COURT FILE NO.: 08-11565 DATE: 2016-08-12
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN James Cavanagh, Jason Neubauer and Louise Tansey, for the Crown/Respondent Respondent
- and -
NAWAF AL-ENZI Applicant Alan D. Gold and Etai Hilzenrat, for the Applicant
HEARD: June 20 and 21, 2016, at Ottawa, Ontario
MADAM JUSTICE B. R. WARKENTIN
REASONS ON APPLICATION UNDER s. 8 and 24(2) of the CHARTER RE: CALL DETAIL RECORDS APPLICATION
[1] The Applicant stands charged with committing the murder of Mohammed Zalal (“Zalal”) on the night of August 18 or the early hours of August 19, 2006. A lengthy homicide investigation lasting nearly two years culminated in June 2008 when the Applicant and two others, Kayem and Ali Abdul-Hussein (“Abdul-Hussein”) were charged with the first degree murder of Zalal.
[2] Abdul-Hussein pled guilty to being an accessory after the fact. Kayem was acquitted and the Applicant was convicted of first degree murder in the first trial. On appeal, a new trial was ordered for the Applicant. The Applicant’s new trial is scheduled to proceed on September 19, 2016.
[3] The Crown seeks to introduce the Applicant’s call detail records of two cell phones bearing numbers (613) 325-4093 and (613) 263-2396. The Applicant is believed to have used these cell phones for the period of August 18-19, 2006.
[4] The records for the phone number (613) 325-4093 were obtained from Telus Communication Company (“Telus”) on August 23, 2006. The records for the phone number (613) 263-2396 were obtained from Rogers Communications Inc. (“Rogers”) on September 1, 2006 pursuant to two search warrants.
[5] The Crown also seeks to introduce various graphs, maps, and tables that are based in part on data contained in the Applicant’s call detail records. These graphs, maps, and tables purport to demonstrate: 1) the frequency of phone communications between the Applicant and Mahmoud Kayem (“Kayem”) on the evening of August 18, 2006, 2) a chronology of phone communications between various cellphones including that of the Applicant, as well as 3) the Applicant’s alleged location at various points in time on August 18-19, 2006, based on cell tower information.
[6] It is the position of the Applicant that absent valid warrants, the Applicant’s call detail records were obtained without lawful authority and in violation of his rights under s. 8 of the Charter. The Applicant seeks to have the call detail records excluded from evidence pursuant to s. 24(2) of the Charter, along with any graphs, maps, or tables that reference data extracted from those records.
[7] Zalal had been released from the Ottawa Carlton Detention Centre the morning of August 18, 2006. Later that day or early the following morning, Zalal was shot in the back of the head and his body was dumped into a rural area near Ottawa.
[8] On August 23, 2006, four days after commencing the investigation into the death of Zalal, the Ottawa Police Services obtained a search warrant for phone records relating to the Applicant’s cell phone, (613) 325-4093.
[9] On August 30, 2006, Ottawa Police Services obtained a search warrant for phone records relating to the Applicant’s cell phone (613) 263-2369 in addition to phone records of other numbers that are not relevant in this Application.
[10] The records include information about calls made to or from the cellphone, such as: date, time, duration, carrier, calling number, called number, dialed digits, type of call (incoming or outgoing), switch used, the “cell ID” of the cell tower which serviced the call, the cell tower’s “site ID”, cell tower’s “site name” (the nearest intersection), and cell tower’s site address.
[11] The Applicant seeks to have both search warrants quashed on the basis that:
a) the grounds listed in the two Informations to Obtain (the “ITO’s”) were both inaccurate and insufficient to grant the warrants.
b) the affiant did not have reasonable grounds to believe that the phone records would provide evidence with respect to the commission of the offence; and,
c) the police failed to file a Report to Justice as required under s. 489.1 of the Criminal Code.
