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Justice must be seen to be done: Breach of Solicitor and Client Privilege in Wiretap Cases

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Neuberger & Partners LLP

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In the 1990s, the news media couldn’t get enough of New York mobster John Gotti and how he always seemed to “beat the rap”. As a result of his successes at trial, he was dubbed the Teflon Don and was consistently on the cover of various magazines and newspapers. Our society’s love affair with the Italian mafia has no doubt been influenced by movies like the Godfather and Goodfellas. Most recently, the news and social media in Canada has been inundated with commentary on the Police investigation dubbed “Project Sindacato.”

For those who are unfamiliar, Project Sindacato was an 18 month and $8 million joint investigation involving 8 different police services, the Canada Revenue Agency, and police investigators in Italy. The object of the project was to take down the Mob in Canada tied to the ‘Ndrangheta organized crime syndicate based in the southern region of Calabria, Italy. The ‘Ndrangheta is believed to make more than $80 billion a year from drug trafficking.

Over a year ago, the police were praising their own efforts in the largest police investigation into organized crime in Ontario’s history which resulted in the arrest of 15 people in Canada who allegedly were involved in illegal gambling operations, fraud, drug trafficking and laundering money through casinos. At a police conference on July 18, 2019, the Police announced the seizure of over $35 million worth of goods including 5 Ferraris and 18 other luxury cars worth $3.5 million, 38 Rolex watches worth $750,000, liquor worth $120,000, 27 homes worth $24 million, $1 million in cash, and other expensive items in Italy.

But on January 27, 2021, Project Sindacato fell apart when the Crown Attorney decided to stay the charges against all the accused, including the alleged boss Angelo Figliomeni. Defence lawyers raised concern with the Court and the Crown that the police and the Canada Revenue Agency had committed “significant breaches of solicitor-client privilege.”

It appears that police used wiretaps to record conversations between many accused and their counsel and then disseminated that information in disclosure that was given to all the accused. To make matters worse, the police are said to have used that privileged information to obtain various warrants and production orders. Accordingly, the defence counsel brought an application to stay the charges. After an independent investigation by the Toronto Police Service’s professional standards unit into the use of the privileged conversations, the Crown agreed with the defence.

The result of the Crown stay means that all the items seized must be returned to their owners except for the gambling machines, which were illegally possessed.

The Crown’s decision has led many people on social media and in the press to question and criticize the integrity of our legal system, the conduct of police and the actions of the Crown’s office. However, the Crown’s conduct following the independent investigation by the Toronto Police Services should be praised as a demonstration that we are a nation of laws and respect the rule of law.

In numerous decisions, the Supreme Court of Canada has indicated that solicitor-client privilege is the only true legal privilege. The purpose behind such privilege, that allows our criminal justice system to work, is the principle that all individuals are entitled to a lawyer’s advice, and to have that advice protected, because receiving legal advice can assist the administration of justice. The rule allows potential suspects to receive advice to turn themselves in to police, to remain silent during police questioning, to plead guilty if the evidence is overwhelming, to pursue a Charter challenge or to exercise their constitutional right to have the Crown prove the case against them at a trial.

Obtaining wiretaps is not an easy step for police. Section 186 of the Criminal Code permits wiretaps only after obtaining an Order from a judge, not a Justice of the Peace, and only as a last resort when other investigative procedures have failed and when such an Order would still be in the interests of the administration of justice. Any police officer would tell you that obtaining a wiretap order is harder than obtaining a search warrant.

The interception of a private communication by any third-party individual can also be a criminal offence without permission from one of the parties. Obviously, the rationale behind such stringent conditions for obtaining an Order to Intercept private communications is because, in a free and democratic society, we value our privacy and our private communications.

In Project Sindacato, the police breached a fundamental principle of law; you do not record conversations with legal counsel, and you do not use those conversations to further an investigation. A free and democratic society can never condone such actions by the state. To do so would imperil the very freedoms we hold so dear.

While this $8 million police investigation may seem now like an enormous failure, it is a small price to pay to uphold the value we place on our privacy and will act as a deterrent for future illegal police action. That is not a bad deal at all.

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