manifested disturbance of the public peace. For World Cup fans to run afoul of the criminal law, the celebration of a victory or the anger at defeat must cause an individual to express himself in some way that creates a disturbance of the public peace. The offence has two essential components:

1) The commission of one of the enumerated acts (fighting, screaming, shouting, swearing, singing or using insulting or obscene language, being drunk, impeding or molesting other persons); and,

2) causing a disturbance in or near a public place.

Whether or not the offending conduct has “caused a disturbance”, is a question of fact that will be determined by the court. The Court will consider the degree and intensity of the activity complained of and the degree and nature of the ‘peace’ that can be expected in the particular location at the particular time. The contextual circumstances of the behaviour is a very important consideration.  This means that to a certain extent the bar of appropriate(legal) behaviour may vary depending on the context. The same sentiment which may be expressed legally on College Street after Brazil, Portugal or Italy has scored a goal, may be illegal in a quiet suburb.  Yelling, screaming and swearing in Little Italy, when the Italian soccer team scores a winning goal, is not likely to cause a disturbance. The nature and degree of peace on College Street during the celebration of an Italian win is such that honking your horn and yelling does not cause a disturbance. Loud celebrations during World Cup season on College in the afternoon are markedly different from the same type of celebrations at 4.a.m. in a residential area where everyone is sleeping. The latter is more likely to be viewed by the Courts as the type of behavior that can cause a disturbance. Whether or not the behavior complained of actually constitutes the offence of ‘causing a disturbance’ is dependent on the consequences which arise from the behavior.

When you are celebrating those winning goals it is important to be aware of your surroundings. Living in a multi-cultural city like Toronto creates an intense situation during the World Cup. It is important to be mindful of the variety of cultures and backgrounds present in your environment. Yelling screaming and swearing in celebration with fellow supporters is different from yelling, screaming and swearing at the opposition. Shouting abusive language by itself will not likely create criminal liability. However, even in Little Italy, there is a limit to the type of celebratory behaviour which is tolerated. Starting a fight or a riot in the street is more serious and is likely to give rise to an offence under this section of the Code. The use of insulting or obscene language may initiate a “disturbance”. It is the foreseeable impact of the act which matters. The use of insulting and obscene language is not uncommon during the World Cup. Insulting another person in the street in a loud voice, and thereby attracting a crowd, may have criminal repercussions. When the use of insults or obscene language cause disorder or agitation and interfere with the normal use of the public area, a “disturbance” has been caused, and the perpetrators may be charged.

In order to secure a conviction on a charge of causing a disturbance the prosecution must show that the resulting disturbance was reasonably foreseeable in the particular circumstances. The person who caused the disturbance must have been able to foresee that such a reaction would result from his/her behavior. It will be up to a court to determine whether or not the perpetrator could have reasonably foreseen the outcome. However, it is important to remember that the Courts assessment of foreseeability is contextual. Therefore, the heightened state of emotions during the World Cup, and the increased parameters of civilized debate, are factors that the Court will ordinarily take into consideration. The Court will determine whether or not it would be reasonable for a person to foresee the “disturbance” quality of their actions. As stated, the same behaviour which may be illegal in the sleeping suburbs may be perfectly legal during a World Cup celebration. Context is everything.

Please don’t get the impression that during the World Cup there are no limits on what a person is legally permitted to do so long as they are celebrating or expressing their disappointment. Although more extreme behaviour may be tolerated, there is a point where outrageous behaviour will give rise to criminal consequences.

So, enjoy the World Cup and celebrate responsibly.  If you have been charged with “causing a disturbance” contact Kostman and Pyzer, Barristers for the best defence.

Entrapment is one of the many defences available in the criminal justice system. However, criminal defence lawyers will only pursue a defence of entrapment if the facts suggest that this defence may be successful. Only rarely will the facts of the case support a defence of entrapment.

All defences are split into two categories: excuses and justifications. Justification defences are defences the accused can raise to show that he or she did the right thing in the circumstances and should therefore not be punished. The best example of this is self-defence. Defendants who raise an excuse defence, on the other hand, admit that they committed a crime and acted immorally, but assert that they have an excuse for the way they acted. A good example of an excuse defence is mental illness. Entrapment is also an example of an excuse defence. This means that when a defendant raises a defence of entrapment, they admit to committing the crime in question, however, they argue that they have a reasonable excuse for their conduct.