[12] The Crown asserts that the search warrants on Telus and Rogers were lawfully obtained and the Defence has not met the onus of establishing a breach of s. 8 of the Charter because:
a) any inaccuracies in the ITO were made in good faith. The inaccuracies themselves are not material and in most instances are corrected by other information included in the ITO;
b) When the errors are excised from the ITO, there remains a sufficient basis upon which the warrant could have issued;
c) The affiant had reasonable grounds to believe that the phone records would provide some evidence of the victim’s movements from the time Zalal was released from prison on August 18, 2006 until his death later that night or early August 19, 2006;
d) A return to a Justice was belatedly made shortly prior to this Application for the Telus search warrant. Even if the failure to complete the return in a timely fashion amounts to a s. 8 Charter breach it should not result in the exclusion of evidence under s. 24(2) of the Charter.
Background of Investigation
[13] The Ottawa Police Service was notified of the death of Zalal on August 19, 2006. A team of investigators from the Major Crimes Branch was assembled to investigate his murder led by Sergeant Michael Hudson.
[14] Detective Krista Hill, a member of the Guns and Gangs unit of the Ottawa Police Service was assigned to assist the Major Crime Branch with the investigation into the death of Zalal. Prior to this investigation, Detective Hill had dealings with the Applicant in other criminal matters.
[15] On August 22, 2006 Detective Hill was assigned the task of interviewing the Applicant as part of the investigation into the murder due to information the police had received from an informant that linked the Applicant to Zalal.
[16] Coincidentally, Detective Hill received two voice mail messages from the Applicant the same day seeking the return of his passport that had been seized following his arrest in an unrelated 2005 matter. The phone number he supplied and to which she returned his calls was (613) 325-4093. She had also contacted him on other occasions on the cell phone number (613) 263-2369.
[17] The Applicant initially told Detective Hill that he had no information to provide to her about Zalal, and then volunteered information about his contact with Zalal on the day of his death which included:
a) On Friday, August 18, 2016, at approximately 2:00 pm, he picked up Zalal and his two associates “Birdie” (Burhan Hassan) and “Chin” (Abdi Abdullahi) at Birdie and Chin’s house in Vanier;
b) He drove Zalal, Birdie, and Chin to a clothing store called Harlem World on Montreal Road in Ottawa where they purchased T-shirts;
c) He drove them all back to Birdie and Chin’s house and dropped the three of them off;
d) He spoke to Bird around 6:00 pm, at which time Zalal was still with Birdie at Bird’s place;
e) He had made arrangements to meet with Zalal, Birdie and Chin at a bar called the Pink Panther later that evening. However, he was taking his wife to the Super Ex at Lansdowne Park first;
f) He and his wife went to the Super Ex at 8:00 pm. While there, he spoke to Birdie on the phone once again. He could not recall if Zalal was still with Birdie at that point; and
g) He did not go to the Pink Panther, and told Detective Hill that he went to a bar called Cosmo’s in Gatineau, Quebec with his wife.
[18] The Applicant refused Detective Hill’s request to attend the police station to be interviewed and claimed he had no other information to provide.
[19] Detective Hill relayed the contents of the conversation and her corresponding notes to Sergeant Bruce Pirt, the designated affiant for the purposes of obtaining search warrants in the Zalal investigation.
[20] On August 23, 2006, Sergeant Bruce Pirt swore and filed an Information To Obtain (“ITO”) a search warrant pursuant to s. 487 of the Criminal Code. The Ottawa Police sought information from Telus with respect to a cellphone bearing the number (613) 325-4093, believed to be used by the Applicant for the period of August 18-19, 2006.
[21] In the same ITO, the police also sought the same material with respect to the cellphone ((613) 818-2735) of a man named Hafta Mikail, who told the police in an interview that he had spoken with Zalal on the phone around 4:00pm on August 18, 2006.
[22] On August 30, 2006, Sergeant Pirt swore and filed another ITO also pursuant to s. 487 of the Criminal Code. The Ottawa Police sought information from Rogers with respect to cellphones bearing the numbers (613) 263-2369 and (613) 265-5538, believed to be used by the Applicant for the period of August 18-19, 2006.
[23] The two ITO’s contained the same information and conclusions with the exception that the ITO sworn on August 30, 2006 included some additional information obtained between August 23 and 30th from confidential informants and through tips. The August 30 ITO also identified that the August 23, 2006 warrant had been obtained for the Applicant’s cellphone operated through Telus.
