Canada
Law enforcement
Secret police wiretaps fly under the radar
Warrantless eavesdropping prompts questions over privacy
Last Updated: Monday, June 29, 2009 | 4:06 AM ET
By Dave Seglins, CBC News
Graham McMynn, left, and his father Bob are all smiles during a press conference in Vancouver on April 13, 2006, a day after the young man was rescued from his captors. (Richard Lam/Canadian Press) Bob McMynn knows first-hand how Canada's laws allow police to eavesdrop and use emergency wiretaps without a judge's approval.
He says Section 184.4 of the Criminal Code helped to save his son Graham's life after a group of young men abducted the then 23-year-old university student at gunpoint in April 2006, in what turned out to be a kidnapping for ransom.
"[The emergency wiretap] was paramount in solving where my son was," McMynn told CBC News. "Without that and other fantastic police work, we may never have got him back."
Vancouver police had little time to ask a judge for permission, so they used the Criminal Code provisions to eavesdrop on a group of key suspects without court approval. Eight days later, police moved in to arrest the gang and free the younger McMynn.
CBC News has learned that McMynn's case is just one of at least 267 cases between 2000 and 2008 where major police forces across the country used warrantless wiretaps.
The information was obtained through freedom of information and access to information requests. Some forces — including Toronto, London and Winnipeg — released only partial information, citing secrecy provisions in the Criminal Code, and the Quebec provincial police never responded.
"There might be a lot more instances in which it is being used and that's what's troubling," says James Stribopoulos, a professor at Osgoode Hall Law School in Toronto.
"I think people would be alarmed to know, there are no checks on the exercise of that power."
'No accountability'
Typically, police apply to a judge for permission to conduct a wiretap and must notify the target once the investigation is complete. Reports are also submitted each year to Parliament on the number of judge-granted wiretaps used.
The restrictions are aimed at protecting a person's right to privacy and ensuring some oversight of police activities.
But emergency wiretaps remain highly secretive, with no requirements for police to keep records or report on their use.
Karen Bastow, a Vancouver lawyer who represented one of the accused in the 2006 McMynn abduction, says warrantless wiretaps were used appropriately in the kidnapping case, but questions other uses.
Mohawk protester Shawn Brant, shown in a 2007 photo, says police wiretaps on his communications were 'flat out illegal.' (Jonathan Hayward/Canadian Press) "The peril is the case where one doesn't ever know that one's been intercepted. A member of the public could have their phones intercepted and never know about it … unless it went to trial. There's no accountability," says Bastow.
Proper use of emergency wiretaps came into question when Ontario Provincial Police (OPP) eavesdropped on Mohawk protesters from the Tyendinaga First Nation in June of 2007 ahead of a planned highway blockade.
OPP knew about the protest for months in advance.
In the days leading up to the blockade of Highway 401 and CN Rail tracks through Eastern Ontario, OPP officers prepared paperwork to go before a judge. But on the last day, they opted for emergency wiretaps.
The OPP listened in on the phone conversations of Shawn Brant, his friends Mario Baptiste and Mario Baptiste Jr., as well as Brant's brother, who is a lawyer.
OPP Det.-Insp. Ian Grant wrote in his notes that he requested the emergency wiretap on the basis of Brant's "history of promoting violence, public statements of weapons confrontation and threats to police safety."
Brant denies any intention to harm anyone, adding that "[The wiretap] was flat out illegal. The OPP knew about this protest for weeks."
Stribopoulos says the use of wiretaps in the Brant case appears to go beyond the intended use of the emergency provision, since there was no evidence that anyone was threatened with physical harm.
"It has to be an urgent situation, so urgent that they don't have a few hours to go before a judge … someone's going to die … someone's going to be seriously injured."
Emergency wiretaps cut in B.C.
In B.C., where police are confronting a rise in drug and gang-related kidnappings, the provincial Supreme Court struck down the law as unconstitutional, forcing police to notify people who are targets of warrantless wiretaps.
The 2008 ruling found that secrecy and lack of oversight surrounding warrantless wiretaps violated Charter of Rights and Freedoms protections against unreasonable search and seizure.
RCMP Staff Sgt. Tom Caverly says his officers have been forced to adjust to the new rules, but finds the notification requirement just "makes sense."
"I mean all we're really doing is being accountable for our actions, and letting that individual know … 'Hey … by the way, we were intercepting your private communication.'"
Meanwhile, the federal justice department has proposed amending the Criminal Code to require annual reports to Parliament on how many times police use emergency wiretaps, but only when cases result in charges. Those targeted wouldn't be notified, nor would a judge be able to review the use of secret wiretaps even once an emergency is over.
Caverly defends the basic idea behind emergency wiretaps, saying they are useful when responding to crises like attempted murders and kidnappings.
"If you can listen to what's going on it becomes a lot easier to deal with a situation in a timely fashion and get the result you want … which is really to save someone's life."
Bob McMynn says that was true in his son's case.
"Be damned with the rules … the saving of a life is far more important," says McMynn. "If I live my life according to the laws, who cares if somebody listens in on my conversations?"
