R v El-Ajami, 2024 ABKB 0020

Court of King’s Bench of Alberta Citation: R v El-Ajami, 2024 ABKB 0020 Date: 20240112 Docket: 220424295Q1 Registry: Calgary Between: His Majesty the King Crown - and - Mohamad Najie El-Ajami Accused _______________________________________________________ Reasons for Decision of the Honourable Justice M.H. Bourque _______________________________________________________ Introduction [ 1 ] Mr.

El-Ajami is charged under a nine-count indictment for a variety of drug offences, including trafficking and conspiracy to traffic in cocaine, fentanyl and methamphetamine, unlawful production of cocaine, and possession of cocaine and fentanyl for the purpose of trafficking. A general overview of the investigation resulting in these charges is set out in the following pre-trial decision of Justice Feasby: R v El-Ajami , 2023 ABKB 394 [ El-Ajami #1 ].

[ 2 ] Mr. El-Ajami’s trial commenced before me on November 20, 2023. A large part of the testimony thus far has included the playing of numerous mobile telephone communications intercepted pursuant to Wiretap Authorization PA-1763 (the “Wiretap Authorization”). The Wiretap Authorization permitted police to intercept Mr. El-Ajami’s private electronic communications made on his mobile phone. However, the trial was adjourned during the cross-examination of the Crown’s first witness as Mr.

El-Ajami’s counsel advised that he would be making an application for a declaration that the Wiretap Authorization was granted without jurisdiction, on the basis that on its face it is retroactive in application. [ 3 ] Mr. El-Ajami further seeks a declaration that a tracking order and assistance order granted on April 3, 2015 was invalid and constituted a breach of his client’s rights guaranteed by

section 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 , s 91(24) [“ Charter ”]. [ 4 ] Regarding the issuance of the Wiretap Authorization, on October 20, 2015, the Crown made an application for the Wiretap Authorization. The Application relied upon an Affidavit and Information sworn by Detective Christie on October 20, 2015. The Wiretap Authorization was issued by Justice Mahoney on October 21, 2015, and it was filed in the Court of King’s Bench on October 22, 2015. Attached to Detective Christie’s Affidavit and Information was a proposed wiretap authorization.

The proposed authorization is dated the same date as Detective Christie’s Affidavit and Information, namely October 20, 2015. The proposed form of authorization was ultimately granted the day following the application. As such, on its face, the Wiretap Authorization provides that: 16. This Authorization, and related Orders and Warrants shall be valid for the period of 60 days, from and including October 20, 2015 to December 18, 2015. [ 5 ] Given that the commencement date precedes the date on which the Wiretap Authorization was issued by Justice Mahoney, Mr.

El-Ajami argues that it is retroactive in application and therefore issued without jurisdiction. That said, Mr. El-Ajami does not contest that the police did not “turn on” the wiretap until after receipt of the filed Wiretap Authorization on October 22, 2015. Nor does he allege that police used the Wiretap Authorization beyond its termination date of December 18, 2015, or that its duration exceeded the 60-day statutory limit. [ 6 ] Mr.

El-Ajami’s counsel also confirmed in oral submissions that notwithstanding certain information was not put before Justice Mahoney relating to an earlier tracking warrant (see for example para 20 of the defence brief), Mr. El-Ajami does not contest the sub-facial validity of the Wiretap Authorization, acknowledging that there was reliable evidence that might reasonably be believed on the basis of which the Wiretap Authorization could have issued ( R v Araujo , 2000 SCC 65 at para 54 ). [ 7 ] In his filed application, Mr. El-Ajami sought a declaration that the Wiretap Authorization is a nullity.

However, in oral submissions, Mr. El-Ajami’s counsel resiled from that position noting that because it is an order of the Court, the Wiretap Authorization is presumed to be valid ( R v Scrivens , 2018 ABQB 1027 , at paras 142ff ). Instead, Mr. El-Ajami’s counsel argues that the Wiretap Authorization is an order that on its face was made without jurisdiction. He submits that there is no jurisdiction within the criminal law, whether in the Criminal Code , RSC 1985 c.

C-46 [ Criminal Code ], or the inherent powers of the Court to a make a retroactive order dealing with a penal statute. [ 8 ] Counsel argues that the problem with the Wiretap Authorization is exacerbated because nobody within the police or in the Clerk’s office had done anything about the fact that the order was granted on a date that is ex post facto the date of commencement. During argument he invited the Court to accept that the information obtained during the Wiretap Authorization was obtained either through carelessness or with knowledge that the Wiretap Authorization was invalid.

He asserts that this irregularity should have been caught through simple due diligence, and the fact that it was not, demonstrates a careless or intentional disregard for Mr. El-Ajami’s Charter rights. [ 9 ] In tandem with his application pertaining to the Wiretap Authorization, Mr. El-Ajami seeks a further declaration that a tracking order and assistance order granted on April 3, 2015 (the “Initial Warrant”) by Justice of the Peace Newcombe constituted a breach of his s 8 rights, demonstrating a pattern of disregard by the Calgary Police Service and the Crown for his Charter rights.

As I will discuss in these reasons, any breaches related to the Initial Warrant, if established, do not assist in answering the question of whether the Wiretap Authorization was issued without jurisdiction. Moreover, as I discuss in these reasons, counsel only requests that I make a declaration that Mr. El-Ajami’s s 8 Charter rights were breached with respect to the Initial Warrant, as there is no evidence to be excluded. [ 10 ] The requested declaration follows a recent declaration by this Court that Mr.

El-Ajami’s s 11(a) (information) and s 7 (disclosure) rights were violated: El-Ajami #1 (at paras 88 and 120 ). [ 11 ] For the reasons that follow, the application for a declaration that the Wiretap Authorization is invalid is dismissed. In my view, Justice Mahoney had jurisdiction to issue the Wiretap Authorization and the fact that the commencement date on the face of the Wiretap Authorization preceded the date of issuance did not deprive Justice Mahoney of his jurisdiction to issue it.

I would interpret the Wiretap Authorization as having effect from the time Justice Mahoney signed it for a period not exceeding 60 days (i.e.: December 18, 2015) and as having no effect at any time prior to having been granted by Justice Mahoney. Alternatively, I would sever from the Wiretap Authorization the dates predating the Court’s authorization of the Wiretap, such that the Wiretap Authorization simply reads that it was valid for a period of less than 60 days, which conforms with the statutory limit set out in paragraph 186(4) (

e) of the Criminal Code . [ 12 ] For the reason that follow, I find and declare that Mr. El-Ajami’s s 8 Charter rights were infringed with respect to the Initial Warrant. [ 13 ] I will address Mr. El-Ajami’s arguments in the same order as presented in his counsel’s brief and oral submissions. Issue #1 – Did the Initial Warrant Constitute or Result in a

Breach of Mr. El-Ajami’s

Section 8 Charter Rights [ 14 ] The following facts are relevant to this issue: (

a) On April 2, 2015, prior to making application for a tracking order, Detective Tudor of the Calgary Police Service made inquiries and received information regarding the identity of the mobile phone service provider (TELUS) for Mr. El-Ajami’s mobile telephone; (

b) On April 3, 2015, Detective Baquie of the Calgary Police Service made application (2015-11032) for the Initial Warrant, pursuant to s. 492.1(2) of the Criminal Code , and an Assistance Order pursuant to s. 487.02 of the Criminal Code ; (

c) The application was granted on April 3, 2015 by Justice of the Peace Newcombe; (

d) The Initial Warrant was granted for a period of 61 days, specifically between April 3, 2015 and June 2, 2015; (

e) The Initial Warrant was transmitted to mobile phone carriers and was active from approximately 10:57 am on April 3, 2015; (

f) From April 3, 2015 to April 6, 2015, information was received by the Calgary Police Service pursuant to the Initial Warrant; (

g) On April 6, 2015, at 10:30 am, Detective Urquhart of the Calgary Police Service emailed Detectives Tudor and Baquie advising that the Initial Warrant had been authorized for a period of 61 days and that therefore it did not meet the requirements of the Criminal Code . He further advised that: “if you used it over the weekend and got any evidence I wouldn’t worry too much about it, but if you are planning on using it in the future you should go get a new order”. (

h) The tracker authorized under the Initial Warrant continued to be used and information continued to be recorded for the balance of April 6, 2015 and until about 4:30 pm on April 7, 2015; (

i) On April 7, 2015, Detective Baquie applied for a replacement tracking device warrant and assistance order to address the problem with the dates authorized under the Initial Warrant. On the same date, at 5:50 pm, Justice of the Peace Higgerty granted the application pursuant to which another tracking device warrant and assistance order was issued for a period of 60 days, specifically between April 7 and June 5, 2015 (the “Subsequent Warrant”). [ 15 ] On these facts, Mr. El-Ajami submits that his s 8 Charter rights were breached. First, Mr.