[24] The information sought by the police with respect to the Applicant’s cell phone numbers included the following:
a) Subscriber and billing information;
b) Call Detail Records: “Electronic copies of the cellular telephone records (commonly referred to as detailed-billing records and/or telephone tolls including reverse tolls)”, which is intended to mean “all detailed records, including date, time of call, number dialed, number dialing in, duration of call, time call ended, and cellular tower used during the calls;”
c) Electronic copies of the cell site location information; and
d) All incoming and outgoing text messages and their respective contents.
[25] In the ITO’s, Sergeant Pirt swore that the Applicant admitted to being in contact with the victim on the night of August 18, 2006, and conversing with the victim using the cell phone (613) 325-4093. The Applicant alleges that these assertions had no evidentiary basis: not in the conversation between the Applicant and Detective Hill as summarized in the ITO, and not in any other evidence available to the police.
[26] His Worship, Justice of the Peace Bartraw granted the search warrant on August 23, 2006. On the same date the Ottawa Police faxed the warrant to Telus. Telus sent the records back electronically on the same date.
[27] His Worship, Justice of the Peace Mackey granted the search warrant on August 30, 2006. On the same date the Ottawa Police faxed the warrant to Rogers. Rogers sent the records for the number (613) 236-2369 back electronically on September 1, 2006. There were no records for cellphone number (613) 265-5538.
[28] On June 14, 2016, the Report to Justice with respect to the search warrant executed at Telus was prepared and produced. At the time this motion was heard on June 20, 2016, no Report to Justice had been completed or filed in relation to the search warrant executed at Rogers as is required under s. 489.1 of the Criminal Code.
[29] The evidence set out in the ITO’s shows that the investigators had ascertained the cell phone numbers of various phones being used by associates of Zalal, including Alissa Smith, Hafta Mikhail, Nawaf Al-Enzi, Burhan Hassan (“Birdie”) and Abdi Abdullahi (“Chin”).
[30] The two ITO’s and search warrants that are the subject of this Application were two of a total of four search warrants for call detail records obtained between the discovery of Zalal’s body on August 19, 2006 and the Rogers search warrant obtained on August 30, 2006. These four warrants covered nine different cell phone numbers. In each of the ITO’s, the police indicated that it was their belief that the call detail records of cell phones of Zalal and those with whom he had been in contact on August 18 until his death could provide important evidence.
[31] The information set out in the ITO’s demonstrates that the police was making efforts to track the movements of Zalal from the time of his release from prison until his murder.
[32] At the time the warrants were sought for the Applicant’s call detail records of his known cell phone numbers, the Ottawa police knew that Zalal had been released from prison on the morning of August 18, had gone home to his residence on Marier Street in Ottawa that he shared with Alyssa Smith-Banks, had left that home in the afternoon and been murdered overnight. The police did not know where, exactly how or by whom Zalal had been murdered. The police were seeking to retrace the movements of Zalal leading up to his murder.
[33] In both ITO’s, Sergeant Pirt informed the Justice of the Peace that he was seeking information from the cell phone numbers used by the Applicant based on the belief that the Applicant’s call detail reports would assist in the investigation of Zalal’s homicide:
“by tracking the movements of Nawaf AL-ENZI (the Applicant) on the night of August 18, 2006. As the investigative team is aware that Nawaf AL-ENZI had spent some time on the 18th of August with the victim, it is possible that the analysis of his cellular records will confirm other associates as well as confirming movements of Mohammed ZALAL after he left the residence of Alissa SMITH at [approximately] 14:30 hours on the 18th of August 2006.” [1]
General Principles: Warrant Review
[34] The search warrants under review in this application were obtained pursuant to s. 487(1) of the Criminal Code which provides that:
A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place,
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
may at any time issue a warrant authorizing a peace officer ….
(d) to search the building receptacle or place for any such thing and to seize it and
(e) subject to any other act of Parliament to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with 489.1.
[35] The justice who authorizes a search warrant must be satisfied that there are reasonable grounds to believe that an offence has or will be committed and that evidence concerning that offence will be found at the place to be searched.
