WIRETAP CHALLENGE DEFENCE LAWYER ONTARIO
Wiretap Lawyer Ottawa • Wiretap Lawyer Toronto
What are Wiretaps
Also known as Part V authorizations (part 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.
Why Challenge Wiretaps
Often the only tangible evidence of the existence of a conspiracy is wiretap information. Sometimes the only other evidence of a conspiracy might be through on 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.