The interception of private communications, or wiretaps, are becoming increasingly common in the context of white collar crime investigations. For instance, in the United States wiretaps have been used in prosecuting insider trading cases and in Canada, have now been used in the context of prosecutions under the Corruption of Foreign Public Officials Act. What was once a tool used primarily for organized crime cases, has evolved into the investigation of white collar crime cases.
Joven Narwal, a professor of white collar crime at UBC Law and criminal defence attorney based out of Downtown Vancouver, says that the use of intercepted communications “appears to be a natural evolution as resources are increasingly given to the prosecution of commercial crime and white collar cases”. Narwal added that he is aware and has seen in his practice, the use of other sophisticated investigative techniques such as covert surveillance and undercover operatives in white collar cases, another tool that was once thought to be reserved for serious criminal organization cases.
Narwal warns however that the use of investigative techniques that were once restricted to organized crime cannot be applied indiscriminately in the white collar context, cautioning that the requirement of investigative necessity, which is a pre-condition for the obtaining of wiretaps, would require a more “nuanced analysis” in white collar cases. He explained that because wiretaps are the most invasive of investigative techniques the law requires that stringent pre-conditions be met before being issued.
“The general rule is that it is illegal for anyone to intercept private communications of a third-party, although Part VI of the Criminal Code provides an exception where the state has obtained a prior judicial authorization. To obtain an authorization, investigators must provide information under oath and the issuing justice must be satisfied that there are reasonable probable grounds to believe that the interception will provide evidence of the offence under investigation and that there is no other means of investigation available, in other words a requirement of investigative necessity”, says Narwal.
Narwal further explained that “investigative necessity does not mean that it must be the last resort. Nor does it mean that the state can rely on a wiretap as a matter of convenience. The test simply is whether, practically speaking, there are no other reasonable alternative methods in the circumstances to conduct that particular investigation”.
Having defended those accused of serious criminal organization and drug trafficking offences involving wiretaps, he says that in the context of those types of investigations, establishing investigative necessity “is not particularly onerous because there is a general recognition that some alleged criminal organizations are committed to secrecy and cannot be penetrated without electronic surveillance”. Not so with white collar cases, says Narwal. “In white collar cases, the type of conclusory statements that we often see in criminal organization cases cannot be sufficient” and points to a recent case in which foreign corruption charges were thrown out, in part, because investigative necessity was not met. Narwal says that the judgement “demonstrated a healthy application of fundamental principles of wiretap to a new investigative context” and remains optimistic that the “law will evolve and be applied in manner that is consistent with the fundamental constitutional protections against unreasonable intrusion by the state that are enshrined in the Charter”.