[36] The role of the judge reviewing a search warrant is more limited. The reviewing judge does not reconsider the issue of reasonable grounds and does not substitute his or her view for that of the authorizing justice. If, based on the record which was before the authorizing justice, the reviewing judge concludes that the authorizing justice could have granted the warrant then the reviewing judge should not interfere.
[37] The standard of review is set out in two of the leading cases, R. v. Garofoli, [1990] 2 S.C.R. 1421 and R. v. Araujo, 2000 SCC 65. The Ontario Court of Appeal recently summarized the standard of review on challenges to admissibility of evidence seized during a search in the case of R. v. Sadikov, 2014 ONCA 72.
[38] A warrant review begins from a premise of presumed validity. The party seeking to displace this presumption of validity bears the onus of satisfying the Court that the warrant should not have been issued. “The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application.” Sadikov, at para 84.
[39] Sadikov also states:
“The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could - not would - have issued.” [references omitted] Sadikov, at para 84.
[40] In the case CanadianOxy Chemicals Ltd v Canada (Attorney General), [1999] 1 S.C.R. 743, the Supreme Court of Canada described the purpose of the search warrant provisions in the Criminal Code and their ordinary meaning. The Court held that “evidence with respect to the commission of the offence”, pursuant to section 487(1), encompasses “all materials that might shed light on the circumstances of an event which appears to constitute an offence” (CanadianOxy Chemicals, at para 15) The scope of a warrant includes “anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability” and is intended to enable the gathering of evidence “relevant to events which may have given rise to criminal liability.” The powers under section 487(1) are meant to promote and prompt a comprehensive investigation of potential offences. The purpose of the section is to allow investigators to “unearth and preserve as much relevant evidence as possible”. (CanadianOxy Chemicals, at paras 15, 17, 19 - 22).
[41] The Court in CanadianOxy Chemicals acknowledged that search warrants are highly intrusive and that the broad powers of 487(1) “do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations” (at para 29). The Court noted that this privacy interest was “particularly true with respect to personnel records which may contain a great deal of highly personal information unrelated to the investigation at hand.” (at para 29).
[42] When, on review, some of the information contained in the ITO is found to be erroneous, the reviewing justice excludes that erroneous information and the remaining information is examined by the reviewing judge to ascertain if the warrant could still have issued (R v Araujo, at para 51; R v Sadikov, at para 85).
[43] Courts have distinguished between erroneous information that was deliberately included in an ITO and that which was included in good faith. The Supreme Court of Canada in Araujo concluded that:
(…) in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information. (R v Araujo, at para 58).
[44] If, based on the record which was before the authorizing justice as amplified on the review, the reviewing judge concludes that the authorizing justice could have granted the authorization, he or she should not interfere. “The existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.” (R v Garofoli, at p. 1452).
Defence Submissions on Breach of s. 8 of the Charter
[45] Counsel for the Defence noted that the cellphone and mobile device system has become a surveillance tracking system for the police. He argued that the electronic data accumulated incidental to a citizen's bona fide routine use of telecommunications has become an evidentiary windfall for the police.
[46] It was his position that such tracking data deserves considerable respect for the privacy interests involved because they reveal a great deal about with whom a user chooses to communicate, when, and his/her general whereabouts throughout the day. (R. v. MacInnis, [2007] O.J. No. 5270, at paras 28-29; R. v. MacInnis, [2007] O.J. No. 2930 at paras 46, 50).
[47] In the context of a person’s right to privacy, the Defence argued that certain errors in the ITO’s contained the potential for a serious misinterpretation by the issuing justices. The Defence’s concern pertained to the description of the Applicant as “being with ZALAL during part of the night” or “in contact with the victim on the night” of August 18, 2006.
[48] In paragraphs 4 and 63 of the ITO for the Telus warrant, and paragraphs 4 and 84 of the ITO for the Rogers warrant, Sergeant Pirt stated that the Applicant admitted to being with Zalal during part of the night of August 18, 2006 and to conversing with Zalal on the Applicant’s cellphone bearing the number (613) 325-4093. However, the Applicant had been with Zalal in the afternoon and had conversed with Birdie on his cell phone, who purported to be with Zalal at 6:00 pm.
