FUTURE OF CONTROVERSIAL POLICE WIRETAPS RESTS ON COURT RULING

A case against a suspected cocaine dealer was thrown out, then reinstated,
due to differing legal views on the 'investigative necessity' of listening
in to phone lines. This month, the Supreme Court will make a final decision

OTTAWA - Canada's wiretapping laws, caught mid-evolution from being among
the most lax in the world in the 1970s to being far stricter after the
introduction of the Charter of Rights and Freedoms, will face scrutiny in
the Supreme Court this month in a case that will determine the fate of a
group of accused cocaine dealers from British Columbia.

Police say the case of Neil Grandmaison and his alleged partners shows just
how firmly courts have tied the hands of law enforcement. But defence
lawyers say there can be no turning back to a time when RCMP could listen in
on virtually any citizen, just about any time they wanted.

The Supreme Court will decide whether police must prove to a judge that a
wiretap is an "investigative necessity" of last resort -- or whether they
can merely assert that it is the most efficient tool.

"What the court says about the 'investigative necessity' requirement will
dramatically impact on the utilization of electronic surveillance, the most
intrusive investigative technique available to the state," says Alan Young,
a professor at Osgoode Hall Law School.

"Courts have not always taken investigative necessity very seriously. They
have been satisfied, more often than not, by the police simply stating that
conventional investigative techniques won't work."

The Victoria City Police Department received an anonymous letter on April
21, 1995, which was later used at trial. It read: "I hope you keep tab on
Neil Grandmaison ... He has not worked for several years; he is a
pipefitter, he lives in a penthouse suite in Songhees, and drives a very
expensive car. He says the money can be laundered in real estate, so very
difficult to catch him. He does a lot of business and has lots of money. I
hope this tip will lead to his arrest."

Despite this, and a separate tip from the anonymous Crimestoppers line,
ongoing leaks from drug-world informants, numerous stake-outs in front of
his home, and months of tailing his Nissan 300ZX as he drove around on
suspected drug runs, the Mounties still could not apprehend Joseph Armand
Neil Grandmaison, or "Wax" as he was known on the streets.

A suspected cocaine dealer, Wax headed a group that was thought to be
funnelling large quantities of the drug into the streets and schools of
Vancouver and Victoria, probably only competing for clients with a Hells
Angels biker gang, according to evidence given in court during the trial of
the accused.

Codenamed "Project Egbert," the investigation involved 20 to 40 B.C. police
and RCMP officers over 10 months. Time-consuming and expensive, Project
Egbert was also dangerous. Wax's suppliers were thought to be among the
shadiest operatives in Canada, the trial judge heard. His main sources, the
trial was told, were thought to be a gang of Russians.

According to evidence heard at the original trial, starting in January,
1995, police tailed Mr. Grandmaison and his associates, including a woman
named Angela Araujo, who was thought to use teenagers to package and
distribute cocaine.

Police believed they were investigating an organization of drug traffickers.
To prove a conspiracy, police would have to prove an agreement among the
suspects to deal in drugs. For months, the investigation progressed slowly,
restricted by the police desire to protect the identities and lives of their
informants. The suspected dealers knew they were being watched, and pulled
action-movie techniques to lose the undercover police, including driving the
wrong way down one-way streets while being followed.

Frustrated, police eventually applied for and were granted permission to
intercept the home telephone, pay phone, cellphone and pager communications
of the suspects. The conversations provided enough evidence for police to
obtain 14 search warrants. In a series of raids on Oct. 25, 1995, police
seized 4.3 pounds of cocaine, cocaine presses, score sheets, restricted and
prohibited weapons and large amounts of cash. Wax and his network were
brought to court on cocaine charges and faced the possibility, if convicted,
of decades in prison.

Mr. Grandmaison, 27, and Ms. Araujo, 28, were charged with cocaine offences,
along with Victor Camara, 23, Mikel Oulton, 20, and nineteen-year-old
Christina Khoury.

Mr. Grandmaison and Kevin Shawn Lathangue, a 28-year-old Victoria prison
guard, were also charged with conspiracy to traffic in anabolic steroids.
Vancouver police arrested Robert Jenkins, 37, and Jolene Dawn Irons, 19, on
cocaine-related charges. Others were arrested on gun-related charges.

Three years and two trials later Mr. Grandmaison, a body-builder who played
in a Kiss cover band, and his coterie remain free.

On Halloween, 1996, a B.C. trial judge threw out the case of conspiracy to
traffic cocaine brought against Mr. Grandmaison and nine co-defendants.
Police were sloppy in their request for a wiretap, said the judge. They got
their informants confused and carelessly referred to informant "E" as
informant "C" in their affidavit. When they realized their mistake, they
arrogantly neglected to inform the court, he said. The cavalier attitude of
the police destroyed their credibility and "tainted" the entire wiretap
application, he wrote.

