Court File and Parties

Court File No.: 08-11565 Date: 2016-08-17 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Nawaf Al-Enzi, Applicant

Before: Madam Justice B. R. Warkentin

Counsel: James Cavanagh, Jason Neubauer and Louise Tansey, for the Crown/Respondent Alan D. Gold and Etai Hilzenrat, for the Applicant

Heard: June 28 and 29, 2016, at Ottawa, Ontario

Reasons on Application Under s. 8 and 24(2) of the Charter re: Intercepted Communications Application

[1] The Applicant stands charged with committing the murder of Mohamed 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, Mahmoud Kayem (“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 Respondent/Crown seeks to introduce transcripts and/or recordings of 104 private communications pursuant to six wire-tap Authorizations that were intercepted by the police during the course of the Zalal homicide investigation. The six Authorizations were granted under Part VI of the Criminal Code on August 10, 2007, October 12, 2007, December 21, 2007, February 15, 2008, March 18, 2008, and April 18, 2008 (Authorizations #1 to #6, respectively).

[4] The Applicant seeks an Order: a) Declaring that Authorizations #1 to #6 are invalid; b) Declaring that the Applicant’s private communications were intercepted without lawful judicial authorization, in violation of his right to be secure against unreasonable search and seizure, as protected under section 8 of the Charter; and c) Excluding any direct or derivative evidence obtained as a result of Authorizations #1 to #6 pursuant to section 24(2) of the Charter.

[5] The Applicant seeks to have Authorizations #1 to #6 excluded from evidence in the trial on the following grounds: a) That the affiant Sergeant Bruce Pirt did not make full, frank, and fair disclosure in the Information to Obtain (ITO) #1 as a result of gross negligence in preparation of the ITO, most notably in connection with witnesses Ramin Khaleyi and Shadra Morales. b) That the information contained in ITO#1 sourced to Khaleyi or Morales should be excised on review of Authorization #1, or, in the alternative, given no weight. c) That in view of the affiant’s grossly negligent omissions and inaccurate representations: i) The ITO does not permit a proper judicial assessment of the credibility of Khaleyi and Morales or the reliability of their information; ii) The authorizing justice was not informed of significant issues, which establish that Khaleyi and Morales were not credible witnesses, and that their information was unreliable and insufficiently corroborated. d) That there is a lack of reliable evidence in ITO #1 connecting the Applicant to the alleged offence. e) That there were insufficient grounds to grant Authorization #1. ITO #1 does not establish reasonable and probable grounds to believe that interception of the Applicant’s private communications would afford evidence of the alleged offence. f) That ITO#1 does not establish investigative necessity to intercept the Applicant’s private communications. There existed reasonable alternative methods of investigation, such as: i) Searching for the murder weapon in the sewers/basins on Marlin Private, where the police believed it to be; and ii) Searching the residence of a Mr. Martin Peplinski, in Ottawa, where the police believed Zalal had been shot; g) That Authorizations #2 to #6 were granted by relying improperly obtained private communications and therefore all six Authorizations (#1 through #6) should be quashed. h) That the private communications, which the Crown seeks to adduce, were intercepted without valid juridical authorization, in violation of the Applicant’s right to be secure against unreasonable search and seizure, as protected under section 8 of the Charter. i) That in balancing the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the Applicant, and society’s interests in adjudication on the merits, the admission of the intercepted private communications would bring the administration of justice into disrepute. j) That any direct and derivative evidence obtained as a result to Authorizations #1 to #6 should be excluded pursuant to section 24(2) of the Charter.

[6] The Crown noted that the evidence summarized by Sergeant Pirt about Khaleyi’s various statements to the police was accurate. In other words, Khaleyi had told the police all the things that Sergeant Pirt attributed to him. The errors occurred with respect to when Khaleyi is alleged to have made the statements as set out by Sergeant Pirt in ITO#1. The Crown submitted that these errors may be corrected by amplification and that there is nothing in ITO #1 that should be excised. The Crown opposes the Applicant’s request to have all the evidence obtained through these wiretaps excluded under s. 24(2) of the Charter.

History of the Investigation and Intercepts

[7] By August, 2007, close to one year after the murder of Zalal and after an extensive police investigation involving a number of police officers, numerous witness interviews, search warrants for cell phone call detail records and DNA analysis of two cigarette butts located at the scene where Zalal’s body was discovered, the police had not been able to establish a clear motive for the murder.