[49] The Defence alleged that in addition to these errors in the ITO’s, Sergeant Pirt did not have reasonable grounds to believe that the Applicant’s call detail records would afford evidence with respect to the commission of the murder as required under s. 487(1)(b) of the Criminal Code and as asserted in the ITO. Instead, Sergeant Pirt stated that the investigators believed that the cell phone records would assist in the investigation with respect to the Applicant’s movement, and may assist in confirming the movements of Zalal and other associates. The Defence argued that this standard falls well below the reasonable grounds required under s. 487 of the Criminal Code.
[50] The Defence argued that a review of the warrant demonstrates that “there was no reliable evidence that might reasonably be believed on the basis of which the authorization [or warrant] could have issued” (R v. Araujo, at para 54). According to the Defence, the ITO did not raise a suspicion, let alone reasonable grounds to believe, that the Applicant had any involvement in the commission of the offence, that he was with the victim around the time that the offence was committed, or that the phone records would otherwise afford evidence with respect to the homicide.
[51] The Defence noted that Justice Hill wrote that mere conjecture, suspicion, hypothesis or fishing expeditions fall short of the minimally acceptable standard (R. v. Sanchez, [1994] O.J. No. 2260, at paras 28- 30). The Defence claimed that as in Sanchez, the ITO’s prepared in support of the search warrants in this case were the sort of fishing expedition our Courts have spoken against in order to protect the public’s privacy interests:
Section 487(1) of the Code requires reasonable grounds as the standard of persuasion to support issuance of a search warrant. Judicially interpreted, the standard is one of credibly based probability: Baron v. Canada, [1993] 1 S.C.R. 416 [cites omitted].
Mere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case: R. v. Debot; Illinois v. Gates; Texas v. Brown [cites omitted].
The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted. (Sanchez, at paras 28-30).
[52] The Defence argued that there was nothing in the ITO’s that suggested that the Applicant’s call detail records were relevant to the homicide under investigation or that the call detail records would assist in determining how/why the offence was committed or who was culpable for the offence. In addition, the Defence submitted that nothing in the ITO’s suggested how tracking data in the form of cell tower locations would afford evidence in connection with the commission of the offence or assist in discovering the culpable party. The Defence argued that the police was engaged in a fishing expedition and in doing so were granted unfettered access to the public’s private information.
[53] For the Defence, the fact that the Applicant was briefly in contact with Zalal sometime during the afternoon on the day before Zalal’s body was found, was insufficient to provide the necessary grounds to intrude upon the Applicant’s call detail records.
[54] The Defence also noted that until shortly before this application was heard, the police had failed to file the Report to Justice, as required under s. 489.1 of the Criminal Code. The Defence argued that this failure on the part of the police constitutes a breach of the Applicant’s rights under s. 8 of the Charter and warrants a quashing of the warrant regardless of the other alleged breaches of s. 8.
[55] The Defence did acknowledge that this issue has now been settled by the Ontario Court of Appeal in R. v. Garcia-Machado, 2015 ONCA 569, and United States of America v. Mathurin, 2015 ONCA 581, in which the Court stated that such a breach “had no real impact on the respondent’s Charter-protected interests. And as the trial judge determined, society’s interest in the adjudication on the merits favours admission of the evidence…” (Garcia-Machado, at para 68).
Crown’s position re s. 8 of the Charter
[56] Crown counsel noted that the two errors complained of by the Defence related to the difference between contact between the Applicant and Zalal in the afternoon of August 18 and contact during the night of August 18. The contact in the afternoon took place after 2pm, which was during the last few hours of Zalal’s life. The Crown argued that all information obtained as to Zalal’s movements and contacts over this time frame would constitute evidence with respect to the homicide. It was this information that the affiant of the ITO’s was putting before the authorizing justices.
[57] The Crown argued that the Applicant was the one who informed Detective Hill that he had been in contact with Zalal on August 18, 2006. The details of that conversation were accurately set out in the ITO. The Applicant informed Detective Hill that he had been with Zalal on the afternoon of the 18 and had been in contact with Birdie by telephone later in the day on two occasions. On the first call, Birdie informed the Applicant that Zalal was with him and the Applicant could not recall if Birdie told him whether or not Zalal was with Birdie during the second call.
