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Wiretap dance

While picking through my bag, the friendly court officer came upon my audio recorder.

“Media?” he asked.

Yes.

“What are you here for?”

“Rob Ford,” I said.

As soon as he expressed confusion, I realized I’d sort of given away the game. On Thursday, September 12, the Ontario Court of Justice at 1911 Eglinton East was the site of a hearing on an application to unseal a warrant relating to the Project Traveller gang bust. It wasn’t about Rob Ford – not in the literal sense.

But of course it was.

There is exactly one reason why any people not themselves charged in the June raids are interested in seeing the information used to obtain the warrants for the operation (the ITOs), much of it gleaned from wiretaps: the belief that somewhere, buried among thousands of pages, is some reference to the mayor.

Applying for the ITO pertaining to a particular search warrant issued on May 31 are the Toronto Star, represented by Ryder Gilliland, and the Globe, CBC, Sun Media, Postmedia, the Canadian Press, Global and CTV, jointly represented by Peter Jacobsen.

In the best-case scenario, the information would rain down like a waterfall and we’d learn the precise nature of Ford’s connection to alleged gun runners and drug smugglers and exactly what police knew about the alleged crack video. (Several outlets, citing unnamed sources, reported in mid-June that police first learned of the video from the Traveller wiretaps.)

But Canadian law, the Ontario justice system and Ford’s own astonishing streak of good luck have instead combined to produce something closer to a worst-case scenario: that this line of inquiry may soon reach a dead end.

On Monday, Justice Philip Downes agreed with the Crown’s submission that the vast majority of the information being sought (that is, the precise evidence police swore before a judge to obtain each search warrant) should remain secret [pdf]. More specifically, he ruled that to disclose the contents or existence of particular wiretaps would be a crime punishable by up to two years in jail.

This, generally speaking, is the law in Canada concerning wiretaps, but the lawyers for the applicants (unsuccessfully) argued that one of the Criminal Code’s prescribed exemptions applied: that because the wiretap info had been shared with a judge for the purpose of obtaining a warrant, it had been deployed in the course of a judicial proceeding and therefore had become public. Referring to numerous precedents, however, Downes concluded that the process of obtaining a search warrant is not a judicial proceeding but rather a component of a criminal investigation.

According to Gilliland, the judge’s decision on the wiretap issue takes about 90 per cent of this ITO out of play.

Of course, for police to carry out an operation on the scale of Project Traveller – banging down that many doors, arresting that many people, seizing that many items – they need quite a lot of warrants.

And in a landmark 1982 case, the Supreme Court of Canada ruled that the public’s right to scrutinize the operations of its justice system extends to the right to view the contents of search warrants that have already been executed – albeit subject to certain limitations.

But in practice, gaining access to these files is neither simple nor easy. In fact, it can be downright hellish.

To request to view a warrant, you have to give – at minimum – the date it was issued and the address of the property it granted police permission to search. At first, the media outlets could only nail down one warrant, so that was all they were formally seeking in court.

Certain there were more, their lawyers wrote to an associate chief justice of the Ontario Court, who told them there were four (including the one they’d already found). Then courts administration contacted them the next week to say, whoops, there were actually 15 others. And then, in court last week, Crown Attorney Jeffrey Levy presented a chart of 36 relevant search warrant packets. Each packet could contain multiple warrants and multiple ITOs Levy said there were 88 or so in total, amounting to over 2,500 pages.

All 36 have been sealed from public view. Section 487.3 of the Criminal Code lays out a handful of circumstances under which a judge may do so.

Gilliland explains in an interview that for two-thirds of the packets, the Crown is relying on the aforementioned law against the disclosure of wiretaps. For each, “we don’t know whether [that represents] a small portion or a large portion,” he says. “And for a lot of the other ones, there are confidential-informant arguments, and those are pretty rock-solid.”

Of the 2,500 pages, there may end up being very few that don’t require significant, if not total, redaction.

On top of that, those portions that are released will, at the request of the media’s lawyers, be placed under a publication ban. If not for such a prohibition, the lawyers for the accused could credibly object to even minimal disclosure, as it could affect their clients’ right to a fair trial. Having had the past week to review the material from the one ITO, defense counsel will tell the court on Friday (September 20), whether they’re okay with this. If they are, a timeline for its release will be developed.

It’ll then be up to the eight outlets to decide which of the other packages they wish to pursue. On Monday, the Crown gave the applicants an address associated with each of the packets on the chart. The news orgs now have sufficient information to file applications for the sealing orders to be terminated or, more likely, amended so as to only withhold those parts that absolutely cannot be disclosed.

Practically, though, they can’t ask for all of them at once. In court, Crown Attorney Levy stressed that it takes a very long time for his office to properly review and edit each one for release.

Given that these are supposed to be public documents by default – and that it took three months just to find out how many there are – this is a rather considerable barrier to access.

In a break at the hearing, I ask Jacobsen whether he thinks someone is stonewalling or the justice system (the police, Crown and/or courts administration) is simply overwhelmed and disorganized.

“I can’t reach a conclusion about that,” he says. “I don’t know whether they’re overwhelmed and disorganized to this extent – it would strike me as quite serious if they are – or if they’re just stonewalling. I do know that originally the Crown asked for six months to have the return of this one application. That’s what they asked for in front of the justice on July 2.

“He said, ‘No, that’s just not justified.’ So you can draw your own conclusion.”

jonathang@nowtoronto.com | @goldsbie

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