Robert Whitebean and Floyd Lahache are fighting charges of alleged fraud at the First Nations Winery. (Daniel J. Rowe, The Eastern Door)
Justice Stephane Godri must answer this question: was it necessary for the Surete du Quebec to tap First Nations Winery owner Floyd Lahache’s phone as part of a fraud investigation?
Lahache’s lawyer Roberto De Minico led the motion to have the request for a wiretap filed by SQ officer Stephane Allaire dismissed this week in a Longueuil courtroom, based on De Minico’s argument that Allaire misled the authorizing judge, who granted the request, and did not explore other investigative techniques before invading Lahache’s privacy by tapping his phone.
Unauthorized wiretaps violate the Canadian charter of rights and freedom.
Judge Godri said the crux of the question in granting a tap was “if other investigative techniques are not likely to bring results.”
Rouleau said “you have to measure the effect, the chilling effect, that that’s going to have on your investigation,” in defence of using a tap rather than a search, for example.
Most explosive of all, De Minico attacked Allaire’s wording in the application as stereotyping Kahnawake in a negative light. The application read that the “geographic, political and cultural situation in the community was very sensitive,” and thus a wiretap was required, as opposed to a raid or undercover operation, for example.
De Minico argued in his closing arguments yesterday (Thursday) that the statement insinuated the SQ could not trust the Mohawk Council of Kahnawake or the Kahnawake Peacekeepers to cooperate in an investigation.
“It’s a stereotypical statement not condoned by the Supreme Court,” said De Minico in court. “We’re far from the Oka Crisis. Such a statement is meant to trick the authorizing judge to think they couldn’t go into the reserve because they would face resistance.”
De Minico brought up occasions where an undercover agent went to the winery where he met Lahache, who introduced himself, said he was the owner and further said he could sell wine cheaper than at the SAQ.
The Crown also argued Lahache didn’t have a permit from the SAQ, and thus was illegally importing.
“The first attempt by the undercover agent got all the evidence needed,” said De Minico.
Lahache was one of 10 co-accused in court for three days this week that includes his business partner Luca Gaspari and worker Robert Whitebean from Kahnawake. Diamond Estates’ former CEO Murray Marshall died in February, and Paolo Simone, also charged in 2015, also died this year.
De Minico questioned in court why the SQ needed a wiretap rather than attempting a search and seizure, such as those done in Kahnawake as part of Project Cancun and in the Rice brothers’ case.
Had officers raided the winery, De Minico argued, they could have seized all documents, product and money on the premises.
He argued Lahache’s operation was not a sophisticated criminal enterprise, and that there was “zero evidence” that any officer faced a security risk by using alternative investigative methods.
“What did they expect to find on a wiretap?” questioned De Minico. “Everything was done out in the open.”
The statement about Kahnawake’s geographic, political and cultural situation was one that De Minico returned to several times.
“The police decided to use a stereotypical statement, which should never be used to get a wiretap,” said the lawyer. “The court should be troubled when an affiant (Allaire) makes that kind of statement without evidence. It’s not full, frank and fair disclosure and it’s deliberately misleading.”
De Minico also noted that the court considers wiretapping the most severe form of privacy invasion, and that if the tapping is allowed in the Lahache case, it’ll be allowed everywhere.
Crown attorney Robert Rouleau began his closing argument saying “there is nothing that shows any misrepresentation or misleading of the judge.”
“I think we’re very far from an affiant (Allaire) trying to disregard the truth,” said Rouleau.
Rouleau argued that the application for the tap should not be taken piecemeal, but as a whole, and engaged with an extended argument with judge Gidro about what the officer meant and what was written on the application.
Gidro questioned why Lahache’s admission of paying $157,000 in excise taxes was never mentioned in the application, considering the charge was fraud.
Rouleau argued that “regular business people” don’t talk as Lahache did on the taps, and thus something was “fishy” at the winery.