[8] The DNA analysis of the two cigarette butts was completed on July 20, 2007. The analysis confirmed the DNA on one of the butts was Zalal’s and the other was that of Kayem. The police believed this evidence placed Kayem at the scene where Zalal’s body was dumped after he had been shot. After the DNA analysis confirmed Kayem’s possible involvement in the murder, the police sought to intercept communications.

[9] On August 9, 2007, Sergeant Bruce Pirt of the Ottawa Police Service swore an affidavit in support of an authorization under sections 185 and 186 of the Criminal Code of Canada to intercept the private communications of three individuals: the Applicant, Kayem and Abdul-Hussein, all of whom investigators believed were involved in Zalal’s murder.

[10] The Applicant, Kayem and Abdul-Hussein were known associates of Zalal. All four had belonged to a street gang known as The Ledbury Banff Crips (LBC).

[11] ITO#1 contained a 110 page affidavit together with a number of Appendices detailing the evidence the police had accumulated when the affidavit was sworn by Sergeant Pirt on August 9, 2007.

[12] In ITO#1, Sergeant Pirt stated “I believe that, at this stage, all traditional investigative techniques have been pursued with reasonable diligence.” He also stated “I further believe that the interception of their private communications would provide information in respect of the murder and may even possibly lead to the identification of the other persons involved in the murder and disposal of the body of Mohamed ZALAL.” (ITO#1, at paras 13, 14).

[13] It was the plan of the police to use carefully orchestrated prompts designed to motivate the Applicant, Kayem and Abdul-Hussein to discuss their knowledge of and involvement in the murder amongst themselves and others (ITO#1, at para 15). The police had evidence that, on the night of the murder, the cell phones of the Applicant and Kayem were in repeated contact around the time Zalal was last seen. The police also had evidence that Kayem’s phone was used near a cell phone tower close to where Zalal’s body was later discovered (ITO#1, at paras 150, 184).

[14] After reviewing ITO#1 and the draft Authorization, Justice A. de L. Panet granted the Authorization on August 10, 2007 (“Authorization #1”).

[15] Among other details of the investigation, ITO#1 contained summaries of interviews with Khaleyi and Morales. Khaleyi first provided a statement to the police on February 7, 2007 in the role of a confidential informant, but in May 2007 his status was changed to that of a witness.

[16] ITO#1 described some, but not all, of the interviews with Khaleyi. The information about Khaleyi also set out his age (19 years), criminal record and his motivation for providing information to the police.

[17] Khaleyi informed the police that the Applicant had admitted to him that he was the one who shot Zalal and that Kayem and Abdul-Hussein had disposed of Zalal’s body.

[18] Morales, who was 15 years old at the time and Khaleyi’s girlfriend, provided a statement to the police on May 7, 2007. She informed the police that she had been present when the Applicant had admitted to shooting Zalal. She claimed that she was eavesdropping behind a door when the Applicant confessed to Khaleyi that he had shot Zalal.

Argument re: The Statements of Ramin Khaleyi and Shadra Morales

[19] The Applicant submitted that the various statements Khaleyi provided to the police were at times contradictory and inconsistent resulting in a witness who lacked credibility and was unreliable. The Applicant argued that there were significant errors and omissions in ITO#1 regarding Khaleyi’s statements such that the many contradictions and inconsistencies in his statements were not identified, giving a false impression to the issuing justice regarding the soundness of the information the police had received from Khaleyi.

[20] ITO#1 purports to summarize the Khaleyi interviews with Sergeant Hudson, the lead investigator; Detective Monette and other police officers involved in the investigation on February 7 and 11, April 20, May 3 and 4, 2007. ITO#1 contains no reference to police interviews with Khaleyi that occurred on April 24 and May 17, 2007.

[21] The Defense concedes in this application that the information as it pertained to Khaleyi’s interviews with the police between February 7 and May 4, 2007 that Sergeant Pirt produced in ITO#1 came from the May 4, 2007 witness summary prepared by Detective Monette. In other words, Sergeant Pirt either did not review or did not compare the actual Khaleyi interviews that took place between February 7 and May 4 to ascertain whether or not the summary of the interviews prior to May 4 was accurate.

