Wiretaps Are Serious Law-Enforcement Tools and Are Not Handed Out Easily

The process through which judges in Canada grant intercept warrants is a long one and involves several steps, writes Phil Gurski. Patrick Hertzog/AFP via Getty Images

In an era where certain segments of the population have settled on the phrase “systemic racism” to describe all kinds of individuals, organizations, and even entire countries (some have called Canada itself systemically racist), it is hard to get any neutral, fact-based words in edgewise. That racism is an unfortunate part of our species, inherent in many people from many backgrounds (including different “racial” ones), is beyond dispute.

In recent years, however, the phrase has been applied to all kinds of situations where, after even a little bit of digging, it is not at all clear that it is appropriate. Take the ongoing lawsuit by five Ottawa Police Service (OPS) officers, all of the same ethnicity, who claim that the force took out wiretaps (i.e., intercepted their communications) out of sheer “systemic racism.” The case is still being argued and both sides will have their day in court.

What the public does not realize, perhaps, is the process through which intercept warrants are granted to law enforcement agencies. I have no direct experience in this matter, as I never worked for a law enforcement organization (save for a brief stint as a terrorism consultant for the OPP’s Provincial Anti-Terrorism Section in 2015). I did work for CSIS, however, which has a similar tool called a Section 21 warrant (in law enforcement this instrument is labelled a Part VI warrant). In speaking with former CSIS and RCMP colleagues over the years, I have learned a lot about the procedure required to apply for and receive authority for intercepting a private citizen’s communications.

In a nutshell, it isn’t easy by any means. Judges are not ones to agree to warrants as if they were handing out candy at Halloween. The process is a long one and involves several steps which are, if I understand correctly:

• A need for an existing investigation to have progressed to the point where spies/cops believe they need a warrant to fully understand and monitor a threat to public safety/national security. Warrants, at least at CSIS, were the LAST, not the FIRST, tool used in such investigations;
• Reasonable grounds to suspect or believe this invasion of privacy is necessary to protect the public;
• The drafting of a lengthy affidavit that outlines all the facts to date and the gaps which the agency is certain may be filled by intercepted data;
• A long toing and froing with Crown prosecutors and the originating agency to ensure that all the T’s are crossed and I’s dotted (this often takes months);
• Presentation to a judge whose default position is that this extraordinary measure should be granted only in the direst circumstances. My sources tell me that few warrants are agreed to at first blush, and affiants often have to rewrite their affidavits several times before a judge will sign off on them;
• Wiretap warrants can be challenged in what is known as a Garofilo hearing, and if enough doubt on the content of the application is cast, the warrant is not granted.  I’d imagine “we don’t like Somalis” would not pass this stage.

In other words, the allegations that the OPS collected the communications of five of its officers because of “systemic racism” is not consistent with the warrant application process in Canada. I have no idea upon which grounds these warrants were allowed, but I am pretty sure no judge would agree to give one without the highest level of evidence and proof of need.

Is there racism in the OPS? Very likely, as police officers are human and every nook and cranny of modern society harbours those with racist views. Those who serve and protect are not immune from this failing. Is the OPS systemically racist? Probably not: the term has been overused so much of late as to be meaningless.

I do not know how much the public will learn about why these wiretaps were sanctioned as the information is most assuredly very sensitive in nature (as an old intelligence professional, there is nothing more sacrosanct than the protection of sources and methods). What I hope to see in this process is a statement from the judge who signed off on the request that the officers did indeed have “reasonable grounds to believe” that the individuals in question were involved in activities injurious to the public good, thus requiring the extraordinary power of intercept.

We are not Russia or China or Iran, where these legal hurdles are ignored. We live in a democracy where the rule of law applies, and that includes the police. They have to do their due diligence in the carrying out of their duties, even if we do give them special powers (carry a gun, make arrests, etc.). This due diligence applies to wiretaps. Maybe we should give them some credence when they use this tool, and not assume from the start that there are nefarious reasons, i.e., systemic racism, for doing so.