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| John L. Hill |
For example, the U.S. Department of Homeland Security (DHS)’s Immigration and Customs Enforcement (ICE) division has used cell-site simulators (also known as stingrays) to impersonate cell towers and intercept data from mobile phones in a specific area. The concern is that this process gathers data from everyone nearby, not just the intended targets, and is often carried out without notifying the courts or defendants. Without a warrant, this could breach the Fourth Amendment in the United States and be declared unconstitutional. While it’s difficult to link a direct deportation solely to stingray usage, they have been employed to locate individuals for arrest.
In some cases, ICE or the DHS may use “parallel construction,” a technique where illegally or dubiously obtained information, such as surveillance, is secretly used to start an investigation. Agents create an alternative, seemingly lawful trail to hide the real source. This means illegal wiretap or surveillance data might have been used but kept hidden from immigration court proceedings.
In Canada, a deportation hearing involving controversial evidence is underway. A man police describe as Toronto’s top Mafia
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CBC reported on the surveillance of two Italians who arrived at Toronto’s Pearson Airport in 2018. Italian authorities had altered one of the men’s cellphones to enable police to listen in on private conversations between the men and DeMaria. A Crown attorney advised the police not to proceed with the surveillance operation because there were no reasonable grounds to obtain a wiretap in Canada. Jessica Zita, a partner at the Toronto law firm Lockyer Zaduk Zeeh, told CBC that the Crown attorney’s warning “very clearly states if they were to make these recordings on Canadian soil, it would be a breach of our Constitution.”
Under ss. 184-188 of the Criminal Code, law enforcement must obtain a judicial authorization (wiretap warrant) to intercept private communications. Illegally obtained wiretap evidence violates s. 8 of the Charter (unreasonable search and seizure). In criminal cases, evidence obtained via an illegal wiretap may be excluded under s. 24 (2) of the Charter.
The reason for using such evidence in the immigration context is different. Immigration proceedings (e.g., inadmissibility hearings, deportation) are administrative, not criminal, in nature. The rules of evidence are more relaxed — the Canada Border Services Agency and the Immigration and Refugee Board (IRB) can admit hearsay, foreign convictions, anonymous tips and evidence gathered without a warrant, as long as it is “reliable and probative.”
However, the Charter still applies — so if evidence is obtained in a way that shocks the conscience or egregiously violates rights, it can be excluded.
Chief Commissioner Giampiero Muroni, who led Italy’s Polizia di Stato’s central anti-crime directorate from 2008 to 2019, spoke in Italian through an interpreter. He stated that the spyware was used to link DeMaria’s connections to the criminal organization. The evidence presented at DeMaria’s deportation hearing aimed to support the claim that an alleged mobster named Muià came to Canada to find out which members of 'Ndrangheta had murdered his brother so he could seek revenge. Muià needed to be entirely certain before pursuing retribution and wanted to verify his information with DeMaria and other suspected 'Ndrangheta bosses in Canada.
During her cross-examination, Zita questioned the legitimacy and accuracy of the police wiretaps and the explanations of what the men were discussing. She also suggested that the officer giving evidence misidentified the man they were talking about as DeMaria.
Whether Zita will succeed in convincing the board that the spyware tapes should be excluded remains uncertain. However, she has an important precedent on which she can rely. Counsel for the IRB argued before Justice James Russell of the Federal Court that the IRB should not be judged by the same standard of evidence as a court. The testimony of three experienced police officers was “supported by years of investigative expertise.” That case also involved a decision to deport Jimmy DeMaria (Demaria v. Canada (Minister of Citizenship and Immigration), 2019 FC 489).
Russell wrote that the IRB “significantly overstates” the value of police evidence. He acknowledged that the IRB has looser rules of evidence. Still, he warned: “This latitude in evidentiary matters, however, does not mean that the [IRB] has complete discretion over what will support inadmissibility. There must be ‘facts’ and these facts must give rise to more than a ‘mere suspicion.’”
United States President Donald Trump is campaigning to deport “criminals” and is using extrajudicial methods to do so. Hopefully, Canada will recognize there is a higher purpose that needs support — the rule of law.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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