COURT FILE NOs. (Brampton): CR-22-406 CR-22-543 DATE: 2024-06-28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MAHMOUD AL-RAMAHI and ATOUR PAUL

Counsel: Ian Bell, Vickramjeet Aujla, Jonathan Geiger and Ikdeep Singh for the Crown/respondent Craig Bottomley and Andrea VanderHeyden for the accused/applicant, Mahmoud Al-Ramahi Gregory Lafontaine for the accused/applicant, Atour Paul

HEARD: August 28, 29, 30 and September 1, 2023 [^1]

REASONS FOR RULING on application to exclude evidence

Rahman, J.

1. Introduction

[1] The applicant, Mahmoud Al-Ramahi, faces a variety of charges in two separate indictments. In one indictment, he is charged by himself with first-degree murder. In the second indictment, he is charged with committing various drug, firearm, and other offences, including various offences in association with a criminal organization. The applicant, Atour Paul, is jointly charged with Mr. Al-Ramahi on the latter indictment. The charges against both applicants arise out of an investigation dubbed “Project Siphon.” This investigation was conducted by several police forces across Ontario. It targeted a suspected criminal organization known variously as the “Suh Sick Gang” or “New Money Gang.” As part of the investigation, police obtained two authorizations to intercept private communications (in March and August 2020) of several of the investigation’s targets. The applicants were two of those targets.

[2] Both applicants applied under ss. 24(1) and 24(2) of the Charter for a stay of proceedings or alternatively exclusion of evidence.

[3] Mr. Al-Ramahi alleges that the police intercepted, listened to, summarized, and disclosed several of his solicitor-client privileged communications. He alleges that those solicitor-client privilege violations happened repeatedly and that police not only intercepted and listened to the calls, they also analyzed the calls to determine if they had any investigative value. Mr. Al-Ramahi points to the interception of his calls and text messages made between his phone numbers and numbers that police knew or ought to have known belonged to lawyers. He argues that this large-scale violation of solicitor-client privilege warrants a stay of proceedings because the court must dissociate itself from the police’s conduct. He submits that the court must send a clear message to police that they must be more careful in their approach to handling calls between lawyers and their clients, especially because this appears to be a wide-scale problem in the province, going beyond this case. Alternatively, Mr. Al-Ramahi argues that all of his communications gathered pursuant to the wiretap authorization should be excluded under s. 24(2) of the Charter because of the seriousness of the breach, and the serious impact it has had on his ss. 7 and 8 Charter rights.

[4] Mr. Paul joins Mr. Al-Ramahi’s application to exclude evidence, though he acknowledges that none of his solicitor-client privileged communications were intercepted. He argues that because he is attacking the overbroad nature of the search, he has standing to challenge any improper interception of others’ solicitor-client communications. Alternatively, he contends that the alleged Charter breaches involving Mr. Al-Ramahi gave the police an “unfair advantage” that infected the rest of their investigation, including against him. He contends that this gives him standing to advance a Charter claim for exclusion relying on s. 7 or s. 24(1).

[5] The Crown counters that, if Mr. Al-Ramahi’s Charter rights were breached (which it does not explicitly concede), the breach relates only to the interception of a dozen text messages, most of which were intercepted on the day that the project was taken down in November 2020. As for the broader violation that Mr. Al-Ramahi alleges, the Crown submits that there is no evidence that would allow the court to find that so many of Mr. Al-Ramahi’s solicitor-client privileged communications were improperly intercepted. The Crown says that there is no evidence that the impugned interceptions actually involved solicitor-client communications. The Crown argues that the court cannot rely on the duration of the intercepted calls and the fact that they were made to a lawyer’s number to infer that those calls contained content, and that a lawyer was party to the communication. The Crown says that the evidence otherwise demonstrates that the police were implementing the order properly according to its terms. As for Mr. Paul, the Crown argues that he lacks standing to advance a Charter claim on this application because none of his solicitor-client communications were intercepted. On the issue of the appropriate remedy for any Charter breaches, the Crown contends that it would be improper to exclude all of the evidence gathered over an eight-month wiretap investigation if the court only finds that a dozen text messages were handled improperly. The Crown argues that if the court finds a breach respecting the text messages, the court should not exclude any evidence but rather should make a declaration that there has been a breach. Mr. Al-Ramahi may then rely on such a declaration at sentencing.

