Bugs and Betrayers
- December 16, 2019
- Heather Ferg
Betrayal. An unsavoury, but persistent feature of human relations. Friends turn, confidants disclose, trusted allies deceive and forsake. When recruited by the police, betrayers may become informants. Their reports may be akin to schoolyard tattles or engage matters of life and death. Informants can be extraordinarily valuable to the police as they offer windows into worlds outsiders would never otherwise see. But what happens when they wear a wire? What are the limits of the state’s power to insert itself into our intimate moments and record our private utterances?
1. Bugs in the Walls – The Duarte Case
In the mid-1980s, the Ontario Provincial Police and Metropolitan Toronto Police Force ran a two-year drug investigation with the aim of acquiring large quantities of narcotics. They rented an apartment in Mississauga and Mr. John Spohn (a police informant) moved in. The apartment had audio visual equipment installed in the walls that the police could activate at any time. They did not obtain a warrant for the bugs.
Generally speaking, intercepting private communications was and remains illegal. However, the Criminal Code contains an exception for situations where one party to a conversation consented to being recorded. This was known as a “one-party consent” interception.
During the investigation, four men visited Mr. Spohn’s apartment: Mr. Sanelli, Mr. Vidotto, Mr. Fasciano and Mr. Duarte. They discussed a potential cocaine transaction with Mr. Spohn as well as an undercover police officer posing as his partner. The conversation was recorded, and the officer later reviewed the tape to make notes of what was said. Based on the evidence of the conversation, Mr. Duarte and the others were charged with conspiracy to import a narcotic.
2. The Trial
The fundamental issue in any criminal trial is whether or not the Crown can prove the offence alleged beyond a reasonable doubt. In order to secure a conviction, the Crown must tender admissible evidence sufficient to prove every element of an offence and rebut the presumption of innocence. In this case, the recording of the conversation and the officer’s recollection of what was said (as enhanced by his notes) were obviously key pieces of evidence. The question was whether or not the Crown should be permitted to tender them.
The admissibility of the intercept became the key issue at trial. As Mr. Spohn and the undercover police officer had consented to having their conversations recorded, the intercept was not prohibited by the Criminal Code. Further, the legislation did not expressly require any judicial pre-authorization (i.e. a warrant). This, however, did not end the matter.
In 1982, the Canadian Charter of Rights and Freedoms was enacted. It enshrined the right to live secure from unreasonable search and seizure by the state. The question raised by Duarte was not whether the police techniques were expressly illegal, but rather whether they were a reasonable exercise of state power and could be justified in a free and democratic society.
The defendants argued that the evidence of the conversation was obtained as a result of an unreasonable search and should be excluded. Their position was that the one-party consent exception in the Criminal Code was unconstitutional because it sanctioned unreasonable searches. The trial judge agreed. While he did not doubt the sincerity of the police in their investigative efforts, the trouble was “they alone” decided who to surveil and for how long. Once the police activated the equipment, “the camera rolled and George Orwell’s ‘Big Brother’ was in operation” (para 8). The problem was not the use of the technique itself; it was that the state was free to record the private conversations of whomever they pleased for months on end with no checks or oversights. This was found unacceptable in a free and democratic society. The trial judge ruled that the provision of the Criminal Code that authorized the interception violated section 8 of the Charter and the recording was excluded from evidence. Mr. Duarte and the others were acquitted. The Crown appealed.
3. The Appeal
In the fall of 1987, the case (indexed as R v Sanelli, Duarte and Fasciano) was heard by the Ontario Court of Appeal. Writing for a 3-member panel, Mr. Justice Cory (as he then was) took a much different view of the matter than the trial judge had. After reviewing a number of American authorities, Justice Cory found that although the intercept clearly constituted a search, it was not covered by section 8 because one could not reasonably expect to maintain privacy in their words once they had been spoken.
