Canada's deportation of alleged Mafia boss hinges on foreign eavesdropping

A federal deportation appeal on Monday that will decide whether an alleged Mafia boss must return to his native Italy is raising questions about foreign interference and constitutional rights in Canada.

At stake is the question of whether a foreign government should be able to arrange warrantless surveillance of a person on Canadian soil, and then use evidence obtained in a Canadian legal proceeding.

Vincenzo "Jimmy" DeMaria was born in Siderno, Italy, but has resided in Canada for most of his life.

Siderno is in the poor, southern region of Calabria — the toe on the boot of the Italian peninsula. The seaside town was home to a group of family clans of the Calabrian Mafia known as 'Ndrangheta that began to migrate to the Toronto area in the 1950s.

The DeMaria family arrived in Canada in 1955 when Vincenzo DeMaria was just nine months old. Despite living in the country for all of his 71 years, he would never become a Canadian citizen.

Both the Italian and Canadian governments declined to speak directly about the case.

However, court filings provide a clearer picture of the Canada Border Services Agency (CBSA)'s allegations against the alleged mob boss.

The 'Ndrangheta surpassed the Sicilian Mafia to become Italy's most powerful organized crime group many years ago, and it has spread its operations across Europe and the world, most notably Canada.

In Toronto the 'Ndrangheta has been targeted in some of the biggest police operations of recent years, such as Project Sindacato in 2019, which focused on its illegal gambling operations.

Canadian police have identified the most prominent branch of the 'Ndrangheta operating in Canada as the "Siderno Group," sometimes referred to in Italy as the Society of Siderno, because of its origins in DeMaria's hometown.

Members of the group have allegedly accumulated considerable wealth through drug-smuggling, loan-sharking and other illegal activities, and were even able to infiltrate Canadian banks.

The Government of Canada has argued that DeMaria is a senior figure in that criminal underworld, which he denies. His lawyer Jessica Zita told CBC News that DeMaria is a property manager.

"He owns a number of properties and he manages all of them. Previously he was in the financial services business," she said.

Italian police, however, have described him as one of the most senior leaders of the 'Ndrangheta in Canada, and a member of the group's Camera di Controllo, the equivalent of the Sicilian Mafia's Commission. DeMaria has denied those allegations.

In 1981, DeMaria shot a fellow Italian immigrant seven times in Toronto's Little Italy neighbourhood, and received a second-degree murder conviction for which he served eight years in prison. Because of that conviction he was never able to obtain Canadian citizenship and, like all convicted murderers, DeMaria is on parole for life, making him subject to re-arrest at any time.

DeMaria has spent much of his life fighting to remain in Canada. His original deportation order, resulting from his murder conviction, was quashed in 1996.

He was arrested again in 2009 and 2013 for associating with organized crime figures in violation of his parole conditions, which bar him from contact with even his own brother.

In April 2018, he was ordered deported again on grounds of organized criminality, and placed in detention in the Collins Bay Institution in Ontario, pending appeal, only to be released into house arrest in 2020 as the COVID-19 pandemic hit and he had his own health complications.

While he was in prison in 2019, a murder in Siderno triggered a string of events that would become central to his case.

A high-ranking mafioso called Carmelo "Mino" Muià was ambushed, and his brother Vincenzo Muià set off on a quest to find out who did it. Police have suggested he may also have been seeking the permission of the 'Ndrangheta's governing body to take revenge.

His journey brought him to Canada, where he visited his second cousin DeMaria in prison at Collins Bay.

What Muià didn't know was that the Italian Carabinieri — equivalent to Canada's RCMP — had installed spyware that effectively turned his phone into a microphone that was always on.

In order to record his conversations on Canadian soil, however, they needed the co-operation of Canadian police. The Italians asked York Regional Police (YRP) for assistance both in intercepting communications and in maintaining surveillance on Muià while he was in Canada.

But a Canadian Crown lawyer who was asked to review the request argued it should not be granted. Jeffery Pearson sent a letter to police in March 2019 stating that that he had found an "insufficient basis" to authorize surveillance under Part VI of the Criminal Code.

He said there were "no reasonable and probable grounds to believe that either Mr. Muià or [travelling companion] Mr. Gregoarci have committed, or are committing, an offence in Canada."

DeMaria's lawyers argue in their petition that things should have stopped right there.

"Despite Pearson's clear denunciation and without the required judicial authorization, YRP moved ahead with the investigation and Mr. Muià's conversations during that time were illegally intercepted."

They say the Muià was not only bugged but also placed under physical surveillance, without seeking judicial authorization and ignoring the legal advice given by Pearson.

If they are successful, it would not be the first time that over-aggressive surveillance by York Regional Police may have sabotaged a case against alleged 'Ndrangheta members.

Prosecutions arising from the Project Sindacato investigation, announced with great fanfare in 2019, ultimately fell apart in 2021 because YRP investigators were accused of eavesdropping on privileged conversations between the accused and their attorneys.

DeMaria's lawyers dispute CBSA's arguments that the recordings made on Muià's phone support its contention that DeMaria is involved in organized crime.

Only transcripts have been provided to Canadian courts and those appear to include lengthy sections that are paraphrased rather than verbatim.

They also dispute whether references to a "Jimmy" in the recordings are really even about their client. And DeMaria's defence has poured scorn on the use of a police informant, Carmine Guido, who at times professed ignorance about the inner workings of the 'Ndrangheta, and who also made hundreds of thousands of dollars selling drugs while working with police.

But their main argument against the CBSA's effort to remove DeMaria is that it relies on illegal recordings made at the instigation of a foreign government without regard for Canadian laws and civil liberties.

If the precedent is allowed to stand, Zita says, "what that's saying is any foreign government can listen to us."

She argued that the admission of paraphrased discussions "that aren't authenticated, that aren't tested," would also set a dangerous precedent.

While declining to discuss DeMaria's case specifically, CBSA spokesperson Rebecca Purdy told CBC News that officials follow the law.

"CBSA has a legal obligation to remove all foreign nationals found to be inadmissible to Canada under the Immigration and Refugee Protection Act," she said.

"There are multiple steps built into the process to ensure procedural fairness and the CBSA only actions a removal order once all legal avenues of recourse have been exhausted."

Zita says it's not that CBSA broke the law, but rather that it's relying partly on evidence collected illegally by York Regional Police.

That, she said, must not be allowed to stand.

"[Officials could] find ways through other countries outside of our borders with lower standards for evidentiary rules, take whatever evidence they're able to get using our technology, without having to report to anyone about it, bring that evidence back into our country and rely on it without any sort of testing whatsoever," she said.

"That's as good as having no evidence at all. And it is demonstrably unfair for there's no way to reply to that. That's teetering very close to being an authoritarian regime."

The virtual hearing begins on Monday at the Immigration Appeal Division in Toronto. The first witness is expected to be an investigator of the Carabinieri unit that made the original request for surveillance of Muià in Canada.