El-Ajami submits that his rights were breached when the Calgary Police Service obtained the name of his mobile phone service provider without a warrant. He argues that the seeking of that information constituted an illegal search. Second, Mr. El-Ajami submits that his s 8 Charter rights were breached when the Calgary Police Service obtained the Initial Warrant that was facially invalid because it purported to be for a period of 61 days.

He further submits that once Calgary Police Service detectives were advised that the Initial Warrant was defective as being for a duration exceeding 60 days, it could no longer be assumed to be valid, and the Calgary Police Service could not rely on the presumption of regularity. He further submits that it was incumbent upon the Calgary Police Service to immediately cease reliance on the Initial Warrant unless and until a new and valid warrant was authorized. [ 16 ] Before considering these issues, I will address certain factual allegations that Mr.

El-Ajami’s counsel made in his brief and his oral submissions. [ 17 ] In describing the facts surrounding the obtaining of the Subsequent Warrant, Mr. El-Ajami’s counsel states in his brief that: There is no indication in the April 7, 2015 Application or the notes of Detective Baquie that Justice of the Peace Higgerty was ever advised that the Calgary Police Service continued to collect information after being advised that the April 3, 2015 Tracking Warrant and Assistance Order were illegal. [ 18 ] In my view, this is an incorrect statement.

In the Application for the Subsequent Warrant, Detective Baquie disclosed the error with respect to the duration of the Initial Warrant. In the Information on Oath, he swore to the following: 26. On April 3, 2015, I attended the Calgary Court Centre and swore to my [ sic ] an Information to Obtain a Tracking Device Warrant and Sealing Order under Identifier 2015-11032 before Justice L.G. Morris. 27. On April 3, 2015, Justice E.P. Newcombe authorized a Tracking Device Warrant, Assistance Order and Seling Order under Identifier 2015-11032. 28.

Between April 3, 2015 and April 7, 2015 I utilized the Tracking Device Warrant to locate the identified devices . All locations identified were in Alberta. 29. On April 6, 2015 I was contacted by Detective Urquhart who told me that the Tracking Device warrant I had authorized on April 3, 2015 had been for 61 days, not 60 as required in the Criminal Code . [emphasis added] [ 19 ] Second, in oral submissions, Mr. El-Ajami’s counsel invited the Court to speculate as to when Detective Urquhart realized that there was a problem with the duration of the Initial Warrant.

In counsel’s submission, if Detective Urquhart knew on April 3 rd that there was a problem but delayed in sending the email or advising Detectives Baquie and Tudor, a different characterization of the evidence obtained between April 3 rd and April 6 th should be made.

a) Were Police Required to Obtain a Warrant or Other Judicial Authorization to Identify Mr. El-Ajami’s Mobile Service Provider or Carrier? [ 20 ] It is well understood that

section 8 of the Charter guarantees everyone the right to be secure against unreasonable search and seizure ( R v Cole , 2012 SCC 53 at para 34 ). Mr. El-Ajami argues that his

section 8 rights were breached when Calgary Police Service sought “subscriber information” without a foundational application, rather merely a casual request. [ 21 ] The nature of the information sought by police on April 2, 2015 is characterized very differently by Crown and defence. The Crown characterizes the subject matter of the information sought as “service provider” information, while counsel for Mr. El-Ajami asserts it is akin to “subscriber information”. Under either characterization, it is Mr.

El-Ajami’s “informational” privacy interest which is primarily in issue. [ 22 ] A review of the following paragraphs in the Information on Oath sworn by Det. Baquie informs upon the nature of the request: 2. I believe that tracking an individual’s movement by identifying the location of a thing that is usually carried by the individual will assist the investigation of the named offence through the use of a Tracking Device in relation to:

a) the mobile device assigned telephone number 403-804- XXXX (the “804 Number”) usually carried by Mohamed El-Ajami;[...] 25. I read the notes of Det. Tudor for April 2, 2015 and learned the following:

a) Det. Tudor contacted Sgt. Campbell to find out who the service provider was for [the] 804 Number;

b) Sgt Campbell advised that: i) [...] ii) Telus is the service provider for the 804 Number [ 23 ] Citing R v Spencer , 2014 SCC 43 as authority for the proposition, Mr. El-Ajami submits that this request was a warrantless search for subscriber information contrary to the dictum of the Supreme Court of Canada in that case. In my view, Mr.

El-Ajami’s reliance on Spencer is misplaced and erroneous. [ 24 ] In brief, Spencer established that there is a reasonable expectation of privacy in an internet service provider’s subscriber information and that a request for subscriber information in that context amounted to a search. In that case, police were investigating child pornography offences and identified the internet protocol (IP) addresses of users who were sharing what they believed to be child pornography.

Without obtaining prior judicial authorization, a police officer asked internet service providers to volunteer subscriber information associated with an IP address.

The internet service provider acceded to the request, which led police to obtain a search warrant. [ 25 ] Writing for the Court, Justice Cromwell held that the issue of whether the request for subscriber information amounted to a search required an analysis of whether the accused had a reasonable expectation of privacy in the totality of the circumstances and set out categories of factors to be considered: (1) the subject matter of the search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances ( Spencer , at para 18 ). [ 26 ] Recently, in R v Neumann , 2023 ABCA 200 , the Alberta Court of Appeal discussed and summarized the key considerations arising from the four categories of factors identified in Spencer .

In that case, police had obtained the accused’s name and cell phone number from a Winnipeg hotel and a Calgary car dealership through informal requests. The Court affirmed the factors in assessing the reasonable expectation of privacy in the totality of circumstances set out in, inter alia , Spencer , and explained the manner they are to be considered: [48] The first factor, the subject matter of the search, must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission: Marakah , para 15 ; Ward , para 65 .

The subject matter must not be identified narrowly but by reference to the nature of the privacy interests potentially compromised by the state action: Marakah , para 15 ; Spencer , para 26 . It should involve a broad and functional approach to the question examining the connection between the police investigative technique and the privacy interest at stake, looking not only at the nature of the precise information sought, but also at the nature of the information that it reveals: Spencer , para 26 , Marakah , para 15 .

The court’s task is to determine “what the police were really after”: Ward , para 67 ; R v Bykovets , 2022 ABCA 208 , para 14 . The analysis must be robust, broad, and purposive: Marakah , para 19 . [49] The issue is whether the subject matter of the alleged search is core biographical data, revealing intimate and private information which has the potential “to reveal intimate details of the lifestyle and personal choices of the individual”: Spencer , paras 24, 26 ; Marakah , paras 31, 32 ; Tessling , paras 25, 60 ; Bykovets , para 21 .

One must ask whether disclosure affects the dignity, integrity, and autonomy of the person: Plant , 293; Tessling , para 63 . [50] Once the proper subject matter of the search is determined, the second inquiry is whether the target of the search has a direct interest in the subject matter. In that regard there are three sub-categories of interest: territorial, personal, and informational: Tessling , para 20 ; Spencer , para 35 .

Informational privacy may be viewed as secrecy, control, or anonymity: Spencer , para 38 . [...] [52] The requirement to establish a subjective expectation of privacy is “not a high hurdle”: Marakah , para 22 ; R v Jones , 2017 SCC 60 , para 20 , [2017] 2 SCR 696.