Worse still, police resorted to a wiretap too quickly, the judge said.
Police did not show that the wiretap was their "last resort," as required
under Canada's strict wire-tap laws.

"It is clear the police had permeated the target organization with a source
who was providing apparently concrete information which could have been
acted upon without the use of a wiretap authorization," wrote the judge.
Police were forced to withdraw their evidence, and all 10 suspects were
acquitted.

On June 30, 1998, however, the B.C. Court of Appeal rebuked the trial judge
for "flawed" reasoning. The mistake in the affidavit was an unintentional
typographical error, easily imaginable in a 140-page document that referred
to 10 separate informants labelled "A" through "J," the court said. More
importantly, the three-judge Appeal Court unanimously agreed that the police
did not need to show that the wiretap was their last resort. They needed
only to show that electronic surveillance was the "most efficacious" way to
investigate.

The Appeal Court ordered a new trial and allowed the wiretap evidence to be
brought foward.

Before a new trial could be held, however, defence lawyers asked the Supreme
Court of Canada to clarify the Criminal Code's test for allowing wiretap
evidence. In April, the court agreed to hear the case.

The RCMP now says that if the Supreme Court agrees with the strict
interpretation of the wiretap law and throws out the wiretap evidence
forever, not only will Wax's alleged ring go free, but the precedent will
henceforth tie the hands of police in the face of organized crime.

But lawyers for the suspects argue that if such questionable wiretap
evidence is allowed, Canada risks becoming "the most wiretapped nation on
Earth."

The case has caught Canada's wiretap pendulum in mid-swing.

Less than twenty years ago, Canada had some of the world's most lax
wiretapping rules. In 1981, Paul Copeland, a Toronto defence lawyer,
calculated that Canadians were 19.3 times more likely than Americans to be
the subjects of electronic surveillance by police. The Law Union of Ontario
told a Senate Committee that not only criminals but even lawyers and judges
"now routinely assume that they are the subject of electronic surveillance."

"The method of wiretapping used to be called the clipinsky," says Lee
Lamoth, editor of the Report on Crime and Profiteering. "Police men would
just climb up, clip it on to the wires of the phone and listen."

With the introduction of the Charter of Rights and Freedoms the following
year, however, the wiretapping was made much more difficult.

Before the Charter, police were able to apply to a judge for a wiretap
without having to disclose their evidence to the defence. Though a wiretap
could be thrown out of court, this rarely happened because the requests went
unseen and unscrutinized by defence lawyers.

Since the Charter, however, wiretap requests have been unsealed. In the
1980s, Canadian police found them very difficult to use.

"We avoided them like the plague," says Bruce Bowie, a former high-level
RCMP investigator who is now a private investigator. "Wiretaps became a
waste of time. It was difficult to project whether the evidence would be
thrown out of court."

The new disclosure rules also meant a wiretap request could risk betraying
the identity of informants.

"You put everything you know into a wiretap affidavit," says Mr. Bowie. "I
remember a number of occasions when we had to walk away from a crime being
committed ... Because of disclosure rules, the informant or their family
would surely be killed."

Since the mid-1990s, however, courts have ruled that wiretaps can be used.

Section 186 of the Criminal Code of Canada states that a wiretap
authorization may be given if police can persuade a judge that other
investigative procedures have been tried and have failed, other
investigative procedures are unlikely to succeed, or the urgency of the
matter is such that it would be impractical to carry out the investigation
of the offence using only other investigative procedures.

"Some courts have interpreted the 'or' more liberally than others," Mr.
Bowie says.

The Grandmaison case, scheduled to be heard on April 11 and 12, will be the
first Supreme Court test of the extent of this "investigative necessity."

It could determine just how desperate police have to be before they can use
a wiretap, and how scrupulous.

"It is critical that this issue be argued in this Court before the citizens
of this country become the targets of the most widespread, judicially
condoned eavesdropping in the Western world, all in the name of efficiency,"
stated Robert Klaus, lawyer for Mr. Grandmaison, in his appeal application.

"It should not be forgotten that although torture may be efficient in the
context of a police investigation, it will not be condoned."

But if the rules are tightened any more, police say law enforcement will
stand no chance against organized crime.

"That would mean we would have to be errorless right down to the periods and
the word processing errors. Any letter in a two-or three-hundred-page
affidavit would have to be precise or your case gets thrown out," says one
police officer. "Even Rhodes Scholars can't do that."