Justice Cory reasoned that whenever one expresses themselves aloud, they run the risk that whomever they are speaking to will repeat what was said. The American authorities held that where one person consented to the interception of their communication, a recording of the same was no more than an extension of the recipient’s powers of recollection. As people are generally free to deceive one another and betray confidences as they wish, Justice Cory viewed the admission of surreptitious electronic recordings as “a reasonable, logical and sequential step in trial proceedings.” He did not believe the ruling would negatively impact the freedom of exchange of ideas or undermine the tenants of a free and democratic society. In his view, only people talking about illegal activity would be concerned with the possibility of conversations being recorded. The acquittals were set aside. Mr. Duarte appealed.
4. The Supreme Court of Canada
The case was decided in October of 1989 by a 7-member panel of the Supreme Court of Canada. Mr. Justice La Forest penned the majority decision on behalf of himself and five other members of the court.
Justice La Forest reviewed the reasons of the Ontario Court of Appeal and found that Justice Cory’s analysis had missed the point. The true issue in the case was not whether someone who was unfortunate enough to incriminate themselves in the presence of a hidden microphone should be able to use the Charter to keep their misdeeds out of evidence. The issue was whether or not all Canadians citizens should be made to bear the perpetual risk of being subjected to unlimited electronic surveillance at the sole discretion of the state (p 42).
Having re-framed the issue in this fashion, Justice La Forest explained that the rationale for regulating the power of the state to eavesdrop on citizens had nothing to do with protecting people from the threat that their interlocutor would betray them. Rather, such regulation protected the citizenry from “the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.” If this were allowed, “there would be no meaningful residuum to our right to live our lives free from surveillance.” In Justice La Forest’s view, a “society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning” (p 44).
With respect to the argument that we always run the risk that our words will be repeated when we utter our thoughts aloud, Justice La Forest concluded that the risks inherent in surreptitious electronic recording “are of a different order of magnitude.” He explained, “The law recognizes that we inherently have to bear the risk of the ‘tattletale’ but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.” While he expressly held that “the Charter is not meant to protect us against a poor choice of friends,” La Forest J. was not prepared to give blanket approval to the arbitrary exercise of state power based “on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences.”
5. Duarte’s Legacy
In terms of its practical application, Duarte stands for a relatively modest proposition: state agents need to do more than recruit a willing betrayer if they want to plant bugs in our walls. At the time Duarte was decided, the use of electronic surveillance was widespread in Canada. When compared proportionally, Canadian law enforcement was requesting twenty times more authorizations for surreptitious electronic surveillance relative to their American counterparts (pp 38-9).
Today, one party consent authorizations are still used regularly but as a result of the decision in Duarte, they are implemented with judicial oversight. While there are exceptions for emergencies (such as preventing bodily harm), section 184.2 of the Criminal Code now contains basic requirements that must be met before a one-party authorization will issue. For example, the police must show there are reasonable grounds to believe an offence has occurred and that information concerning the offence will be obtained through the interception. The intercept may be for a maximum of 60 days (after which it may be renewed) and the judge granting the order may include terms or conditions that they consider advisable in the public interest. The statutory conditions are not onerous, but rather are designed to ensure such an invasive investigatory technique is not abused.
On its face, Mr. Duarte’s case was unremarkable. It was a 2-year police investigation that appears to have resulted in a dry conspiracy based on a single conversation. The reported judgments contain minimal facts and no information about Mario Duarte or his unlucky co-conspirators. As is the case with many criminal matters, Mr. Duarte’s bad day came to be about deeply important questions: do Canadians want to live in a world where the state can bug our walls whenever they please? Is it enough that someone we trust has decided or been induced to betray us? Do we really think unlimited electronic surveillance is consistent with a free and democratic society?
Duarte was an important case that defined the contours of the law in this area and its review reminds us that while the criminal law must of course deal with allegations of crime on a case-by-case basis, it also serves a broader public purpose. It is the arena in which we define the precise limits of how the state is entitled to encroach upon the private affairs of the citizenry.
6. Next Up
While Duarte placed limits on the circumstances under which the state can wire up our betrayers, it does little to protect us from deception. As I will discuss in my next post, absent an abuse of process, the authorities remain free to trick, mislead and deceive us to their investigative hearts’ content.