The idea behind entrapment is that the individual was enticed or provoked into committing a crime by the police. When the police overstep their duty to investigate crime and instead initiate or create a crime, the defence may arise. The rationale behind the defence is that it constitutes abuse of process on the part of the Crown prosecute an individual, if his or her crime was motivated by police instigation. As a result, if the defence can establish entrapment, the court will stay the proceedings against you. The result of a stay is that the case against you cannot proceed, no guilty conviction is entered against you and the incident will not appear on your criminal record.

A defence of entrapment tends to be available on charges relating to drugs or prostitution. The general scenario is that the police will have an undercover agent approach an individual soliciting sex or trying to buy drugs. If the individual agrees to purchase sex or sell drugs, the police will then arrest them on charges of solicitation for the purposes of prostitution or trafficking in narcotics. If the police conduct reached the point that they are actively encouraging an individual who would not ordinarily have committed a crime to commit an illegal act, the defence of entrapment may become available.

The defence of entrapment was successfully raised in the case of R. v. Mack. Mack was a former drug addict who had reformed and given up drugs with the help of yoga. Nonetheless, police officers decided to target Mack in an undercover operation to search for evidence of drug trafficking. The police enlisted two confidential informants to contact Mack. The informants approached Mack asking for drugs, but he refused to sell them. Later, the informants followed Mack to a yoga retreat while still undercover and harassed him to arrange a drug deal for them. Mack still refused to be involved in any form of drug transaction. Finally, the confidential informants took Mack on a walk in the woods, where they told him that their “people” were coming into town today and needed drugs. The informants told Mack that their people would be very “upset” if Mack could not get them the drugs. Then, the confidential informants showed Mack a pistol and said, “someone could really get lost out here in the woods”. Following that threatening statement, Mack relented and agreed to procure a large amount of cocaine for them. Mack showed up at the arranged transaction spot, was shown a suitcase of money, and made the exchange. Unbeknownst to Mack, the two men he was making the drug exchange with were undercover police officers. Following the exchange, Mack was arrested.

The Supreme Court of Canada allowed the defence of entrapment to succeed in Mack and stayed the proceedings against him. The court emphatically explained that the police should not engage in “random virtue testing” of the population. By this the court meant that the police should not test the virtue of individual citizens by offering them the opportunity to commit a crime at random. When the police do this, they seem to create crime and then arrest people for the crimes they create. The individual arrested may never have committed a crime in his or her life if not for his or her interactions with the police. Such conduct on the part of the police offends our justice system’s fundamental values of justice and fairness.

In Mack the Supreme Court laid down a test to determine when entrapment has occurred. At the first stage of the test, the court asks whether the police have targeted individuals based on a reasonable suspicion that the individual is involved in crime or through involvement in a bona fide investigation. According to the court, anything short of reasonable suspicion or a bona fide investigation would constitute random virtue testing. A bona fide investigation is an authorized investigation in a targeted area. For example, the police can target a particular area if they have reasonable grounds to believe criminal activity is prevalent there; however, they cannot walk the streets at random posing as civilians and trying to encourage individuals to commit crimes. If the police target an individual who they do not have reasonable grounds to suspect is involved in criminal activity or they target random people outside the context of a bona fide investigation, the defence of entrapment will operate to stay the proceedings against the defendant.

Even if the first part of the test is not met, the defence of entrapment may still be available to the defendant under step two of the test from Mack. At step two, the court must consider a number of factors to determine whether the police manipulated or directed the defendant to commit the crime. The court refers to this as “planting the seed of crime” within the individual. The idea is that, by “planting the seed of crime”, the police cause a person who may never have committed a crime to engage in criminal activity. In the case of Mack, the court determined that even though the police had reasonable grounds to suspect that Mack may be involved in criminal activity, they went so far as to “plant the seed of crime within him”; thus, the court allowed the defence of entrapment under the second branch of the test.
In Mack the court lists a number of factors to help determine whether the police crossed the line and “planted the seed of crime”.

The list of factors for the court to consider are as follows:
• the type of crime being investigated and the availability of other techniques for police detection of its commission;
• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
• the persistence and number of attempts made by the police before the accused agreed to committing the offence;
• the type of inducement used by the police including: deceit, fraud, trickery or reward;
• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
• the existence of any threats, implied or express, made to the accused by the police or their agents; and
• whether the police conduct is directed at undermining other constitutional values.

The court will look at these factors to determine whether or not to stay the proceedings due to entrapment.

Make sure that you are represented by competent criminal defence lawyers. Call Kostman and Pyzer, Barristers.