HTTP/1.0 200 OK Content-Type: text/html Surveillance Method Ruled Unconstitutional 
Pubdate: Thu, 12 Feb 2004
Source: Prince Rupert Daily News (CN BC)
Copyright: 2004 Sterling Newspapers Ltd.
Contact:  http://www.canada.com/princerupert/
Details: http://www.mapinc.org/media/654
Author: Leanne Ritchie
Bookmark: http://www.mapinc.org/topics/dismissed+charges

SURVEILLANCE METHOD RULED UNCONSTITUTIONAL

Police Across The Country May Have To Change How They Monitor Suspects
After A Landmark Ruling In Prince Rupert.

In a decision that struck down a section of the Criminal Code of
Canada, the Honorable Justice Douglas Halfyard dismissed drug
trafficking charges against Thanh Van Nguyen, Loi Van Nguyen and My
Phuong Cao of Prince Rupert as well as Chung Sze Trieu of Vancouver.

In the conclusion of a five-and-a-half week trial, Halfyard ruled none
of the evidence presented by the prosecution was admissible as the
RCMP had infringed on the defendants' rights against unreasonable
search and seizure. Justice Halfyard ruled the RCMP had overextended
the authority given by the courts to monitor telephone activity and
wiretap phone calls.

"They acted outside the authorization they sought," said Darrell
O'Byrne, co-consul for the defence. "It just snowballed."

The defendants' legal team, consisting of Martin Griffith-Zahner,
Suzette Narbonne and O'Byrne, said while the prosecution brought
forward 72 phone calls they deemed relevant to the case, the RCMP
recorded about 16,000 phone calls over a five-month period. The
wiretaps, from four warrants, worked out to 11 large boxes full of
transcripts.

"This is not walking on a technicality," said Martin Griffith-Zahner.

When Narbonne started reading through some of the calls, she found
what the team describes as a "spider-web" of monitored phone calls.
These wiretaps included conversations from people who had simply
phoned the telephone number in question, but not spoken to a person
named in the wiretap. She also found people who had their phones
wiretapped after calling the people named in the warrants. There were
even defense counsel conversations that were recorded.

"It spread out like tentacles," said O'Byrne. "One of the cell phones
tapped wasn't even a target but they listened for more than a month."

The defendants in the trial were all charged with conspiracy to
traffic heroine and cocaine in Rupert and Vancouver.

The RCMP began collecting evidence by seeking a warrant for a Dial
Number Recorder (DNR).

A DNR is used to record incoming and outgoing phone numbers from a
land-based telephone.

Justice Halfyard ruled the section of the Canadian Criminal Code,
which allows for DNRs to be placed on a phone, violates section eight
of the Canadian Charter of Rights and Freedoms.

This section ensures "everyone has the right to be secure against
unreasonable search and seizure."

Previously, O'Byrne said police only needed "reasonable suspicion" to
obtain a warrant for a DNR. Other forms of searches require the
"reasonable belief" a crime is being or will be committed.

"Mere suspicion doesn't pass the test of the charter," said O'Byrne on
Halfyard's decision.

It is unknown at this time whether or not Crown prosecutor Mark
Krotter plans to appeal the judge's ruling.

The judge also ruled the RCMP also overextended the authorization of
the DNR warrant when they applied it to two cell phones. First, the
defendant had a reasonable expectation local telephone provider
CityTel would not hand out his cell phone number without his consent.
Cellphone numbers are unlisted in the phone book.

Secondly, during the course of the investigation, the RCMP discovered
DNRs cannot be used on cell phones. As a result, police approached
CityTel and acquired, without a proper warrant, the user's records of
outgoing calls.

The Judge ruled the RCMP should have sought another warrant to obtain
the records.

"From the evidence ... it is apparent that in the spring of 2000,
CityTel would give information to the RCMP about its subscribers upon
request and without any court order or consent of the subscriber. That
policy has changed, and such information is no longer given to the
police upon request," wrote Justice Halfyard.

The judge also ruled the RCMP further extended the authorization of
the warrant when they sought the phone records of the people who had
been recorded on the DNRs and added an additional cell phone number to
the warrant, even though it had already expired.

Also, the judge ruled evidence used to gain search warrants for
photographs were based on tips that could not be substantiated.

He likewise ruled there were no reasonable and probable grounds for
believing that a set of seized bank records would provide evidence of
drug trafficking, describing it as engaging in "speculation."

The records were seized after a plain clothes RCMP officer "happened"
to be at a bank when he witnessed a $3,000 cash deposit by an
acquaintance of one of the defendants.

The judge ruled there was an absence of good faith on the part of the
investigators.
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