Ontario police avoided judge in wiretaps of native protest, Brant charges

CBC learns OPP targeted 4 people in wiretaps, didn't use normal requirement for judge's approval

Last Updated: Tuesday, July 22, 2008 | 2:31 PM ET

CBC News

The leader of a First Nations protest during last summer's Aboriginal Day of Action is questioning why his brother, a prominent defence lawyer, was included in Ontario Provincial Police emergency wiretaps despite his lack of involvement in the action.

Mohawk leader Shawn Brant smiles toward a native elder during the June 2007 protest that led police to shut the 401 near Deseronto, Ont. (Tom Hanson/Canadian Press)Mohawk activist Shawn Brant's comments on Tuesday came after the CBC learned the OPP used emergency wiretaps to eavesdrop on four people — Brant, his brother Gregory and two friends — during last summer's Aboriginal Day of Action, skirting the normal need for court approval.

In a now famous call recorded by his own force that emerged following the lifting of a publication ban on Friday, OPP Commissioner Julian Fantino told Brant, "your whole world’s going to come crashing down" if Brant did not order aboriginal protesters to withdraw from blockade sites.

At a press conference at Queen's Park in Toronto on Tuesday, Brant said he believes police used an emergency provision because they would never get the interceptions on his brother approved by a judge.

"I don't believe, given his integrity and reputation, that a judge in the area would accept that," said Brant, who is facing a possible 12 years in prison for a protest that led police to shut down Highway 401, and CN to shut down rail lines in eastern Ontario.

When asked whether his brother had any involvement on June 29, 2007, Brant replied: "Absolutely none."

"We have opposing views, and there's absolutely no association in this," he said. "That's what's troubling about this."

While the Mohawk leader was seen as defying the law, it is not clear what, if anything, his brother and the other targets were suspected of. They have not been charged. The CBC has not been able to contact Gregory Brant for comment.

Under the Criminal Code, most wiretaps need a judge's approval but police can act on their own in extreme emergencies if they suspect the targets of the surveillance are about to commit serious crimes.

Fantino under fire

The revelations of additional police wiretaps without judicial approval has brought additional pressure on Fantino, who already is under fire for his comments and his decision to intervene personally in negotiations with the Mohawk protest leader despite specially trained negotiators being on the scene and in regular contact with Brant.

Fantino issued a statement on Monday, saying the peaceful end of the standoff "speaks for itself."

"I am disappointed that this matter is being portrayed by some in the media and the political arena as something other than the successful negotiation and peaceful resolution of an intense and possibly volatile situation," he said.

Meanwhile, Premier Dalton McGuinty has expressed "full confidence" in the commissioner, saying Fantino was fair during the incident and showed "tremendous discipline."

But Brant and his lawyer Peter Rosenthal were joined Tuesday by Ontario NDP justice critic Peter Kormos in calling for Fantino's resignation or dismissal.

"Premier McGuinty had better act quickly before we have Chief Fantino's attitudes reflected in death or other kinds of violence," said Rosenthal.

Use of emergency wiretap provision questioned

OPP Commissioner Julian Fantino said he acted in the public interest when he tried to convince Mohawk protest leader Shawn Brant to remove blockades during last summer's aboriginal day of action. (Nathan Denette/Canadian Press)Police have said the phone recordings were legal, citing a little-known emergency provision in the Criminal Code of "interception in exceptional circumstances."

But Rosenthal said the use of wiretapping on Brant's brother was "outrageous."

"He is well known in the community as a totally upstanding lawyer who does not get involved in any activity that even borders on the illegal," he said.

Another man whose phone was tapped, Mario Baptiste, told CBC News he met Shawn Brant behind the lines at the Oka blockade in Quebec in 1990 but was not involved in last summer's protest.

The NDP's Kormos said it is hard to believe that police didn't have time to seek judicial approval when there were warnings about the protests several days in advance.

"Judges are available 24 hours a day, seven days a week," Kormos told CBC News on Tuesday. "I think it's pretty outrageous and pretty frightening that the OPP are using these extraordinary wiretaps when they knew this action was going to be taking place."

Rosenthal also accused Fantino of threatening Gregory Brant with charges of aiding and abetting. In court, Fantino acknowledged that he called Gregory Brant, imploring him to try to intervene to get his brother to take down the blockades.

The justice critic said it was "extraordinary" that the Crown attorney was arguing in the case for a publication ban and not the defendant, which Kormos said showed the attorney general "clearly did not want this to become public information."

"The attorney general went to lengths to make sure the press, the media, the public wouldn't have access to this information, either the information about the wiretaps without judicial authorization or the context of the conversations, this very pugilistic bombast coming from Julian Fantino, that was escalating the conflict, not diffusing it," he said.

'I don't believe I am above the law'

The Mohawk protest leader said the OPP has only acknowledged wiretaps on the four numbers, but the total number of those whose lines were intercepted as a result of the investigation into the protests "could be fifty, could be five hundred," but remains unknown.

"Someone needs to be accountable, like I will be accountable," Brant said. "I'm going to take responsibility for what happened that day, and I'm going to go to jail for it and I have no problems doing that.

"I don't believe I am above the law. I believe I am going to be accountable to it."

Rosenthal said that under the emergency provision, police are not required to show evidence to justify the wiretaps, but need only make a request to the phone companies. Those whose calls are monitored never are informed afterward, he noted.

"They just say, 'Do it.' Nobody looks at it," he said. "There's never any scrutiny of it … Who tests that, ever? We're going to test that with this case."

During his testimony last year at Brant's pre-trial hearing, Fantino said he was aware the conversations with Brant were being recorded, but said he had no role in the decision to wiretap the calls.

Det.-Const. Douglas Weiss, the lead investigator in the case against Brant, also couldn't say who in the OPP authorized the wiretaps. He also testified at Brant's pre-trial hearing that he has to this date never heard them and never asked for them to be included as evidence.

The OPP only decided that they would disclose the existence of the wiretaps a week before the pre-trial hearing began, Weiss told the court.

"They were thinking of not even telling us," Rosenthal said.

Brant's trial is expected to begin in January in Napanee, Ont.

 

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