[6] On December 15, 2023, I advised the parties of my decision granting Mr. Al-Ramahi’s application, in part, and dismissing Mr. Paul’s application. Mr. Al-Ramahi has not demonstrated that his audio calls were improperly intercepted or handled, or that the police overheard any privileged communications. However, he has demonstrated that his privileged text messages were improperly accessed and handled and has therefore established that his ss. 7 and 8 rights were breached. This is not an appropriate case for a stay of proceedings, because there is an alternative remedy available to address the breaches. That alternative remedy is exclusion of some of the evidence gathered pursuant to the omnibus authorization. The breaches here were serious and had a significant impact on Mr. Al-Ramahi’s Charter-protected interests. The appropriate remedy is to exclude all text messages gathered during the investigation after May 29, 2020, to which Mr. Al-Ramahi was a party and therefore has an expectation of privacy.

[7] Mr. Paul’s application was dismissed because Mr. Paul did not suffer a breach of his Charter rights. His attempt to advance a vague, s. 7 equities-based claim based on a breach of Mr. Al-Ramahi’s rights cannot succeed.

2. The application

[8] The applicants previously brought an unsuccessful application challenging the validity of the two wiretap orders issued during the Project Siphon investigation. This application deals with the alleged improper implementation of those orders. It targets the manner of the search.

[9] The parties filed voluminous records on this application. They agreed that the evidence filed in their respective volumes properly formed part of the record for the court to consider. The written record included preliminary inquiry testimony of two civilian monitors (Daniela Vlajkovic and Althea Saddler) and two police officers (Det. Cst. Jeff Chamula and Det. Sarah Angevine) who worked on the project. In addition, the court heard viva voce testimony from two police officers (Det. Erik Grant and Det. Cst. Chamula) and one civilian monitor (Kirk Radway). The Crown also provided the court with a chart that compiles information about audio and text communications that were made to lawyers’ phone numbers.

[10] I will not review all of the evidence in detail. Rather, I will provide a high-level overview of the way the police intercepted communications, how they were trained to handle privileged communications, and how they handled those calls.

3. Background

3.1. The interception of communications during Project Siphon

[11] As mentioned, the wiretap portion of Project Siphon investigation ran from March to August 2020. Mr. Al-Ramahi was one of 97 principal known persons whose private communications were being intercepted. The communications that the police intercepted included phone (audio) calls and text messages. The police also had authorization to install audio probes and video cameras.

[12] The interception and recording of private communications were accomplished using sophisticated software that is frequently referred to simply as JSI. The JSI software gathers and catalogues evidence of intercepted communications. Each communication that is intercepted is designated by the software as a “session” and given a unique session number. The JSI software allows users to access communications as they are being intercepted in real time, and after they have been recorded and stored. The software also allows sessions to be marked as privileged. Once a session is marked as privileged, the session’s content is segregated and sealed and becomes inaccessible to everyone but a system administrator.

[13] The software can automatically generate a report for each call or text message that is intercepted pursuant to the wiretap orders. These automatically generated reports are referred to as session history reports (SHRs). These reports record a whole host of information about the communication, and the handling of that communication by police. The Crown accurately describes the reports as creating an “audit trail.” The activity captured by these reports was the focus of this application. There was no dispute between the parties that the reports accurately captured the activity set out in them. The dispute centred around the interpretation and significance of certain activity.

3.2. How the wire room worked during Project Siphon

[14] The interception of calls was overseen by a group of police officers and civilian employees known as monitors. The physical space that was the nerve centre for this electronic eavesdropping was called the “wire room.” The room was not actually a single room but was spread across four or five rooms down one hallway, in part, because of social distancing requirements in place at the time. By all accounts, the wire room was extremely busy given the volume of electronic communications being intercepted. Project Siphon generated about 390,000 audio sessions and over one million text messages. Interception of Mr. Al-Ramahi’s communications included 22 different “lines” and two audio probes. These interceptions generated over 4000 audio sessions (either voice calls or probe audio) and over 1900 text messages.