[22] Khaleyi’s status as a confidential informant changed on May 4, 2007 because Khaleyi had been the victim of a robbery and abduction on May 2, 2007 that he attributed to the Applicant. During that abduction, Khaleyi had been tied to a chair, beaten and robbed of some personal items. Khaleyi claimed that the individuals who abducted and robbed him were the Applicant’s gang. After this event, Khaleyi decided to become a witness rather than a confidential informant.

[23] In their written and oral submissions, the Applicant set out in significant detail various errors they allege were made by Sergeant Pirt in drafting ITO#1 due to his apparent failure to verify the statement summary of May 4 with the prior interviews that occurred. In brief, the discrepancies alleged between the information provided by Khaleyi in his interviews and the information in ITO#1 may be summarized as follows: a) Khaleyi had animosity towards the Applicant as a result of the abduction and robbery that he attributed to the Applicant and his gang. The ITO did not sufficiently describe the animosity as a motivation for providing evidence against the Applicant. b) Khaleyi came forward to the police in February 2007 while under charges for breaching an undertaking. The charges against him were dropped on June 19, 2007 after his sworn statement of May 4, 2007. ITO#1 did not inform the issuing justice that the charges were dropped. c) Khaleyi was in financial distress and a possible reward was discussed in exchange for his evidence, although no reward was ever provided to him. While the issuing justice was informed that Khaleyi was seeking a financial reward in exchange for his evidence as a confidential informant, it was not sufficiently described as a motive that affected his credibility and reliability as a witness. d) Khaleyi identified the Applicant, Kayem and Abdul-Hussein as the perpetrators of the murder. He claimed that the Applicant told him that Zalal was tied up, hit with a crowbar and then shot and the gun, crowbars and masks used by the assailants were later thrown into the sewer at Marlin Private. The information from Khaleyi about Zalal having been tied up and hit with a crowbar and the fact that these items were deposited into the sewer was not put before the issuing justice. The forensic evidence did not support the fact that Zalal had been tied up and hit with an object such as a crowbar. The evidence only supported a single gun-shot to the back of the head. e) ITO#1 indicated that Khaleyi had been told where, but could not identify the home/location where the murder was alleged to have occurred. However, in the May 17, 2007 interview, which was not included in ITO#1, Khaleyi had identified the resident of the house where the murder was alleged to have happened as being the home of a Martin Peplinski and the police had located the relevant address. The police had not followed up on this evidence when ITO#1 was prepared and the issuing justice was not informed about this possible evidence. f) Khaleyi’s evidence in his first statement to the police on February 7, 2007 included information about three separate conversations with the Applicant about the murder. ITO#1 did not accurately set out those separate conversations but rather summarized them as taken from the May 4 statement summary. That summary did not accurately reflect the February 7 interview and therefore the Applicant argued that the information in the ITO was incorrect. g) There was a discrepancy between the evidence of Khaleyi and Morales as to where Morales was when she overheard the Applicant confess to the murder. ITO#1 states that Morales was eavesdropping on the conversation whereas Khaleyi had stated that she was in the same room. This discrepancy was not provided to the issuing justice. h) The information in ITO#1 did not contain a sufficient summary of the various other discrepancies in Khaleyi’s statements to the police as they pertained to the different conversations he had with the Applicant about the murder.

[24] The Applicant argued that had the issuing justice been informed about the inconsistencies in Khaleyi’s evidence and the fact that the police had not followed up on some of the evidence they had (in particular searching the house and sewer where Khaleyi claimed he was told the murder had occurred and the weapon, crow bar and masks had been deposited), Authorization #1 would not have been granted.

[25] The Applicant submitted that Sergeant Pirt failed to make a full, frank and fair assessment of the credibility of Khaleyi in ITO#1. Had he done so, Khaleyi would have come across as an individual who lacked credibility and reliability and the issuing justice would have refused to grant Authorization #1.

[26] Because Applications #2 through #6 were premised on the information contained in Application #1, the Applicant’s position is that if Authorization #1 was invalid, then Authorizations #2 through #6 are also invalid and all six must be quashed.

[27] The Applicant also argued that the fact that the evidence in ITO#1 was supportive of the Authorizations granting a wiretap on Kayem’s phone is not sufficient grounds to have permitted the issuing justice to authorize a wiretap on the Applicant’s phone.

The Crown’s Position

[28] The Crown confirmed that some of the evidence supplied by Khaleyi, as summarized above, was not put before the issuing justice. The Crown’s position is that an affiant is not expected to include every detail from the police investigation and witness interviews.

