Court documents filed in the Quebec Court of Appeal show government lawyers have acknowledged that the RCMP used an extraordinary communications-interception technique involving “mobile device identifier” equipment.Fernando Morales/The Globe and Mail
Six accused mobsters were acquitted of first-degree murder charges in Laval on Wednesday as they agreed to plead guilty to a lesser charge of murder conspiracy, scuttling a separate hearing that risked revealing sensitive information about police surveillance technology.
In the second case the same day in Montreal, Canada's national police force learned there would be no binding Quebec Court of Appeal hearing related to "mobile device identifier" technology that the RCMP had used to keep tabs on the alleged Mafia members.
These two decisions on the same landmark police-surveillance case came Wednesday morning after five years of being stuck in neutral as lawyers debated disclosure issues.
The outcome benefited both prosecution and defence, but it meant none of those convicted of murder conspiracy in the shooting death of a man in the streets of Montreal five years ago are still facing actual murder charges.
"This is a matter of prosecutorial discretion and I will not comment further," Quebec prosecutor Robert Rouleau said, after The Globe asked him why the Crown did not pursue the first-degree murder charges.
The case appears to show just how far police and prosecutors will go to safeguard investigative techniques considered secret. Speaking outside the appeal court Wednesday, Mr. Rouleau pointed out that the guilty pleas effectively meant there would be no more disclosure about the police devices.
"Since the case becomes moot, there's no reason to pursue a production order if there is no disclosure to be made."
The Globe first reported on filings related to the case earlier this month, revealing that Crown prosecutors had taken to publicly calling the RCMP device a "mobile device identifier" in an apparent bid to escape some of the criticisms surrounding devices more commonly known as "IMSI-catchers."
It turns out that MDI is simply an RCMP term. "The MDI is a device that may be described as and is commonly referred to as an 'IMSI catcher,'" reads one Crown exhibit in the case, viewed by The Globe and Mail on Wednesday.
The roots of the case trace back to Nov. 24, 2011, when a New Yorker named Salvatore (Sal the Ironworker) Montagna was shot dead on the outskirts of Montreal. Fearing more bloodletting was imminent, an RCMP-led team divulged its organized-crime surveillance operation to local police so they could make arrests in that gangland slaying.
For five years, six suspects faced first-degree murder charges – a conviction would mean 25 years in prison with no chance of parole. On Wednesday, the same six pleaded guilty to the lesser charge of conspiracy to commit murder. Sentencing hasn't been settled yet, but it likely means that – at the most – they will get a few years on top of the time they've spent in jail awaiting trial.
(A seventh man also pleaded guilty Wednesday to being an accessory after the fact of a murder.)
The case amounts to the first acknowledged used by Canadian police of IMSI catchers.
The portable devices, packed by police surveillance teams, can impersonate a cellphone tower, capturing the digital signatures of all the phones within a given radius (IMSI stands for "international mobile subscriber identity"). From there, police can try to identify suspects' phones by a process of elimination and try to get wiretaps on those specific phones.
In pretrial motions police argued all this was a privileged investigative technique, while defence lawyers argued they were entitled to detailed information about the device. Toronto-based defence lawyers Frank Addario and Michael Lacy raised a litany of detailed questions – such as asking for the IMSI catcher's make and model, its range and the reliability of its evidence. A national-security specialist, Toronto lawyer Anil Kapoor, was brought in as a friend of the court to help settle some of the questions.
While prosecutors argued the defence was on a "fishing trip" that would essentially hand the police playbook to alleged mobsters, Quebec Superior Court Judge Michael Stober sided with the defence last December. "The Court concludes that the accused have a legitimate interest in receiving disclosure of information that goes to the heart of this prosecution," he ruled.
The Crown immediately appealed – setting the stage for Wednesday's appeal court hearing. Had it happened, it would have had the effect of creating a binding ruling about how police are to use and disclose such devices in Quebec.
Instead, Wednesday morning's hearing in Montreal lasted only long enough for the judges to learn that the scheduled hearing was no longer necessary, due to the guilty pleas that had just been uttered in Laval. The effect is that Justice Stober ruling is an outlier's opinion from the lone judge in Canada who got a chance to explore the legal questions raised by RCMP IMSI catchers.
"It's not going to bind any other courts," said Mr. Kapoor, who had been on hand to Montreal to make arguments at the appellate court.
Colin Freeze