[53] Addressing whether a person’s subjective expectation of privacy is objectively reasonable, the Supreme Court in Tessling , para 32 , set out seven factors to be considered: 1. the place where the alleged search occurred; 2. whether the subject matter was in public view; 3. whether the subject matter had been abandoned; 4. whether the information was already in the hands of third parties; if so, whether it was subject to an obligation of confidentiality; 5. whether the police technique was intrusive in relation to the privacy interest; 6. whether the use of any surveillance technology was itself objectively unreasonable; and 7. whether the search exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature. [54] The Court in Marakah limited its review to three of those factors: the place where the search occurred, whether the informational content revealed details of the accused’s lifestyle or information of a biographical nature, and the accused’s control over the subject matter. [ 27 ] Ultimately, the Court of Appeal held that the obtaining of Mr.

Neumann’s name and cell phone number did not have the potential to reveal intimate details about his lifestyle and personal choices and that the disclosure of same did not affect his dignity, integrity, or autonomy ( Neumann , at paras 57- 58 ). Leave to appeal in this case has been sought (SCC, 40931). [ 28 ] In the instant case, the subject matter of the alleged illegal search was the identity or name of Mr. El-Ajami’s mobile phone service provider. As described above, the Information on Oath of Detective Baquie reveals that the Calgary Police Service were clearly aware of Mr.

El-Ajami’s name and his mobile phone number well in advance of applying for the Initial Warrant (see, inter alia , paragraphs 11(b), 15 and 21 thereof). As such, the only information that police obtained from Sargeant Campbell was the name of the service provider for Mr. El-Ajami’s mobile phone. [ 29 ] In my view, Mr. El-Ajami’s comparison of the subject matter of the search as akin to subscriber information is misplaced. A request for “subscriber information” can allow the authorities to match computer activity at a particular point in time with knowledge of where exactly the computer is and who is using it.

Conversely, in the case before me, the authorities already knew the identity of the “who” and were aware of the phone number connected to this person. [ 30 ] Rather, obtaining the mobile phone service provider merely allowed police to correctly identify the mobile phone service provider to whom the assistance order, if granted, would be directed. As noted above, the Court in Neumann reiterated that in ascertaining the subject matter of the search, one must determine “what the police were really after”. In my view, the subject matter was simply the identity of Mr. El-Ajami’s mobile service provider, nothing more.

That is, what the police were after was the name of the entity upon which it could serve the Assistance Order, as evidenced in paragraphs 25 and 27 of Det. Baquie’s Information on Oath sworn April 7, 2015. [ 31 ] The nature of the information sought – whether an individual has a carrier plan with TELUS versus Bell versus Rogers or some other telecommunications company – does not inform whatsoever on any core or even tangential biographical information pertaining to that individual. The information obtained – that it was TELUS – did not reveal, in my view, intimate details about Mr.

El- Ajami’s lifestyle and personal choices. Nor does it allow police to look behind seemingly “mundane” information to find out more about an individual. [ 32 ] This information did not allow police to track Mr.

El-Ajami’s movements and determine the identity of whom he visited prior to obtaining the tracking warrants, nor without the tracking device warrants did the information reveal intimate details of his lifestyle and personal choices compromising his dignity, integrity, and autonomy. [ 33 ] I conclude that the subject matter of the search does not reveal personal information about the user. [ 34 ] Assuming that Mr.

El-Ajami has a direct interest in the subject matter and a subjective expectation of privacy in the identity of his mobile phone service provider, I must determine whether his expectation was objectively reasonable, having regard to the totality of the circumstances. [ 35 ] In so doing, I have regard to the factors laid out in R v Tessling , 2004 SCC 67 at para 32 , as noted above. Tessling also involved an analysis of an informational privacy interest asserted by an accused, which interest may be viewed as a secrecy, control, or anonymity interest.

Again, certain of these factors were focused upon by the Court in R v Marakah, 2017 SCC 59 (para 24 ). The same focus was taken in R v Bykovets , 2020 ABQB 70 (paras 49-51 ). [ 36 ] The place where the search occurred was not commented on by the parties. Presumably, the search occurred within the database of some third party. [ 37 ] There was little evidence touching upon control over the subject matter. Presumably, both Mr. El-Ajami and TELUS had control over this information. The information was therefore already in the hands of a third party.

There was no evidence or submissions addressing any statutory or the contractual framework given the relationship between Mr. El-Ajami and TELUS. Again, it is unclear whether this information was provided directly from TELUS or through some other third-party database. In my view, the distinction makes no difference. [ 38 ] The determinative factor in this case is whether any intimate details of the individual’s lifestyle or core biographical

information were or could be obtained through the subject matter. Again, the information about a mobile phone service provider revealsnothing, including any core biographical data, about the intimate details of a person’s lifestyle and personal choices that wouldcompromise their dignity, integrity, and autonomy.

In Neumann, the Court of Appeal held that the reasonable objective observer wouldnot have, “without more”, an objective privacy interest in their name and cell phone number. [39] In Bykovets, Justice Ho (as she then was) found that the accused’s s 8 Charter rights had not been infringed when policeobtained IP addresses by a third party through whom fraudulent payments had been processed. Police used these IP addresses to obtain aproduction order for the associated subscriber information.

The majority of the Court of Appeal (2022 ABCA 208) agreed that no breachhad occurred, finding that (at para 21): An IP address is an abstract number that reveals none of the core biographical information the issuer of that IP address attaches to it.Standing alone, it reveals nothing. An IP address does not reveal intimate details of a person's lifestyle nor does it, without more, disclosecore biographical information, nor communicate confidential information. An IP address can tell the police something about a persononly if they get subscriber information.

But the police can only get subscriber information if they comply with Spencer and obtain aproduction order. [40] Justice Ho went on to make the following insightful observations (at paras 27 and 33): 27 The Supreme Court has long recognized that a balance must be struck between an individual's privacy interests and concerns aboutsafety, security and the suppression of crime. This was addressed by the Court in R v Tessling, 2004 SCC 67 at para 18: . . . "not every form of examination conducted by the government will constitute a 'search' for constitutional purposes.

On the contrary,only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the governmentaction in question constitute a 'search' within the meaning of s.8"; Evans, supra, at para 11. It is only "[i]f the police activity invades areasonable expectation of privacy, [that] the activity is a search"; R v Wise, (SCC), [1992] 1 SCR 527 at p 533. 33 With respect to the normative inquiry, the Supreme Court described in R. v.

Wong, (SCC), [1990] 3 S.C.R. 36 thatthe question for me to consider is "whether giving their sanction to the particular form of unauthorized surveillance in question would seethe amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society":at 46.

This case also instructs me to answer this question from an ex ante perspective. [41] While I note that the Supreme Court of Canada has reserved judgment on re-hearing in this matter (SCC, 40269), the abovedirection remains applicable in any event. [42] In my view, a person’s privacy interest in their name and cell phone number – or their IP address – ranks higher than in theidentity of their mobile phone service provider in the hierarchy of interests in which a person, including the reasonable objectiveobserver, might claim a subjective privacy interest.

In the instant case, nothing more was offered that would heighten or elevate eitherMr. El-Ajami’s or the reasonable objective observer’s interest in the identity of their mobile phone service provider.

The normativeinquiry into society’s interests and the balance that must be struck falls in favour of the ability of the police to ascertain one’s telecomcarrier information, absent a warrant, given the circumstances before me. [43] I therefore conclude that any subjective expectation of privacy therein is not, in my view, objectively reasonable: a properlyinformed, reasonable, and objective observer would not find that a person has an objective privacy right in the identity of their mobilephone carrier. [44] In his written brief and oral submissions, Mr.