[29] To the extent that there was contradictory evidence from Khaleyi that was not included in the ITO, Crown counsel submitted that even if it had been included, it would not have resulted in Authorization #1 being denied because there was sufficient evidence elsewhere including corroborating evidence in the ITO to support the application for Authorization #1.

[30] Crown counsel prepared a summary of all the other evidence corroborating the statements of Khaleyi. Crown counsel also noted that Khaleyi’s age, his criminal record and desire to receive financial compensation and a resolution to his outstanding criminal charges were clearly set out in ITO #1. Similarly, the animus that Khaleyi held for the Applicant after the beating and robbery was included as the basis for Khaleyi becoming a witness rather than a confidential informant.

[31] Crown counsel argued that the issuing justice would have been well aware that Khaleyi might have had a motive to provide the evidence; however, the fact that he decided to change his status from a confidential informant to a witness, strengthened rather than weakened the evidence of Khaleyi.

[32] Crown counsel also argued that the Applicant incorrectly engaged in a microscopic analysis of the information contained within the ITO and of what was not included in the ITO. In taking this approach, Crown counsel submitted that counsel for the Applicant proposed their own interpretations, or otherwise tested the information in the ITO against the standard of proof beyond a reasonable doubt, which is not the correct method of reviewing whether an authorization should have been granted.

[33] It was Crown counsel’s position that the correct analysis of the ITO should have been to focus on all of the information as a whole that was legitimately before the issuing justice and consider whether or not the judge could have issued the Authorization. To do otherwise invites the reviewing court to substitute its opinion for that of the issuing justice.

[34] Crown counsel noted that there was no allegation against Sergeant Pirt that he was deliberately attempting to mislead the issuing justice. Crown counsel agreed, as set out above, that Sergeant Pirt had misattributed the dates when some of the statements were made by Khaleyi when he used the May 4 statement summary to describe the interviews. Even if this amounted to the gross negligence the Applicant has alleged (which the Crown disputes), the dates may be corrected on amplification.

Legal Principles and Analysis

[35] As the judge reviewing the ITO, the standard I am to apply is whether or not the ITO’s contained sufficient reliable evidence that might reasonably be believed on the basis of which the issuing justice could have concluded that the conditions precedent required to be established had been met: R. v. Garofoli, [1990] 2 S.C.R. 1421, at paras. 55-6 (S.C.C.), at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 54; R v Sadikov, 2014 ONCA 72, [2014] O.J. No. 376, at para. 84; R v. Beauchamp, 2015 ONCA 260, [2015] O.J. No. 1939, at para. 87; R v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[36] I am entitled to draw reasonable inferences from the contents of the ITO. Whether an item of evidence in the ITO may support more than one inference, or even a contrary inference, is not part of that inquiry. The inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the authorization could have issued (Morelli, at para. 40; Sadikov, at para. 88).

[37] When there are inaccuracies and omissions in the ITO, they are not necessarily fatal to the question of whether or not the authorization could have issued. There must be more to establish that the conditions precedent required to be established had not been met and the issuing justice could not have issued the authorization: Garofoli, at p. 1452; Araujo, at para. 54; R. v. Pires; R v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30.

[38] It is not my role to substitute my decision for that of the issuing justice.

