POLICE USE OF PHONE RECORDS 'UNCONSTITUTIONAL'

A Judge Rules Against One Of The First Steps Usually Taken In A Police
Investigation

PRINCE RUPERT - Police across the country may have to change how they
monitor suspects after a judge concluded a section of the Criminal
Code allowing investigators to track phone numbers is
unconstitutional.

Justice Douglas Halfyard ruled the section of the code that lets
police apply for a warrant to record all the phone numbers made to and
from a suspect's home phone is too great an infringement on a person's
protection against unreasonable search and seizure.

Section 492.2 (1) of the code allows a police officer to obtain the
warrant based on a reasonable suspicion of an offence.

Other forms of searches require the reasonable belief a crime is
being, or will be, committed.

"In terms of the effect it has, it is the difference between zero and
a 12-storey building," said Darrell O'Byrne, the defence lawyer who
challenged the provision.

The ruling is significant because the so-called dial number recorder
is the first step police use to monitor a suspect's phone.

Based on the information they get from the phone number records,
investigators are then able to apply for a wiretap, a far more
intrusive form of monitoring, O'Byrne explained.

In his ruling, issued late last month, Halfyard said people have a
reasonable expectation that the people they talk to on their home
phones qualifies as private information.

"In my opinion, this is information of a personal and confidential
nature and a person's expectation of privacy is protected by Section 8
of the charter against unreasonable searches," Halfyard writes.

He goes on to reject the Crown's argument that because a dial number
recorder is less intrusive than most other searches, a lesser standard
is needed.

"I find it difficult to see how the apparent objective of this law
could be of sufficient importance to justify overriding the rights
protected" by the charter, Halfyard writes.

The judge tossed out the case against three Prince Rupert men and one
Vancouver man who were charged with trafficking heroin and cocaine.

He based his decision on the unconstitutionality of the dial number
recorder law as well as evidence that the RCMP acted overzealously in
their investigation.

O'Byrne said Halfyard's ruling on the Criminal Code section could set
off ripples that could be felt in other cases.

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.

When the defence lawyers started reading through some of the calls,
they found what they described as a spider web of monitored phone calls.

The wiretaps included conversations from people who had simply phoned
the telephone number in question, but not spoken to a person named in
the wiretap.

They also found people who had their phones wiretapped after calling
the people named in the warrants.

The police had even recorded conversations with O'Byrne.

One of the cell phones tapped wasn't even a target but police listened
for more than a month.

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 dial number recorders and added an additional
cell phone number to the warrant, even though it had already expired.

"It spread out like tentacles," said O'Byrne.

The Crown prosecutor in the case, Mark Krotter, could not be reached
for comment so it is unclear whether he plans to appeal the ruling.