El-Ajami’s counsel referred, at length, to the decision of Justice Henderson,then of the then named Provincial Court of Alberta, in Re Subscriber Information, 2015 ABPC 178 for the proposition that subscriberinformation can only be obtained with judicial authorization. In my view, this case does not assist Mr. El-Ajami’s argument because theidentity of the cell phone provider was not an issue that Justice Henderson needed to determine. Rather, it is clear from paragraphs 2(c)and (

e) that the identity of the telecommunications company linked to the cell phone in issue was already known to the police. Thesetwo subparagraphs make it clear that the identity of the mobile service provider was known before application was made for theauthorizations in issue in that case.

The core issue in the decision involved the manner in which authorities can obtain access tosubscriber information in relation to cell phones for the purpose of advancing ongoing criminal investigations. [45] Justice Henderson explains that (at para 5): The nature and extent of Subscriber Information sought by the [police] is important in relation to this application. On page 4 of the ITOSubscriber Information is defined as "the name and address of the account holder of the target phone". [46] Again, the identity of the accused in the case before me was already known to police.

I therefore agree with the Crown’ssubmissions that the Calgary Police Service did not obtain any information akin to “subscriber information” on April 2, 2015, and thatcases relating to subscriber information are of little assistance to Mr. El-Ajami. [47] For all these reasons, the identity of Mr. El-Ajami’s mobile phone service provider did not constitute core biographical datawhich revealed private information or intimate details of his lifestyle and personal choices infringing his dignity, integrity, andautonomy. Accordingly, I find that Mr.

El-Ajami’s right to be free from unreasonable search or seizure was not breached. A warrant wasnot necessary to obtain this very basic information.

b) Did the Initial Warrant Breach Mr. El-Ajami’s

Section 8 Charter Rights by Reasonof its Excessive Duration? [48] At the relevant time, subsection 492.1(2) of the Criminal Code provided for the granting of a warrant to obtain tracking databy means of a tracking device, which police could be authorized to install, activate, use, maintain, monitor and remove, including by

covert means. The period of validity is defined in subsection 492.1(5) which provides that:

(5) Subject to subsection (6) [not relevant], a warrant is valid for the period specified in it as long as that period ends no more than 60days after the day on which the warrant is issued. [49] In this case, as it relates to the warrant issued pursuant to subsection 492.1(2) of the Initial Warrant, the period of validity isstated as commencing on April 3, 2015 and ending on June 2, 2015, a period which exceeded 60 days by one day. [50] The Crown takes the position that because the date error was corrected within the term of the Initial Warrant, that no breachoccurred.

To the extent that an issue exists concerning the Initial Warrant, the Crown asserts that the offending extra day can be severedtherefrom. [51] In R v Braithwaite, 1986 ABCA 190, a case dealing with authorizations to intercept communications pursuant to the section178.13 of the Criminal Code as it existed at the time and the doctrine of severance, the Court explained as follows (at paras 11-13): [11] It is clear that the principles governing severance of one part of an order from another apply to authorizations issued pursuant to s.178.13. R. v. Munroe (1985) 1985 ABCA 135 , 19 C.C.C. (3d) 486.

In that case Kerans J.A. dealt with an authorization issuedunder the authority of s. 178.13(2) and said at page 487: “The governing rule is that the valid portions of a judge’s order, if severable from the invalid portions, remain valid notwithstanding theexistence of the invalid portions.” And at page 488 the learned justice of appeal said: “David Watt, in Law of Electronic Surveillance in Canada, (1979), suggests that the legislative object in the ‘right to privacy’ law in theCriminal Code is to discipline the Crown when it obtains an invalid authorization.

He would nevertheless invoke the severance rule forall ‘formal’ defects and also for ‘substantial’ defects unless ‘… there is any nexus between the substantive defect or irregularity and theprimary evidence sought to be adduced …’ (p.220). I am not certain that this proposal varies significantly from the traditional severancerule, which requires that the reviewing court only excise that which can be excised. In the context of the admission of wiretap evidence,of course, the Crown must show then that what remains after the excision is valid and authorizes the interception in issue.

In this case, itshould be permitted an opportunity to do so.” [12] This principle of severance was confirmed by the Supreme Court of Canada in Grabowski (1986) 22 C.C.C. (3d) where at page463 Chouinard J. said: “When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannotbe separated but are actually separate authorizations given in the same order, the court in my opinion can divide the order and preservethe valid portion, which then forms the authorization.

In such a case interceptions made under the valid authorization are admissible.” See also R. v. Gill (Alta, c. of A., June 18/86, unreported). [13] A close examination of the authorizations in issue leads me to the conclusion that in the words of Chouinard J. in Grabowski “thereis no clear dividing line between the good and bad parts” and that they are “so interwoven that they cannot be separated.” [52] The principles of severance were applied by Justice Hillier in R v Yong, 2013 ABQB 137, certain facts of which are similar tothose in the instant case.

In Yong, a tracking device warrant had been issued “for a period from January 26, 2010 to March 27, 2010, notexceeding 60 days.” In actuality, the warrant was granted for a 61-day period. On the facts before him, Justice Hillier found that theerror was (at para 29) “in the nature of a minor inadvertent drafting or typographical error” and noted that the tracking warrant had onlybeen operational from January 26, 2010 to the date of the arrest on February 27, 2010, which he found to be within the statutorymaximum.

In dismissing the objection to the validity of the warrant on the basis of the one-day discrepancy, Justice Hillier stated atparas 31-32: Does the discrepancy as to form defeat the reality of substantive compliance? Given that the wording in the Tracking Warrant includedthe statutory maximum, there can be no doubt as to Det. Pennie’s intent to comply. Having concluded that the error was absolutelyunintentional and that police acted upon the Tracking Warrant well prior to the expiry date, I find that this objection must be dismissed.

Had it been necessary, I would have exercised a power to sever the non-compliant expiry date in the Warrant. [...] [53] In R v Chrisanthopoulos (2002), 217 Nfld & PEIR 174, (NLSC), Justice Dunn also dealt with anauthorization to intercept, and related production and assistance orders which were facially invalid. Paragraph 16 of the order stated thatit “shall be valid for a period not exceeding sixty (60) days from and including the 19th day of January 1998, to and including the 20thday of March, 1998”.

However, this time period was invalid as it was actually 61 days in length. [54] Justice Dunn held that the error (although not clerical in nature) was due to inadvertence on the part of the police constableand that there was no intention to gain unlawful advantage in respect of the interceptions. Neither the police who obtained theauthorizations, the authorizing Justice, nor the police involved in actually intercepting the communications noticed the error concerningthe dates. [55] Justice Dunn noted that the interception in issue occurred on March 19th (the 60th day).

The Crown advised that further interceptions occurred on March 20th (the 61st day) but that it would not attempt to enter this tape, acceding that this latter interceptionwould be viewed as unlawful in the circumstances (at para 9). [56] In referring to and applying Braithwaite and Grabowski, Justice Dunn held that the offending part of the authorization couldbe severed, stating that (at para 11):

...I am of the view para. 16 of the authorization granted by Judge P.R. Mitchell and dated January 19, 1998, can be rectified by deleting from the last and second-last lines of the paragraph the following, “to and including the 20th day of March, 1998.” By severing this small portion of para. 16, the time frame set out complies with the sixty-day statutory requirement.

Paragraph 16, below the highlighted portion, will then read: “This Order, which includes a Consent Authorization to Intercept Communications, a Consent General (Video) Warrant, Number Recorder Warrant, Production of Telephone Records Order, and related Assistance Orders, shall be valid for a period not exceeding sixty (60) days from and including the 19th day of January 1998.” [ 57 ] Similar to both Yong and Chrisanthopoulos, I too find that the dates used in the Initial Warrant were the result of an innocent miscalculation or inadvertence on the part of the Calgary Police Service.

This is supported by the language used by Det. Urquhart in his April 6, 2015 email which reads: [Det Tudor] I know I’ve sent you the 60 calendar before and [Det Baquie], not sure if I ever sent it to you but I was under the impression [Det Tudor] would be writing this (I realize I should have asked), but the tracker you guys got authorized is for 61 days. [...] [ 58 ] In my view, the above suggests that the date error is due to a failure to check the proposed dates against the “60 [day] calendar” tool available to the police.