[39] Mr. Justice D. Watt, writing for the court in the recent case of R. v. Nero, 2016 ONCA 160, [2016] O.J. No. 1027 - at paras 114-120, summarized the law as it pertains to wiretap authorizations under s. 186(1) of the Criminal Code: Section 186(1) requires that two conditions precedent be met before the discretion to grant an authorization to intercept private communications may be granted by a judge of the superior court of criminal jurisdiction: a) that it would be in the best interests of the administration of justice to do so; and b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. For discussion purposes, the condition described in s. 186(1)(a) can be described as "probable cause" and that in s. 186(1)(b) as "investigative necessity". The probable cause requirement demands that the authorizing judge be satisfied by the supportive affidavit that there are reasonable and probable grounds to believe that: i) a specified crime, and "offence" as defined in s. 183(1) of the Criminal Code, has been or is being committed; and ii) the interception of the private communication sought will afford evidence of the, or an, offence for which authorization is sought: Garofoli, at p. 1451; R. v. Duarte, [1990] 1 S.C.R. 30, at p. 45; R. v. Mahal, 2012 ONCA 673, 292 C.C.C. (3d) 252, at paras. 68, 75; Beauchamp, at para. 91. The probable cause requirement and the capacity of the contents of the supportive affidavit to satisfy it involve a commonsense approach that takes into account the nature of the subject-matter investigators seek to acquire: future communications, not yet in existence, perhaps not even in contemplation at the time the authorization is sought or granted. These communications may never take place. But if they do, the likelihood of anything said affording evidence of a listed offence is enhanced by their probable participation in that offence. It is in that sense that interception of what they say will afford evidence of the offences. It is also important to keep in mind that the affidavit is required to establish a reasonably grounded belief in the commission of the offence and the collection of evidence about it, not proof beyond a reasonable doubt or a prima facie case of either. Under s. 186(1)(b), investigative necessity may be established where the affidavit demonstrates that other investigative procedures are unlikely to succeed. Interception of private communications is not an investigative tool of last resort. The second branch of investigative necessity is met where, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry: Araujo, at para. 29; Mahal, at para. 41; Beauchamp, at para. 95. Whether investigative necessity is established is informed by the investigative objectives pursued by the police: Araujo, at para. 43; Beauchamp, at para. 99. The investigative necessity requirement of s. 186(1)(b) applies to the investigation as a whole, not to each individual target. The supportive affidavit need not demonstrate investigative necessity on an individual target basis: Mahal, at para. 42; Beauchamp, at paras. 100, 119.

Probable Cause

[40] Counsel for the Applicant submitted that all of the evidence of Khaleyi and Morales should be excised from ITO#1 because of the “affiant’s grossly negligent omissions and inaccurate representations” and due to the lack of credibility and reliability of Khaleyi’s evidence.

[41] I note that the affiant was not cross-examined by the Applicant and therefore was not provided an opportunity to correct errors with respect to the dates of Khaleyi’s statements or to answer other questions regarding the credibility and reliability of Khaleyi and Morales’ evidence. The application record did however contain the statement summaries for each of the individual interviews with Khaleyi and Morales.

[42] In support of their position, Counsel for the Applicant relied upon the decision of R. v Hall, 2016 ONCA 13, [2016] O.J. No. 78, at para 43: The trial judge found that the affiant had failed to disclose information germane to a proper assessment of Utman’s credibility: R. v. Hall, 2014 ONSC 708 (Ont. S.C.J.), at paras. 48-51. He identified five specific areas of non-disclosure:

• The affiant failed to disclose that Utman had a powerful motive to falsely implicate Hall. He believed that Hall was involved in the torture and murder of his sister a few years earlier.
• The affiant failed to disclose that Utman had tried to “get a deal” in exchange for helping the police implicate Hall
• The affiant failed to disclose the full extent of Utman’s criminal activity.
• The affiant failed to disclose Utman’s ongoing drug addiction.
• The affiant described Utman as a “police agent”, although that status had not been finalized when the affidavit was sworn.

[43] None of the failures of the affiant set out in Hall are errors or omissions that can be attributed to Sergeant Pirt in ITO#1. Sergeant Pirt did not fail to supply evidence that was germane to a proper assessment of Khaleyi’s credibility. ITO #1 clearly set out Khaleyi’s age, criminal background, his demands for financial and other benefits from the police in exchange for his evidence, as well as his unsavoury character and his animosity towards the Applicant. The ITO also set out the relationship between Khaleyi and Morales as well as Morales’ age.

[44] I also disagree with the Applicant’s assessment of both the affiant’s alleged gross negligence in preparing the ITO and the lack of credibility of Khaleyi’s evidence. The affiant is not required to include every detail in its minutiae of a witness’s information. The issuing justice was told that Khaleyi was not a witness to the murder, but an informant/witness who was told about the murder from the alleged murderer and those involved in the murder. The issuing justice did not have to assess whether or not all of the information that Khaleyi had been given was true, (Nero, at paras 75 and 76) only whether the information in the entire affidavit established “a reasonably grounded belief in the commission of the offence and the collection of evidence about it, not proof beyond a reasonable doubt or a prima facie case of either.” (Nero, at para 117).

