Shannon Kari, National Post Published:
The emergency wiretap power used by the Ontario Provincial Police last summer during a native blockade has recently been found by judges in
The OPP utilized special powers under the Criminal Code in June 2007 to wiretap Mohawk activist Shawn Brant, his brother and two friends without first seeking the approval of a judge.
The phone conversations were recorded during an aboriginal day of action that resulted in the blockade of an
Mr. Brant is facing numerous criminal charges, including mischief, as a result of the blockade.
The day of the blockade OPP Commissioner Julian Fantino told Mr. Brant if it did not end he would "suffer grave consequences" and his "whole world would come crashing down," according to court documents made public last Friday.
The use of the emergency power by the OPP is likely to be challenged by the defence when Mr. Brant goes on trial in January.
The powers were enacted by Parliament in 1994. At the time, then-federal justice minister Pierre Blais stated that the emergency wiretap provisions were to help police in "unusual circumstances" such as a hostage-taking or hijacking incident.
Normally, police must obtain the consent of a judge before authorities can institute a wiretap on an individual's private communications. As well, the judge must be convinced that other investigative procedures will not be successful.
The emergency powers permit a "peace officer" to institute a wiretap if there are reasonable grounds to believe it would prevent "serious harm" and the circumstances are too urgent to ask a judge for permission.
The legislation faced a recent constitutional challenge in a kidnapping case in
B. C. Supreme Court Justice Barry Davies found the law to be unconstitutional because it was overly broad and there is no requirement to disclose the fact the power has been used.
The definition of "peace officer" and officials who may institute wiretaps includes not only police, but customs and fisheries officers and even the reeve of a small municipality.
"There is no requirement in law or policy that records are kept. We simply do not know how many times it is used," said Mr. Buck, in an interview after the B. C decision was issued.
A pre-trial ruling released this week by Ontario Superior Court Justice Michael Dambrot in a murder prosecution (the specific evidence in the upcoming case is covered by a publication ban) also found the law violates a section of the Charter.
Judge Dambrot did not strike down the law. He ruled that it is acceptable as long as only police use the wiretap power and under certain conditions.
The emergency power must be used "only in circumstances where there is a likelihood that an unlawful act will be committed and a likelihood that an unlawful act will cause serious harm to a person or to property," he wrote.