At Friday morning’s bail hearing for Alexander “Sandro” Lisi (Rob Ford’s close friend and alleged dealer), the courtroom at Old City Hall was overflowing. Even the adjacent overflow room was overflowing, as desperate reporters huddled around a video monitor whose volume was set too low.
Around the same time, a couple blocks away, a second Ford-related court proceeding was getting under way at 361 University Avenue. When I dropped in around 3:30 that afternoon, attendance was sparse, with only a very small handful of media populating the public gallery. Days earlier, this hearing would have been a considerable attraction. Now it was the little arthouse film playing in an out-of-the-way rep cinema unless you were really up on all the festival buzz, you wouldn’t have even known it existed.
In September, media lawyers were in court to argue for the unsealing of an ITO (information used to obtain a warrant) from the Project Traveller case. A key question before the judge was whether information gleaned from wiretaps – which made up almost the whole document – could be legally released. It’s been reported that police first learned of the “crack” video from the wiretaps related to this massive gang investigation, and so these documents could very well fill in some considerable blanks in the overall story.
In Canada, it’s generally illegal to disclose the contents or specifics of any wiretap. There’s an exception, however, if the information has already come out “in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath.” Amazingly, there’s no settled answer as to whether the process of obtaining a warrant counts as a “proceeding” for this purpose.
That is to say, ITOs are public by default. But wiretaps are secret by default. So what about wiretaps that are included in ITOs?
The media lawyers (Ryder Gilliland for the Star Peter Jacobsen for the Globe, Sun, Post, CP, CBC, CTV, and Global) argue that, yes, of course it’s a judicial “proceeding” when a police officer swears an Information to Obtain before a judge. But the Crown argues that, no, it’s not a “proceeding” but merely a judicial “function.”
The lower court judge, Philip Downes, agreed with the Crown on this point and ruled that the wiretaps must remain secret. But two and a half weeks later, a Superior Court judge on the Via Rail terror case came to the opposite conclusion when considering the same issue.
The media outlets have now appealed the matter of the Traveller wiretaps to Superior Court Justice Ian Nordheimer, who heard the matter in his courtroom on Friday. (He was the judge who, on Wednesday, had facilitated the speedy release of the Lisi ITO.)
Because of the Via Rail terror decision, the chances of seeing the Traveller wiretaps are considerably better than they were in mid-September. And Nordheimer’s ruling will have implications for all ITOs that contain such information (including the Lisi one, as seen above).
“What the Crown is asking for here is that there be no oversight at all,” Jacobsen told the judge. As the Supreme Court already decided over 30 years ago, warrants must be available for public scrutiny because, he said, “accountability is an extremely important component of this [justice] system.”
If the court were to accept the Crown’s argument that releasing an ITO with a wiretap constitutes an offence, Gilliland asked, what about all those warrants with wiretaps that never get sealed in the first place? If a judge fails to place a sealing order on such a warrant, would he or she be committing an offence?
Nordheimer didn’t promise a date for his decision but said that he would try to arrive at one “as quickly as I can, due to the circumstances and what’s at stake.”