[58] The Crown conceded that the use of the word night when describing when the Applicant had been with Zalal on August 18 in two locations in the ITO’s was an error; as was the inference that the Applicant had spoken to Zalal on the phone the evening of the 18th. The Crown contended, however, that the correct information provided by the Applicant to Detective Hill (that the Applicant had been with Zalal in the afternoon of August 18 and had spoken to Birdie who was with Zalal at 6:00 pm) was accurately set out in other paragraphs in the ITO’s.
[59] Crown counsel argued that the Defence’s assertion that the issuing justices were misled by the inaccuracies in the face of the accurate account contained elsewhere in the ITO’s is not plausible. It was the Crown’s submission that this argument suggests that only movements or contacts of Zalal during the night of August 18 would afford evidence of the murder rather than the movements or contacts with Zalal from the time he was released from the Detention Centre that morning until his body was discovered on the 19. The Crown argued that the Ottawa police clearly took the position that all information from the call detail records of the Applicant (and others) from the time Zalal left prison to the time his body was discovered was relevant information to their investigation. The Crown explained that it would assist them in tracking Zalal’s movements as well as those of his known associates. The Crown argued that there were reasonable grounds to believe this was the case based upon the evidence they had accumulated to that point.
[60] The Crown argued that the call detail records would allow the police to track where the Applicant went while he was with Zalal, and to confirm or contradict his statement to Detective Hill. The Applicant had informed Detective Hill that he had made arrangements to meet Zalal later that evening. Thus, evidence of the Applicant’s movements, notwithstanding his denial of actually meeting with Zalal, could be expected to afford evidence in relation to the investigation, even if that evidence simply confirmed the Applicant’s account that he went to the Cosmos bar in Gatineau with his wife.
[61] The Crown submitted that obtaining call detail records in this circumstance was neither an unacceptable breach of the Applicant’s privacy nor the fishing expedition alleged by the Defence. It was a proper exercise of the police using the authority of a search warrant to gather evidence “that might shed light on the circumstances of an event which appears to constitute an offence. (CanadianOxy Chemicals, at para 15).
[62] The Crown acknowledged that the failure by the police to complete the Report to the issuing Justice as required by s. 489.1 of the Criminal Code constituted a technical breach of the Applicant’s s. 8 Charter rights. The Crown submitted that the law has been clarified that this sort of technical breach is not sufficient to quash a warrant, particularly in a homicide case.
After Excision Is There Evidence Upon Which a Search Warrant Could Issue?
[63] I do not accept the Defence submission that the errors in the ITO’s in referring to the period of time the Applicant was in contact with Zalal as being during the night contained the potential for a serious misinterpretation by the issuing justices. This is particularly so in light of the accuracy of the information the Applicant provided to the police regarding the Applicant’s telephone discussion with Detective Hill, as set out in the ITO’s.
[64] The test on review, as articulated in R v Araujo is to “determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue" (at para 57).
[65] Once the word night is excised from the ITO’s in the two paragraphs where it is found, the remaining information in the ITO’s comprise sufficient reliable evidence that the Applicant had informed the police that he was with Zalal during the afternoon of August 18, which was during the last few hours of Zalal’s life.
[66] The ITOs clearly informed the issuing justices that the timeline of the call detail records they were seeking was discrete, spanning less than 24 hours, from Zalal’s release from jail to his death.
[67] I find that an issuing justice would accept that evidence of where Zalal went and who he had contact with during the few hours of freedom before he was murdered, was evidence related to the commission of the offence.
[68] I accept the testimony of Sergeant Pirt that the errors were made in good faith. I do not find however that it is necessary to amplify the record due to these errors because there remains sufficient reliable material upon which the issuing justices could have issued the warrant after excising the erroneous information.
Were There Reasonable Grounds to Believe the Applicant’s Call Detail Records Would Afford Evidence?
[69] I do not accept the Defence arguments that the information sought in the ITO’s amounted to an impermissible fishing expedition. The police clearly set out their rationale for seeking the cell detail records of the Applicant. As I have already found, they were attempting to reconstruct the last hours of Zalal’s life in order to gather evidence into his murder. When these ITO’s were drafted and submitted, the precise time, location and person responsible for the shooting were unknown.