Similar to the Court’s conclusion in Chrisanthopoulos , I too find that the police were not attempting to gain any unlawful advantage in respect of the interceptions by going beyond a 60-day period. [ 59 ] This finding is strengthened by the fact that that police primarily intended to use the tracking device within 60 days for the purpose stated at paragraph 26 of the supporting affidavit: 26. I believe, based on the totality of the investigation, that El AJAMI and HIGHBERG will travel to BC between April 3 and April 6, 2015 or soon after for the purpose of purchasing a large amount of cocaine.

I believe that EL AJAMI will return to Calgary with the cocaine and sell it to customers. I do not know what vehicle EL AJAMI or HIGHBERG might take to BC therefore I require the ability to track their whereabouts by way of their cell phones. I believe that the ability to track their whereabouts will assist investigators with intercepting EL AJAMI and or HIGHBERG while in possession of cocaine. [ 60 ] This paragraph also tends to demonstrate that the police were acting in good faith and were not intentionally attempting to obtain an authorization that exceeded the 60-day maximum duration.

Moreover, upon discovering their mistake, police obtained the Subsequent Warrant. [ 61 ] That said, both Yong and Chrisanthopoulos are factually distinguishable in that in each of these cases the fact that the warrants did not meet the requirements of the Criminal Code concerning the period of validity was not known until after the warrants had expired. In Chrisanthopoulos , the police officer gave evidence as to his belief that he was acting under the authority of a valid authorization throughout (at para 7).

In Yong , the error was only realized during cross-examination of the detective who swore the Information to Obtain (at para 29). I note that both Braithwaite and Grabowski discuss the doctrine of severance in relation to materials intercepted under the ostensible authority of a valid judicial authorization. [ 62 ] In such cases where the error is only discovered after the fact, the Court may rely on the doctrine of severance to retain the valid portions of an order.

However, in the case before me, the police knew early on during the currency of the Initial Warrant of a date error which resulted in the order not meeting the requirements of the Criminal Code . The police continued to engage in tracking despite knowing that this was being done absent valid judicial authorization until they obtained the Subsequent Warrant on April 7, 2015. [ 63 ] A similar situation arose in R v Ader , 2017 ONSC 4643 , a case involving 17 different

Part VI authorizations to intercept private communications. There, Constable Vanderstoop sought and received a one-party consent wiretap (s 184.2) during the investigation on August 25, 2008 (“Authorization #1”) which authorized interceptions between August 25 and October 24, 2008. Following this authorization, wiretapping continued for a number of hours, ostensibly under the authority of the court order.

However, when Constable Diemert, the officer in charge of installation/monitoring of the wiretaps reviewed a copy of Authorization #1, he noted that “it was in fact invalid, as it exceeded the allowable 60 days of such an interception” by one day (at para 44).

The Court found that this was a technical error, with the police unintentionally exceeding the time period and that it did not amount to serious infringing state conduct (at paras 90 and 106). [ 64 ] In response, Constable Vanderstoop made an application by telecommunication (s 184.3) the following day, August 26, 2008, before the same Justice and was granted a warrant authorizing interceptions between August 26 and October 23, 2008 (“Authorization #2”). While the dates provided in Authorization #2 fell within the 60-day permissible period, neither Cst.

Vanderstoop nor the issuing Justice were aware that a tele-authorization under s 184.3 of the Criminal Code only authorized interceptions for a maximum period of 36 hours. Interceptions under Authorization #2 continued on, with a further one-party consent order (“Authorization #3”) being issued on September 5, 2008 in Alberta. [ 65 ] The accused argued, inter alia , that both Authorizations #1 and #2 should be set aside as they failed to meet the statutory pre- conditions for issuance, namely a valid time period for interception.

Of note to the case at bar are the following comments by the Court in Ader (at paras 100-102 ): Authorization #1 is invalid on its face because it was granted for sixty-one (61) days, and it was never implemented. The RCMP realized that it exceeded the maximum period allowed of sixty days. The Crown is not seeking to introduce any interceptions under this Authorization. Authorization #2

Section 184.3 of the Code permits the obtaining of an authorization by way of telecommunication, as opposed to appearing in person

before the authorizing justice. A key feature to a tele-authorization however is a limitation on the duration of such orders. Section184.3(6) permits a wiretap authorization under s. 184.3 to be in place for a maximum of 36 hours.

The RCMP realized that Authorization #1 was invalid and they sought to correct the error by making a telephone application.Authorization #2 was granted for a period of 60 days but was also invalid because it exceeded the 36 hour maximum length for anauthorization obtained by telephone. [66] The Court ultimately allowed two interceptions made during the first 36 hours of Authorization #2 into evidence,notwithstanding its facial invalidity, following a s 24(2) Charter analysis. [67] In my view, the approach taken in Ader best suits the facts before this Court.

The Initial Warrant authorized on April 3 wasfacially invalid, due to its failure to comply with s 492.1(5) of the Criminal Code. This knowledge came to light during the investigation.While the doctrine of severance may assist in addressing historical defects once they come to light, I find its use to be somewhat artificialwhen applied retroactively to justify defects known to the state while the investigation was ongoing.

Here, the Calgary Police Servicebecame aware of this invalidity and yet continued its tracking activities until the Subsequent Warrant was issued. [68] While R v Ting, 2016 ONCA 57 involved a warrant to search personal premises, the Court’s comments concerning continuedsearches under an invalid warrant inform upon the approach to be taken in the present matter. In Ting, the police obtained an initialwarrant to search specific premises in a multi-unit building.

When the police entered the building, they did so through a basementapartment which they mistook for an entrance to a landing that would lead to the target apartment as named in the warrant. Uponentering the basement, the police realized that it was not a mere landing – it was a separate apartment.

As drugs were in plain sight,police continued their search for an hour and forty minutes prior to pausing the search to obtain a separate warrant to search the basementsuite. [69] On a voir dire, the first search warrant was held to be facially invalid, as it failed to describe the precise location of the search.The trial judge found, inter alia, that the continued search by police (lasting one hour and forty minutes) while knowing that they werenot authorized to search in this area was a violation of the accused’s s 8 rights.

The trial judge invalidated the second warrant on the basisof both facial invalidity and on the grounds that police either knew, or should have known, that they were operating under an invalid firstwarrant but continued their search in any event. [70] In upholding the trial judge’s findings, the Court of Appeal, in discussing the s 24(2) analysis, held (at paras 79-80): What was problematic was the decision to search the basement apartment when it was, or should have been, immediately obvious thatthe police did not have the authority to be present there. [...] Knowing that they were in premises not authorized by the search warrant, and in the absence of exigent circumstances, the police oughtto have left the premises immediately and sought a further warrant. [...] [71] A similar analysis applies on the facts before me.

The issue is not limited to the facial invalidity of the Initial Warrant. Rather,the larger concern arises when, determining they were operating under the invalid Initial Warrant, police continued their search (here, thecontinued tracking under the “authority” of the Initial Warrant). Rather, upon realizing the error, the police should have immediatelyceased any further tracking until they received the Subsequent Warrant. The Crown’s argument that the fact that the police obtained theSubsequent Warrant within the valid portion of time provided for in the Initial Warrant negates any concerns, is problematic.

Similar toTing, I find that the police were not entitled to continue tracking under a facially invalid warrant until such time as the SubsequentWarrant was issued. [72] The Criminal Code does not allow an authorization for periods longer than set out in the applicable portions of

Part VI. Awarrant that fails to comply with statutory pre-conditions is facially invalid and does not authorize a search or seizure.

In Canada(Director of Investigation & Research, Combines Investigation Branch) v Southam Inc, (SCC), [1984] 2 SCR 145 theCourt held (at page 160): A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search andseizure both at common law and under most statutes. [73] Absent valid authorization, I find that the tracking activities engaged in by the Calgary Police Service between April 3 toApril 6, 2015 pursuant to the Initial Warrant infringed upon Mr.