[15] The monitors and police officers in the wire room monitored intercepted communications on their computer screens. Audio calls could be live monitored, meaning the monitors could listen to the calls in real time, as they were happening. Monitors would sometimes listen to a call in real time to determine if it was important. Sometimes they were directed to do so by an investigator. If the call was not important, they could discontinue listening to that call, and resume doing whatever they had been doing before (including listening to other calls). The call would continue to be recorded unless it was “minimized.” Minimizing a call stopped it from being recorded. A monitor or investigator could minimize a call if it was not one that was properly being intercepted under the order, including calls involving a lawyer. [^2]

[16] Generally, when live calls came in, a monitor would have “control” of the call and was live monitoring it (listening to it in real time). The police were also able to, and did, listen to calls live as they happened even if they were already being live monitored by a monitor. In such cases, while the monitor had control over the call, an investigator could listen to the call (reflected as “listen only” in the SHRs) but would not be able to perform actions such as minimizing the calls.

[17] The police and civilian witnesses testified about the typical workflow between the monitors and the police officers. After listening to a call – whether it was live or automatically recorded – the monitors would create a synopsis. If a call had content, the synopsis would be a verbatim record of the conversation. If the call was privileged, the monitor would type “privileged” in the synopsis. After the synopsis was marked “complete,” the call would then be available for a police officer to review. The call would then move to a police officer who would create a “summary” and categorize the call based on whether it was pertinent, non-pertinent or privileged. The summary would explain the relevance of the call to the investigation. If the call was not relevant, the officer could mark it non-pertinent. For privileged calls, the officer would also have the option to mark the call privileged. As mentioned, marking the call privileged would sequester the call such that it could not be accessed again by anyone except a system administrator. Det. Grant testified that calls involving lawyers would sometimes be marked as non-pertinent rather than privileged where the call contained no content. Given the number of calls the police were dealing with, Det. Grant testified that to make his workflow more efficient, he would sometimes select dozens of calls at once and classify them as non-pertinent. He explained that this method could have led to sessions which should have been marked as privileged being mistakenly classified as non-pertinent.

3.3. The handling of privileged calls

[18] The monitors were trained to minimize a call as soon as they determined it could be a lawyer call (because it was to a lawyer’s office), or they determined a lawyer was a party to the call. As already mentioned, once a call was minimized any recording of it stopped. Monitors would sometimes “spot-monitor” these calls. That meant they would listen to the call after 30-60 seconds had passed to determine if a lawyer remained a party to the call. If the call still involved a lawyer, the monitor would stop listening. This spot-monitoring only involved the monitor listening to the call. It did not result in the spot-monitored portion of the call being recorded. Also, if anyone else tried to listen to a live call that had been minimized, they would not hear anything. If a monitor encountered a privileged call, they would create a synopsis that simply contained the word “privileged” and close the call. For calls that had been automatically recorded, there was no ability to use the minimization function. If a monitor was listening to a recorded call and determined a lawyer was a party, they would stop listening to the call and write privileged in the synopsis. Det. Grant testified that if the word “privilege” showed up in a synopsis, he would then mark the call as privileged when it came to him.

[19] The JSI software also had the capability of allowing the police to input names that were associated with various numbers. With Project Siphon, the officers would input the names of lawyers associated with various phone numbers. Once names have been associated with various numbers, the respective names would come up when a call to or from their number came in. Although this linking of numbers to names was not immediate in the software ­– it could take as long as 10 days – there is no dispute that the police knew quite early on in the investigation, which numbers belonged to Mr. Al-Ramahi’s lawyers.

[20] Det. Grant said that if he saw a privileged call coming through, he would walk over to the civilian monitors’ room and alert them to the fact that a privileged call was ongoing. He testified that civilian monitors would do the same if they knew a privileged call had come in. Lawyers’ numbers were also recorded on a whiteboard. This whiteboard system was used to identify lawyer calls, especially before numbers were inputted in the system so that monitors would be able to recognize them.