[45] Finally, I do not accept the submissions by the Applicant that had the issuing justice been told: a) that Khaleyi was told that Zalal was beaten with a crowbar; b) that Khaleyi was told that the crowbar, gun and 2 masks were put down the sewer on Marlin Private; and c) that Martin Peplinski had been identified as the person in whose house Zalal had been killed, according to what Khaleyi was told. that he would not have granted Authorization #1.

[46] The remainder of the issues the Applicant takes with the drafting of the affidavit in ITO#1 are errors in the dates the statements were made and whether or not the affiant put enough stress on certain aspects of the evidence.

[47] Accepting that Sergeant Pirt made some errors and that these were careless and demonstrated that he had apparently not reviewed all of the individual statements made by Khaleyi, is not sufficient to excise Khaleyi’s evidence when that evidence was correctly attributed to Khaleyi (R v Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at paras 28, 31). I do not find that the errors and omissions from the affidavit were either intentional or grossly negligent. Nor do I find that the omissions were reasonably capable of seriously distorting a proper assessment of the credibility of either Khaleyi or Morales.

[48] Khaleyi and Morales both provided evidence of the Applicant admitting to the murder. This information was corroborated by other evidence from other sources and that corroboration was provided to the issuing justice. In particular the evidence that the Applicant, Zalal, Kayem and Abdul-Hussein were members of the same street gang, that they had been together at various times on August 18 and in regular telephone communication that evening.

[49] It is a reasonable inference that interception of the private communications of the alleged participants in the murder would afford evidence of the nature and extent of their participation. As such, I do not find that there exists a basis to excise the evidence of Khaleyi and Morales from ITO#1.

[50] I therefore find that the first branch of the test under s. 186(1)(a), probable cause, has been made out; a crime was committed and granting the interception of the private communication sought would afford evidence of the offence for which authorization was sought.

Investigative Necessity

[51] A useful summary of the law as it pertains to the second branch of the test under s. 186(1)(b), that of investigative necessity, is set out by Justice Code in the case of R. v. Abdirahim, 2013 ONSC 7420, [2013] O.J. No. 6170 at paragraphs 36 - 39: The statutory language found in s. 186(1)(b) enacts a three part test, as follows: (b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. The three part test for "investigative necessity" is disjunctive and it has been held that "it is sufficient to satisfy one branch of s. 186(1)(b)". Nevertheless, the individual branches "ought not to be read in a vacuum" and "the disjunctive nature of the three branches does not remove the need to read the subsection together as a whole". See: R. v. Araujo et al (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at para. 28 (S.C.C.). Nordheimer J. was satisfied that "investigative necessity" had been made out. His endorsement relied mainly on the second branch of the test as he stated the following: I am satisfied that the requirement of investigative necessity is made out in this case. Many other investigative procedures have been employed and have yielded considerable information. Some persons have already been arrested and charged in relation to the other events but not the main events. While other investigative techniques will continue to be used as the investigation progresses, it is apparent that these other investigative techniques will not, by themselves, be sufficient to fully and properly investigate the very serious offences that are at the heart of this investigation. I note in that regard a general level of non-cooperation by persons who are clearly connected to these events in terms of their willingness to provide information to the investigators. As a consequence, the police are forced to resort to other investigative techniques, such as this application, in order to garner the needed evidence to provide a proper foundation for any effective prosecution of these offences. [Emphasis added]. The most authoritative judicial interpretation of the second branch of s. 186(1)(b) is found in R. v. Araujo et al, supra at paras. 29-35. LeBel J. gave the unanimous judgment of the Court and stated: "The words of the Code must be read with some common sense having regard both to the nature and purpose of the particular investigation which the police wish to undertake ... There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry. s. 186 does not require that all alternative investigative techniques have been tried. It is not simply a recourse of last resort. It is a technique ... which can be employed not only when the other methods have failed, but also, when they appear to have little chance of success ... [adopting R. v. Hiscock (1992), 72 C.C.C. (3d) 303 at 325 (Que. C.A)]. [Emphasis added].

[52] Authorization #1 was obtained close to one year after the murder. ITO #1 contained a thorough summary of the investigative techniques that had been employed by the police in conducting their investigation. ITO #1 set out the reasons why the investigation undertaken to the date of the ITO had limitations. It also explained the purpose of the wiretap authorizations as an investigative technique to acquire the content of discussions and communications between three individuals suspected by the police to have had some involvement in the murder of Zalal. ITO#1 explained that they had not been able to obtain that type of information from the techniques they had employed to date. Those techniques included interviews of various witnesses and informants, interviews of the individuals for whom the wiretap authorizations were sought, cell phone call detail records, as well as other forensic evidence.