[70] The ITO’s provided the issuing justice with a variety of details in the early days of the investigation. There was nothing unreasonable about the police believing that all information as to Zalal’s movements that day would shed light on and be rationally connected to the murder. The Applicant was a known associate of Zalal who admitted to the police that he had spent time with Zalal on the day of his death.
[71] The standard imposed by s. 487.1 of the Criminal Code requires reasonable grounds to believe the information will afford evidence of the commission of the offence. In CanadianOxy Chemicals, the Supreme Court held “evidence with respect to the commission of the offence” encompasses “anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability” and is intended to enable the gathering of evidence “relevant to events which may have given rise to criminal liability” (at paras 15, 22).
[72] Section 487.1 does not require that the justice be satisfied beyond a reasonable doubt, nor to the lower standard of there being a prima facie case. The issuing justice must have been satisfied that reasonable grounds existed to believe that the information sought would afford evidence of the commission of the offence. The desire of the police to obtain evidence of whom the victim had contact with and where he went during the last hours of his life was information that could afford evidence of the murder that took place later that same day. I find therefore that the information sought in the ITO’s was “relevant and rationally connected” to the murder.
[73] I therefore do not find that there was a breach of the Applicant’s s. 8 Charter rights when the police obtained the Applicant’s call detail records.
Does the Failure to File the Report to Justice Support the Quashing of the Warrants?
[74] It is unfortunate that the police failed to file the s. 489.1 Report to a Justice in a timely fashion, or at all before the hearing of this application. That failure demonstrates a level of carelessness on the part of the investigation team. More seriously, based upon the testimony of the lead investigator, there appears to have been a systemic problem within the Ottawa Police Service during the years before and during the investigation into this homicide.
[75] The evidence did support the fact that the Ottawa Police Service has rectified its practices in tracking the filing of these Reports and as such, the issue appears to have been resolved going forward.
[76] Notwithstanding the efforts to rectify the reporting problems, the failure to file these reports is a breach of the law. Section 489.1(1) requires a peace officer to report to a justice. As our Court of Appeal found: “The recording of the items seized, the right to notice and the right to apply for return of things seized confer important protections on people whose items the state holds in detention. Compliance with s. 489.1(1) is the gateway to all of these protections” (Garcia-Machado, at para 55).
[77] The filing of one of the reports in June 2016, almost 10 years after the warrant was obtained, and the promise to file the report for the second warrant prior to trial cannot in any fashion have met the obligation under s. 489.1(1)(b) to report to a justice as soon as practicable. As such I do find that this failure to file the reports constitutes a breach of the Applicant’s s. 8 Charter rights.
[78] Notwithstanding this finding, I am not prepared to exclude the evidence obtained through these warrants on the basis of this breach.
[79] As in Garcia-Machado, the initial search was authorized by a warrant where a justice of the peace had already balanced the privacy interests of the Applicant against the interest of the state in investigating the homicide and the fact that the information obtained by the search warrant was the information that was specifically sought in that warrant. Finally, had the Report to a Justice been completed as soon as it was practicable to do so, there is little doubt that the Justice would have ordered detention of the evidence obtained.
[80] As in Garcia-Machado, I find that the breach of the requirement to file the report had no real impact on the Applicant’s Charter-protected interests. Society’s interest in the adjudication on the merits favours admission of the evidence, particularly when the charge is one of the most serious crimes in our criminal justice system (R v Grant, 2009 SCC 32, at paras 79-82).
[81] The Applicant’s application to exclude the call detail records under s. 24(2) of the Charter is therefore dismissed.
Madam Justice B. R. Warkentin
Released: August 12, 2016
COURT FILE NO.: 08-11565 DATE: 2016-08-12
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION UNTIL THE END OF TRIAL PURSUANT TO SECTION 517 OF THE CRIMINAL CODE
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant – and – NAWAF AL-ENZI Respondent REASONS ON APPLICATION UNDER s. 8 and 24(2) of the CHARTER RE: CALL DETAIL RECORDS APPLICATION Warkentin J.
Released: August 12, 2016