El-Ajami’s right to be secure against unreasonable search or seizure.The Crown has already indicated that it intends to make no use of the evidence derived from either the Initial Warrant or the SubsequentWarrant. Again, counsel for Mr. El-Ajami does not assert any nexus between information gathered pursuant to, or any derivativeevidence obtained from, the invalid Initial Warrant and the Wiretap Authorization.

He does not challenge the sub-validity of the WiretapAuthorization. [74] Much was made over the lack of notes from Detectives Tudor and Urquhart, with a suggestion that there was either an attemptto hide (or a delay in disclosing) this error or at the very least there was negligence in police note-taking. Defence counsel suggests thatthis distinction may be determined by hearing from these individuals.

With respect, I do not think it very likely that either of thesewitnesses would be able to independently recall their exact roles regarding the detailed procedural steps taken in a lengthy investigationoccurring approximately nine years ago. [75] As such, on the given evidence, I will infer that the s 8 Charter breach prior to Detective Urquhart’s April 6 email whichraised the issue was inadvertent and that police deliberately breached Mr.

El-Ajami’s s 8 rights during the period between receipt of thisemail and the issuance of the Subsequent Warrant, knowing that they were proceeding pursuant to an invalid warrant. [76] At this point of the proceedings all counsel for Mr. El-Ajami has requested is a declaration that the Initial Warrant breachedMr. El-Ajami’s s 8 rights. I so declare.

[ 77 ] In so doing, I am mindful of the Court’s comments in Neumann (at paras 76-77 ): As indicated, the parties agreed that if the first warrant was granted improperly, there would be a "cascading effect" and the subsequent ITOs and warrants would not stand. There can be no "cascading effect" by which a deficiency in obtaining one warrant automatically and invariably taints all subsequent warrants.

While that effect was conceded by the Crown at trial, the Court is not bound by concessions on points of law: Ernst v Alberta Energy Regulator , 2017 SCC 1 , paras 15 , 182, [2017] 1 SCR 3; Orphan Well Association v Grant Thornton Ltd , 2019 SCC 5 , para 125 , [2019] 1 SCR 150. The validity of each warrant must be assessed individually, and a mistake at the beginning of an investigation does not invariably taint the entire investigation. Each warrant must be assessed based on whether the evidence was "obtained in a manner" that infringed a Charter right.

There is no hard and fast rule, and if the connection to an earlier breach is "remote or tenuous", or the contextual connection is severed, then the evidence is admissible: R v Beaver , 2022 SCC 54 , paras 93 , 97, 105, 110, 420 CCC (3d) 421.

As discussed, even if asking the Rockwood Inn for Mr Neumann's name and telephone number was an unreasonable search, the subsequent warrants severed the real evidence of the seized drugs from that threshold breach. [ 78 ] This of course is not to say that a Court should not consider the cumulative effect of Charter breaches in a s 24(2) analysis: R v Robertson , 2019 BCCA 116 at para 52 . Issue #2 - Jurisdiction to Issue the Wiretap Authorization [ 79 ] A superior court judge may authorize the interception of private communications pursuant to

section 186 of the Criminal Code . That

section sets out both the criteria which the judge is required to apply when considering whether to grant the request for an authorization to intercept private communications as well as what must be contained in the authorization. Subsection 186(4) requires that: An authorization shall (

a) state the offence in respect of which private communications may be intercepted; (

b) state the type of private communication that may be intercepted; (

c) state the identity of the persons, if known, whose private communications be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used; (

d) contain such terms and conditions as the judge considers advisable in the public interest; and (

e) be valid for the period, not exceeding sixty days, set out therein. [ 80 ] There is no doubt that, in respect of the Wiretap Authorization, the Crown’s application and the supporting Affidavit and Information are dated October 20, 2015, and that the proposed form of Wiretap Authorization sets out a duration commencing on October 20, 2015 and ending on December 18, 2015. That duration does not exceed the 60-day statutory limit set out in s. 186(4) (e).

On the other hand, the Wiretap Authorization is issued October 21, 2015, the next day, and no change is made to its duration, such as by crossing out 20 and inserting the number 21. [ 81 ] In his brief, counsel for Mr. El-Ajami asserts that it is unknown whether this is a simple typographical error or whether the authorization was intended to operate retroactively. The Crown asserts that this question is irrelevant and that the governing question is whether the Wiretap Authorization could have been granted.

The Crown takes the position that the Wiretap Authorization complies with the requirements set out in s 186 and is jurisdictionally sound. [ 82 ] It is common ground that the actual interceptions which occurred pursuant to the Wiretap Authorizations did not occur until after police had obtained judicial authorization – that is, the interceptions did not occur on October 20, 2015, or until the authorization was received. [ 83 ] As I understand the various positions put forth, one of three things occurred:

a) Justice Mahoney issued an authorization intending that it apply retroactively. As such, the order is invalid due the fact that it provided for the interception to commence prior to the issuance of the order. The court does not have jurisdiction to authorize a retroactive order;

b) Justice Mahoney signed the authorization aware of the requested dates, but the authorization was not retroactive in nature. Rather, it was truncated within a valid timeframe. The Justice knew the authorization could not operate retroactively, and so the resulting order was valid on a go-forward basis; essentially truncating a 60-day authorization period into one of only 59 days’ duration; or

c) Justice Mahoney received a proposed form of authorization which had already set the commencement date as October 20, 2015 – a date corresponding with execution of the supporting affidavit and information of Detective Christie and application for authorization made by Lori Ibrus as agent. Presumably, there was a belief that the authorization would be signed the same day it was made. None of these individuals realized that although the authorization was issued the following day (October 21) it incorporated the earlier October 20 date used in the proposed form.

The period authorized was therefore an inadvertent error. [ 84 ] Counsel for Mr. El-Ajami states in his brief that nowhere in the disclosure is there any indication of any recognition that this date issue was a problem. He suggests that the Calgary Police Service should have noted the retroactive dating and made the necessary inquiries to correct it. The only evidence before me was that this issue came to light mid trial, when the application was brought.

[ 85 ] In R v Violette , 2008 BCSC 210 the police obtained a one-party consent authorization to intercept private communications (P33/2004). In it, the affiant officer deposed what he believed to be an accurate

summary of the target’s role in the investigation. He requested the intercept period be between April 16 and June 14, 2014. However, the affidavit in support contained a number of errors, including incorrect references to other parts of the affidavit. For example, the officer stated he had reasonable grounds to believe that “the offences set out in paragraph 9 above” would be committed. Paragraph 9 referred to a CPIC inquiry but did not reference any offences.

An error was also made concerning the area code of a phone number attributed to a police agent. [ 86 ] On April 19, a second authorization to intercept was obtained (P34/2004) to replace authorization P33/2004. The accompanying affidavit was sworn in support to replace authorization P33/2004 to correct the errors in the earlier authorization. The officer relied on the facts contained in his affidavit filed in support of P33/2004 and attached this former affidavit as an exhibit to his current affidavit.

The officer also deposed that he was “seeking a new Authorization containing all of the same terms and conditions…as contained in authorization P33/2004”. [ 87 ] In his April 19 th affidavit the officer deposed as follows: This affidavit is sworn in support of an Application for Authorization to Intercept Private Communications" and a video warrant "with the following terms and conditions...". [ 88 ] However, the officer did not include in the terms and conditions the period for which the replacement order was valid.

Notwithstanding this, the Court found that (at para 75): The affidavit filed in support of P 34/2004 did set out the period for which the authorization was requested, albeit an incorrect period, and thus complied with the requirements of s. 184.2(2)(d). [ 89 ] While no terms and conditions were stated other than those incorporated under P33/2004, in the authorization signed by Associate Chief Justice Dohm, the validity period was stated as being between April 19 and June 16, 2004 (at para 76). [ 90 ] The result was therefore that the P34/2004 authorization was valid from April 19 to June 16, 2004 .