[53] The Applicant submitted that the standard required for establishing investigative necessity was not met because there were other reasonable alternative methods of investigation that were available and had not yet been fully employed. In particular, the Applicant argued that the police should have followed up on the Khaleyi’s information regarding the alleged location of the murder and a search of the sewer where the gun, crowbars and the masks were alleged to have been discarded.

[54] Because the contents of Khaleyi’s May 17, 2007 statement to police was not included in the ITO, the Applicant submitted that the issuing justice was not told that the police had information regarding the alleged location of the murder or the location of the sewer. For the Applicant, this meant that the issuing justice could not properly assess the issue of investigative necessity.

[55] I do not accept the submissions of counsel for the Applicant that the standard of investigative necessity had not been met. I am not only satisfied that there was a basis on which the issuing justice, Panet J. could have been satisfied that the test for "investigative necessity" had been met, I am also satisfied that the Applicant’s proposed "reasonable alternative method of investigation" was not one which could undermine "investigative necessity."

[56] While it was possible that the "reasonable alternative method of investigation" proposed by the Applicant to conduct further searches might have yielded some useful evidence, it was unlikely or unrealistic that those searches would solve the murder.

[57] I also note that the standard of review is one of deference to the issuing justice. He had information before him about communications between the three individuals from whom wiretap authorizations were sought. The police believed that by applying certain prompts that these individuals might discuss the murder.

[58] In the case of R. v. Riley, Atkins and Wisdom, [2009] O.J. No. 738, at paras. 148, 152, Dambrot J. upheld the wiretap authorization on a s. 8 Charter motion where the Applicants alleged a lack of "investigative necessity": "Where the use of other investigative techniques would likely succeed in establishing the culpability of one target of an investigation of an offence that was perpetrated by several persons acting in concert, but would not succeed in establishing the culpability of others, investigative necessity is not defeated. The object of this investigation was to solve the murder of Charlton. Solving a murder obviously means more than figuring out who did it. It means developing a viable prosecution of the persons believed to have done it. In this case, that meant developing a case against Riley, if the investigation supported his guilt, but also ascertaining and building a case against whoever else was involved in the crime". [Emphasis added].

[59] The present case is somewhat analogous to the case in Riley, Atkins and Wisdom, supra. The police had information from their one year investigation that suggested the murder of Zalal was perpetrated by more than one individual. The purpose of the wiretap authorization was to develop a viable prosecution of the persons believed to have murdered Zalal.

[60] While other investigative techniques would continue, those techniques were unlikely to be sufficient to fully and properly investigate the murder. There was also a general level of non-cooperation by these three individuals in terms of their willingness to provide information to the investigators. As a consequence, the police were forced to resort to other investigative techniques, such as this application, in order to garner the needed evidence to provide a proper foundation for any effective prosecution of the murder.

[61] I therefore find that the authorizing justice did have a sufficient basis on which to grant Authorization #1 because practically speaking there was no other reasonable alternate method of investigation given the circumstances of the particular criminal inquiry. Investigative necessity was also established by the investigative objectives that the police intended to pursue by the wiretap authorizations. (Nero, at paras 117-120).

[62] I therefore find that the Applicant’s s. 8 Charter rights were not violated with respect to the granting of Authorization #1. Because of this finding, I also find that there was no breach of the Applicant’s s. 8 Charter rights with respect to the granting of Authorizations #2 through #6.

[63] For all these reasons, the s. 8 Charter motion to exclude Authorizations #1 through #6 is dismissed. The Applicant has not made out the alleged violations. The wiretap evidence is admissible at trial subject to any further Charter motions regarding spousal privilege or other specific alleged violations.

Madam Justice B. R. Warkentin Released: August 17, 2016

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION UNTIL THE END OF TRIAL PURSUANT TO SECTION 517 OF THE CRIMINAL CODE

COURT FILE NO.: 08-11565 DATE: 2016-08-17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – NAWAF AL-ENZI Applicant REASONS ON APPLICATION UNDER s. 8 and 24(2) of the CHARTER RE: INTERCEPTED COMMUNICATIONS APPLICATION Warkentin J. Released: August 17, 2016