Wiretap Lawyer Ottawa • Wiretap Lawyer Toronto • Internet Seizure Lawyer Ontario

What are Wiretaps?

Also known as Part V authorizations (the portion of the Criminal Code setting out required steps for court approval of their use) and electronic intercepts, wiretaps continue to be cloaked in perhaps the most mystique of any investigative technique, and can provide some of the most damning, misinterpreted, and illegally obtained evidence against accused individuals. 

Do Wiretap Limits Apply to All Internet Communication?

No. It’s an unfortunate answer, given the ubiquitousness of Internet-based communication. Wiretap laws were mostly drafted in the 1970s, when the telephone was king. They don’t apply to text messaging, instant messaging, email, or social media interactions, regardless of how private the parties intend those communications to be. However, this remains a fluid area of criminal defence litigation, as technology throughout history has always outpaced the evolution of the law, which is always playing catch up.

If you’re involved in a case where the evidence largely rests of the seizure of Internet-based communications or information - whether found on a phone, tablet, laptop, or in the cloud - it’s well worth consulting a lawyer with a background in technology cases to evaluate the lawfulness of police obtaining those communications and information.

Why Challenge Wiretaps?

Often the only tangible evidence of the existence of an alleged criminal conspiracy is wiretap information. Sometimes the only other evidence of a conspiracy might be through an informer. But the informer's evidence would at least be subject to credibility challenges at trial. Whereas wiretaps often speak for themselves. Getting them thrown out of court as illegally obtained evidence can be the key element to securing an acquittal. 

How to Challenge Wiretaps: 5 Winning Trial Strategies

Securing a wiretap authorization can be the most onerous of drafting work any police officer will ever undertake. The affidavit sworn in support of the wiretap authorization may run to hundreds of pages in length. And there are many technical hurdles to overcome in first getting the wiretap authorization, and second in repeatedly renewing it before its expiry.

Wiretaps are vulnerable to defence challenges at trial, and even if not struck down as improperly issued the conclusions to be drawn from what was recorded can also be vigorously contested.

1. Wiretap monitoring is defective

One particularly vulnerable area to challenge is how wiretaps are administered. While much work may have been put into obtaining the wiretap authorization from the court, frequently it seems less work is put into ensuring all its technical conditions of operation are complied with.

Most have conditions that avoid innocent third parties being recorded, so some require "live monitoring" where the recording is stopped if one of the named targets is not speaking. Thus the defence showing that the voices of innocent people were being recorded can be a fruitful angle of challenge.

2. Extension to wiretap not obtained in timely manner

All wiretaps are issued for a fixed time duration. But once the wiretap is up and running, there is a great temptation to let it keep running either because it is collecting what is believed to be useful information, or because it is collecting nothing and the hope is that there might be better information in the future.

While extending wiretap duration validity is possible through another court application, the police sometimes forget to apply for the extension, or sometimes apply late, resulting in unlawful collection of evidence after the expiry. 

3. Solicitor-client privilege conversations with lawyer were unlawfully recorded

Unless the police have obtained explicit permission - which would require extremely strong justification - to record conversations with a lawyer, solicitor-client conversations should not be recorded. If they have been, it could be grounds for throwing out all the evidence.

4. Insufficient voice identification

Because wiretaps usually don't involve visual identification of the speakers, the police will need a witness for trial to identify who is speaking on each relevant telephone conversation. Just because a call comes from a phone registered to a particular person doesn't mean that is the person speaking. The prosecution may lack a witness who is sufficiently familiar with particular people speaking to credibly testify about voice identification. 

5. Translation of wiretapped conversations is inadequate

Because of Canada's multicultural makeup, those heard speaking on a wiretap might often be talking in a language other than English or French. However, quality of translators vary and some foreign words will inherently have multiple meanings in English or French. Where a rare local dialect of a foreign language is being spoken, it might be extremely difficult for the police to locate any credible translator to assist in court with presentation of the evidence. 

When to Challenge Wiretaps?

While like search warrants wiretaps can be challenged prior to trial, practically that is never done because nothing "physical" is being seized through a wiretap, thus there is no property to return to an owner, and wiretaps tend to be much more complex and resource intensive to challenge because of the often weighty record that was advanced to secure their authorization. 

Sometimes a preliminary hearing will be a useful place to explore the shaky basis for the authorization of a wiretap, with the actual challenge coming later during a pre-trial motion. 

What Retain Our Firm to Defend You in a Wiretap Case?

The firm’s Managing Lawyer Gordon S. Campbell prosecuted wiretaps cases for the Federal Prosecution Service of the Department of Justice Canada. He has published three books on the law of wiretaps. He can put that experience to work for you in defending your case.