However, the request in P34/2004 was for the same terms and conditions contained in P33/2004 to be incorporated into the April 19 th Authorization, which utilized the April 16 to June 14, 2004 dates. [ 91 ] Counsel for the accused argued that the affidavits in support failed to comply with the Criminal Code and the authorizations were therefore improperly granted and invalid. [ 92 ] One party consent applications are governed by s 184.2 of the Criminal Code which provides that: (2) an application for an authorization under this

section shall be made by a peace officer [...] and shall be accompanied by an affidavit [...] deposing to the following matters: (

d) the period for which the authorization is requested; [...] (4) an authorization given under this

section shall [...] (

e) be valid for the period, not exceeding sixty days, set out therein. [ 93 ] The Court found that in authorization P33/2004 the applicant requested the duration period of April 16 to June 14, 2004, and that this request mirrored the terms of the authorization itself. It concluded that P33/2004 was facially valid. Turning to authorization P34/2004, the Court noted that the supporting affidavit incorporated the same terms (i.e.: the same validity period) requested in P33/2004.

The Court went on to state as follows (at paras 76-78): Then, the affiant set out the terms and conditions of the one-party consent authorization and general video warrant he sought in his P 34/2004 application, where he stated, "This affidavit is sworn in support of an Application for Authorization to Intercept Private Communications" and in support of a video warrant "with the following terms and conditions...", but he did not include in the terms and conditions the period for which the order was valid (paragraph 4).

In the authorization signed by Associate Chief Justice Dohm, the validity period was stated as including the 19th day of April, 2004, up to and including the 16th day of June, 2004, being a period not exceeding sixty (60) days. Clearly, the affiant made an error in his affidavit, as the validity period for P 33/2004, being from April 16, 2004 to June 14, 2004 was different from the validity period in P 34/2004, and indeed had to be different because the validity period for P 34/2004 could not have been retrospective and thus could not have commenced prior to the date of issuance, being April 19, 2004.

In my view, the issue is not whether the affidavit met the requirements of s. 184.2(2)(d), but rather whether the error is fatal to the affidavit. The issuing judge could have granted the authorization based on the material before him. In my view, the error in the affidavit was technical, minor, and did not go to the substance of the affidavit or the application.

The affidavit was before a very experienced judge who acknowledged in the opening paragraph of the authorization that he read the affidavit. [...] [emphasis added]. [ 94 ] The Court concluded that, unlike in Blizzard , infra , this was not a case in which the issuing judge did not realize that the period requested in the affidavit was at odds with the period granted in the authorization.

Rather, it concluded that the issuing Justice exercised due care and diligence in reviewing the materials and was therefore aware of the error manifested through adopting the terms and conditions of an earlier affidavit in support. The Justice accounted for this inadvertent error and issued P34/2004 as commencing upon the date on which he issued the authorization.

[95] In the above discussion, the Court expressly found that the period in order 34/2004 had to be different from the periodrequested in P33/2004 because to find otherwise would have provided for the making of a “retrospective” order, which could not havebeen done. During oral submissions, counsel for Mr. El-Ajami indicated that he was using the terms “retrospective” and retroactive”interchangeably. [96] The Court concluded (at paras 80-81): The error in the case at bar was clearly manifest before Associate Chief Justice Dohm.

The validity period for this new authorizationcould not be the same as P 33/2004, as the validity period for P 33/2004 commenced on April 16, 2004, while P 34/2004 was notissued until April 19, 2004; it therefore could not have commenced before April 19. The Crown submits that the insignificant natureof the error allowed the Associate Chief Justice to grant the authorization. In my view, this is not the same as the situation in Blizzard where the end date on the authorization was later than the end date requestedin the affidavit.

The New Brunswick Court of Appeal assumed that the issuing judge did not realize that the period requested was at oddswith the order he eventually signed. One cannot assume the same here, as Associate Chief Justice Dohm could not have issued anauthorization retrospectively, which would have been the case if the period in the authorization was the same as the periodrequested in the affidavit.

One can reasonably assume in the context of this case that Associate Chief Justice Dohm would have drawnthe inference of inadvertent error and signed the authorization regardless. [emphasis added] [97] Again, the same may be said in the case before me, namely that Justice Mahoney would have known that he could not haveissued an authorization retrospectively, and that in executing the Wiretap Authorization on October 21, 2015, he was knowinglytruncating the length of the period for permitted interceptions to something less than the 60 days applied for.

I note that, similar toViolette, Detective Christie’s Information and Affidavit was likewise before a very experienced Justice who was aware of the dates notedin the supporting materials, having similarly commented in the opening

preamble that “UPON READING the Applications, supportingInformation and Affidavit of Detective Brad CHRISTIE, dated October 20, 2015”. [98] R v Blizzard (2001), 233 NBR (2d) 194, (QB), varied on other grounds 2002 NBCA 13 (leave to appealrefused, SCC 29133) also dealt with a problematic duration period in an authorization to intercept private communications. In Blizzard,the Court was provided with an affidavit dated April 25, 2000, requesting a wiretap authorization for a period between April 25, 2000 toJune 22, 2000.

It was granted. [99] On May 26, 2000, an affidavit was filed in support for a further authorization targeting additional persons and places ofinterception. Both the affiant and the Justice were the same individuals who were involved in the April 25 authorization. An affidavit dated May 26 was provided to the Court, with a copy of the April 25 affidavit appended.

In the May 26, 2000 affidavit, the officerrequested authority to intercept communications between April 25, 2000 and June 22, 2000 (i.e. he inserted the earlier requested datesfrom his prior affidavit). [100] Notwithstanding the requested dates, the Court authorized a wiretap providing that: This Authorization shall be valid from and including the 27th day of May, 2000, to and including the 25th day of July, 2000, being aperiod of not exceeding 60 days. [101] As such, the actual authorization contained dates which went beyond the time requested in the affidavit in support (that is, theauthorization permitted interceptions until July while the affidavit only requested interceptions until June).

The lower court stated thatthere were no grounds upon which it could infer that the difference between June 22, 2000 and July 25, 2000 was simply some sort ofword-processing or clerical error absent legal significance (at para 15). It found that the issuing judge erred in extending the time periodto sixty days post-authorization, holding instead that (at paras 16-17): In my view the Code does not allow a judge to authorize interceptions for longer periods than formally requested or to approveinterceptions retroactively.

Subject to the other challenges to the validity of the authorization dates May 26, 2000, in my opinion I must interpret that authorization asbeing in effect only from when it was signed on May 26, 2000 to and including June 22, 2000. [emphasis added] [102] On appeal, the Crown’s position was summarized by the Court of Appeal as follows (2002 NBCA 13 at paras 19-20): The Crown, for its part, contended that it should be obvious to anyone that the period requested in the affidavit in support of the May 26,2000 order was simply a word processing error which could not invalidate the order of the authorizing judge, an order which was, on itsface, valid in all respects.

The Crown did not seek leave to adduce evidence in support of its contention. It argued that it was clear that the person responsible forthe drafting of the affidavit and the authorization order had erroneously tracked the wording of the affidavit used in support of the firstorder of April 25, 2000 and had failed to make the necessary amendments to reflect the intention of the Agent for the Deputy SolicitorGeneral of Canada which was and has always been to request an authorization order covering the period contained in the order ultimatelysigned on May 26, 2000.

Such an error, it was argued, could not invalidate the order which, on its face, was clearly a valid ordercovering a period of 60 days set out in the order as provided in s.186(4)(

d) of the Code. [103] The Court of Appeal agreed that the May 26 Authorization could not extend past the date requested in the affidavit. It refusedto disturb Justice McLellan’s decision, holding that (at para 43):

In this case, the inference under discussion relates to the intention of the police authorities with respect to the period requested in the affidavit, which, in my respectful view, is a question of fact or, at best, mixed law and fact. [ 104 ] Blizzard is another example of the Court confirming that authorizations are not to be made retroactively, nor can the period of authorization go beyond the period requested in the affidavit.

