Canadian detectives cannot keep secret their advanced spying devices or their relationships with telecommunications corporations because claims of police privilege carry little or no weight in criminal courts.
So ruled Quebec Superior Court Justice Michael Stober as he ordered several modern police surveillance techniques disclosed to lawyers representing six accused mobsters in Montreal. Finding that police arguments for secrecy rely at times upon "self-serving and weak" legal logic, his decisions have laid bare RCMP tactics.
From the Stober disclosure rulings flowed the recent revelation that the Mounties use a device that mimics a cellphone tower. The fact that Canadian federal agents also have access to a version of a virtual skeleton key, one that can crack coded BlackBerry communications, has also been exposed.
Police had fought for years to protect such methods from becoming broadly known, until a cat-and-mouse criminal case pitting the RCMP against the Montreal six forced Justice Stober to consider 21st-century techniques.
A publication ban was imposed on his rulings about pretrial disclosure when they were issued last fall, but redacted versions were filed in a higher court this spring. On March 30, the Quebec Court of Appeal in Montreal was to revisit the Stober decisions. But on the morning that matter was to be heard, the Crown lawyers who appealed the rulings walked away from the underlying first-degree-murder case.
Across town in Laval, the six people arrested in 2011 were acquitted of that charge and pleaded guilty to the lesser charge of conspiracy to murder. That outcome freed the Crown of its obligation to make increasingly uncomfortable amounts of disclosure and left the appellate judges with no case to consider.
Court decision or no court decision, however, important disclosure issues remain for police, lawyers and judges across Canada.
Here's the question: If police want to borrow from the playbooks of modern spies and advance their investigations with secret surveillance techniques or the help of telecommunications corporations, can they prevent those methods from being revealed during prosecutions?
The court of Justice Stober, which has had a unique exposure to those issues, ruled that the answer is a resounding no. "The interests of the accused in having a fair trial where the accused is able to make full answer and defence outweighs the public interest in protecting police-investigative techniques," he ruled.
The case was extraordinary in several ways. The judge heard police pleas for secrecy in several closed pretrial proceedings from which the accused and their defence lawyers were barred. To balance the scales, the court took the extraordinary step of allowing Toronto lawyer Anil Kapoor, who has national-security clearance, to make arguments on the defence's behalf.
What emerged as a result of these hearings is that, while police in Canada may have plenty of protections to keep human informants anonymous, they have no analogous legal safeguards for surveillance technology or corporate relationships.
Yet federal agents remain loath to reveal their techniques because they feel they are in an arms race with savvy adversaries.
In the Montreal case, each suspect had multiple unregistered BlackBerrys, and they talked to each other through the company's proprietary encoded "PIN-to-PIN" texts. Detectives within the RCMP's technological units saw a murder conspiracy take shape in those messages, but it came into focus only through painstaking work.
First, the Mounties had to use a portable cellphone-tower simulator (often known as a "IMSI catcher") to draw data that revealed which handsets in a certain area were controlled by the suspects. Then, police served assistance orders on BlackBerry directing the Waterloo company to help facilitate interception of the suspects' messages – which were cracked with a version of the company's "global encryption key" that RCMP had somehow acquired.
In more mundane crimes, defence lawyers challenge the accuracy of police breathalyzers and radar guns. In the case at hand, lawyers Frank Addario and Mike Lacy pushed for increasing amounts of detail about police techniques. At one point, they even persuaded Justice Stober to order police to hand over their version of the BlackBerry key so that the defence lawyers for the accused could test it.
Prosecutors and police pushed back hard on that front, saying that would be like letting go of a skeleton key that could open tens of millions of houses. A BlackBerry executive swore a last-minute affidavit saying such a move could undermine customers' trust. In the end, Justice Stober withheld the key, even as he ordered other surveillance techniques disclosed.
At one point, an RCMP inspector testified that a degree of secrecy is needed because being seen to help police is "not good marketing" for tech companies. But Justice Stober characterized such arguments as "weak and self-serving." As a Canadian judge, he said, he had no legal basis to consider any "adverse impact on [Blackberry's] business interests."
The bottom line for the Crown was that Justice Stober's disclosure orders could yield "a new and thorough body of information that would educate the criminal element," or even provide it with "a user guide on how to circumvent a level of secrecy the State is entitled to protect." This, at least, is what the Crown appeal had put forward, until the surprise plea arrangement between the Crown and defence scuttled the hearing.
How the RCMP's secret surveillance tools work
RCMP documents disclosed in a recent trial acknowledge that portable surveillance devices, used to target crime suspects, directly impact "innocent third parties" within range — including people dialling 911.
The devices, known as IMSI catchers, mimic cellphone towers and are capable of extracting key identifiers such as the International Mobile Subscriber Identity (IMSI) from nearby GSM phones.
MURAT YÜKSELIR/THE GLOBE AND MAIL
1 A police team turns on its device causing radio waves to emit from an unmarked police vehicle. The machine beckons to phones suggesting it is the strongest cellphone tower in the area.
2 It’s a “hit” – the targeted person’s phone automatically redirects its signal to the police device.
3 The suspect’s phone has unique digital identifiers that are pulled into a database – as are those of phones belonging to innocent third parties. Police can later try to bug the target phone.
4 The police devices can have the side effect of temporarily blocking all new calls – and while 911 calls are supposed to override the interference, up to half the time this does not happen.