In cases where a discrepancy exists between the dates requested in an affidavit in support and the authorization proper, the Court may infer that the authorizing Justice issued the authorization in a manner consistent with established law. [ 105 ] Both Violette and Blizzard support the Crown’s position that an issuing Justice would take care to ensure that an authorization is not retroactive in scope, as under law it cannot be. [ 106 ] Blizzard also discusses how the court might infer the intent of the affiant.

Here, Detective Christie’s stated intention is “that the Authorization…be valid for [ sic ] time specified in paragraph 16 of the Proposed Authorization”. Again, paragraph 16 of the actual Authorization provides that the Wiretap Authorization shall be valid for the period from and including October 20, 2015. [ 107 ] In my view, this inference is based on the assumption that the Wiretap Authorization was going to be executed on the same day it was sought.

As this was ultimately not the case, intent may be inferred from the nature of the information the affiant was attempting to intercept through the use of the Wiretap Authorization. A review of the Affidavit and Information in its totality does not support an inference that police were looking to intercept prior to the issuance of the Wiretap Authorization or to take steps pending its authorization.

To the contrary, the following type of forward-looking language is used, examples of which include: • My Application, if granted will afford evidence that will assist this investigation [...] I also believe that characteristics of the relationship amongst the PKP’s [principal known persons] will be discovered . [...] (para 11) • If an Authorization is granted , investigators may conduct interviews with PKP’s, family members friends or associates [...] (para 176(

a) and (c) • Should an authorization be granted , surveillance will be used [...] (para 176(g)) • By using traditional investigative techniques along with interception of the private communications of the PKP’s, I believe that investigators will learn information related to the named offences (para 177) • Investigators intend to intercept the communications of the PKP’s at the places referred to [...] (para 177(b) [ 108 ] In sum, the Affidavit and Information discusses police tactics that may be used in the future, following the granting of the Wiretap Authorization.

There is nothing in the language of the Affidavit that suggests or supports an inference that police planned to engage in any of these steps prior to the actual execution of the Wiretap Authorization. In addition, it appears that a significant component of Detective Christie’s investigative strategy was to receive the Wiretap Authorization and then start interviewing persons known to the accused in the hopes that this involvement by police would stimulate conversation between the named individuals, leading to useful interceptions.

Again, this strategy portrays tasks or events that would hopefully occur in the future, following the issuance of the Wiretap Authorization. [ 109 ] In my view, there is nothing in the wording of the Affidavit and Information and the Wiretap Authorization that infers police intended for the Wiretap Authorization to operate retroactively. The steps proposed by police are contingent on the actual date of granting, not the stated commencement date governing the intercept period. Is the failure by the issuing Justice to cross out 20 and insert 21 sufficient to oust his jurisdiction to grant the Wiretap Authorization?

In my view, the answer is no. I find that the above authorities support the Crown’s position that Justice Mahoney effectively granted the Wiretap Authorization for a period of 59 days, it having been authorized on the day following the application. It was therefore within his jurisdiction to make such an authorization. [ 110 ] Like in Blizzard , I would interpret the Wiretap Authorization as being in force and effect from the time that Justice Mahoney granted it on October 21, 2015.

Again, I infer from the language used in Detective Christie’s sworn Information that there was no intention or request for the proposed Wiretap Authorization to have retroactive effect. [ 111 ] I further infer that the application materials were prepared and finalized on October 20, 2015, were delivered or presented to the issuing Justice for consideration on that date, and that the draft proposed order included a duration that was predicated on the Wiretap Authorization being granted on the same day as the application.

Evidently, Justice Mahoney granted the Wiretap Authorization on October 21, 2015, and, at the time of doing so, he did not ascertain that the pre-printed commencement date preceded the date on which he granted it. As in Violette , it is clear from the Wiretap Authorization recitals that Justice Mahoney had read the application and supporting Information and Affidavit.

I would reasonably assume that Justice Mahoney “would have drawn the inference of inadvertent error and signed the authorization regardless”. [ 112 ] Alternatively, for the reasons previously stated and as in Yong and Chrisantopolous , I would apply the doctrine of severance to paragraph 16 of the Wiretap Authorization and remove “for the period of” and “from and including October 20, 2015 to December 18, 2015.” Properly severed, it would comply with the requirement in paragraph 186(4) (

e) of the Criminal Code as not exceeding sixty days. It would thus read: This Authorization, and related Orders and Warrants shall be valid for a period not exceeding 60 days. [ 113 ] In either event, I conclude that the issuing Justice could have granted the Wiretap Authorization based on the materials before him. [ 114 ] For all these reasons, the Wiretap Authorization was not issued without jurisdiction as submitted by Mr. El-Ajami. Accordingly, Mr. El-Ajami s 8 Charter rights were not breached in this regard.

Charter remedies [115] During submissions, the parties indicated that they would like to reserve their opportunity to speak to any remedies availableunder s 24(1) or (2) should a breach be found. I did find a breach of Mr. El-Ajami’s s 8 rights in relation to the execution of the InitialWarrant (the “Tracking Warrant Breach”).

However, as the Crown has already indicated that it is not going to tender evidence fromeither tracking warrant, there is no cause to argue exclusion of evidence. [116] While I am open to hearing further argument to the contrary on this point, it would seem, given the evidence, that the TrackingWarrant Breach would not warrant a stay of proceedings under s 24(1). As noted by Justice Feasby in El-Ajami #1 (at para 122): A stay of proceedings is a remedy that is reserved for "rare occasions" and the "clearest of cases": R v Babos, 2014 SCC 16 at para 31; Rv O'Connor, (SCC), [1995] 4 SCR 411 at para 68.

Watson JA called it a "nuclear remedy": R v Mamouni, 2017 ABCA347 at para 36. But in the context of Charter s 11(b), a stay of proceedings is the "minimum remedy, to which others may be added, suchas, possibly, damages . . .

": Rahey at para 51. [117] Even if Detective Urquhart was aware of the invalidity of the Initial Warrant prior to his April 6, 2015 email alerting otherofficers to this issue, and even though the officers continued to take steps pursuant to the Initial Warrant for a short period of time beforesecuring the Subsequent Warrant, it is difficult to view this breach as one which goes to the heart of the integrity of the justice system. [118] I note that in acknowledging the breaches of Mr. El-Ajami’s s 11(

a) and s 7 rights in El-Ajami #1 and in refusing to grant a stay,Justice Feasby noted that (at para 135): …Though a remedy is often conceived of as an order or award, perhaps the recognition of the Charter breaches in these Reasons isremedy enough. There is value in acknowledging a breach of Charter rights even if no remedy is available. Acknowledging that a wronghas been committed pays respect to the individual who suffered the wrong. But recognizing the wrong also has an important expressivefunction: see, Cass R. Sunstein, "On the Expressive Function of Law" (1996) 144:5 U Pa L Rev 2021.

By identifying the right andrecognizing its infringement, the Court plays a role in establishing a social norm even where there is no sanction.

Put differently, judicialrecognition of an infringement of a right enhances knowledge of the content and significance of the right, both among those who hold theright and among the individuals charged with enforcing the criminal law, such that the right may be more frequently honoured.Sometimes the reasons are the remedy. [119] Having now found three Charter breaches (although each being relatively minor in nature) I take particular note of JusticeFeasby’s closing observations that if Mr.

El-Ajami is convicted, this Court may take notice of these breaches as a consideration indetermining a just and appropriate sentence: R v Nasogaluak, 2010 SCC 6 at paras 47-55. Disposition [120] Mr. El-Ajami’s application is allowed in part. I find and declare that his s 8 Charter rights were breached in relation to policeactivity engaged in pursuant to the Initial Warrant. His application to have the Wiretap Authorization declared invalid or issued withoutjurisdiction is dismissed. Heard on the 15th day of December 2023. Dated at the City of Calgary, Alberta this 12th day of January 2024. M.H. Bourque J.C.K.B.A.

Appearances: Frantisek (Frank) Polak for the Crown Gregory Lazin for the Accused