3.4. Discovery that calls to lawyers’ numbers had not been marked privileged

[21] Project Siphon was “taken down” on November 12, 2020. By December 2020, the Crown had provided an initial wave of disclosure to the accused. On February 3, 2021, Crown counsel reviewing the file noticed that there was a text message included in the disclosure from one of Project Siphon’s targets (not either applicant) and a lawyer. The Crown got all the disclosure back from the accused to remove the privileged communication and to ensure that other privileged communications had not been disclosed.

[22] To that end, Crown counsel contacted Det. Sarah Angevine who was the project’s file co-ordinator. Det. Angevine and other officers promptly conducted a review of the intercepted communications gathered during the project. As part of this audit, they identified calls that had been made to or from numbers known to belong to lawyers. They also conducted a search through the call synopses using query terms that might indicate a request by someone to call a lawyer for them using a three-way call (e.g. “call my lawyer”). After several calls had been identified, they were immediately segregated regardless of whether they had any content. The Crown obtained all of the disclosure that had been made back from the accused. After removing the communications that they had identified involving lawyers’ numbers, the disclosure was provided back to the accused. During Det. Angevine’s audit, 14 sessions (12 calls and 2 text messages) were identified as calls made to or from Mr. Al-Ramahi’s numbers to lawyers’ numbers that had not previously been marked as privileged.

[23] The dispute on this application relates to 60 audio calls and 15 text messages that were made between a phone number associated to Mr. Al-Ramahi, and a lawyer’s phone number. I will not set out all of the calls here or review all of the session histories.

4. The alleged Charter breaches

[24] Before addressing the main alleged breaches in this case, I will address an issue that came up during submissions in response to a question from the court.

4.1. Paragraph 6(a)

[25] During submissions, I raised with counsel whether paragraph 6(a) could be read as preventing the police from listening to any calls that were made to a lawyer’s phone number. Mr. Bottomley agreed that the provision could be read this way but explained that his focus was on alleged breaches of paragraphs 6(b) and (c). Crown counsel took the position that paragraph 6(a) does not apply to the instant case. It does not create a blanket prohibition on intercepting any communications by targets if they happen to call a lawyer’s phone. Rather, it prohibits the police from conducting interceptions at a lawyer’s office. The provision prohibits the police from targeting a lawyer’s phone number for interception and intercepting calls made to and from that number. In support of its position the Crown relied on R. v. Taylor (1997), 86 B.C.A.C. 224, aff’d 1998 SCC 836, [1998] 1 S.C.R. 26.

[26] I agree with the Crown that paragraph 6(a) does not apply in this case, because no lawyers’ phone numbers were being targeted for wiretapping. As the Crown pointed out, the language of paragraph 6(a) mirrors the language of s. 186(2) of the Criminal Code. That section creates a general prohibition against wiretapping lawyers’ numbers. That provision has been interpreted as not permitting the police to target a lawyer’s line for interception.

[27] This interpretation is explained in Hubbard, Robert L., Mabel Lai, and Daniel Sheppard, Wiretapping and Other Electronic Surveillance: Law and Procedure at §6.10. The authors explain that when s. 186(2) is read in the context of the entire section, it does not prohibit the interception of calls involving a lawyer as long as the place that the police are intercepting is somewhere other than a lawyer’s office (and presumably a lawyer’s mobile phone):

Section 186 is the authority by which third party interceptions effected by the police are rendered lawful. When read in the context of s. 186 as a whole, s. 186(2) and (3) holds that no authorization can be granted to intercept calls at a solicitor's office, residence or any other place where he or she ordinarily provides legal advice unless the issuing justice has specifically turned his or her mind to whether there are express grounds for the interception. Without an express authorization under s. 186(2), interceptions at any place ordinarily used for business by a solicitor are unlawful. However, if interceptions are made elsewhere (e.g., at an accused's residence, as in Taylor), the fact that the communications involve a solicitor does not mean that the interceptions are unlawful. [Emphasis added.]

[28] Paragraph 6(a) is not engaged in this case by the police’s interception of communications that were made to or from lawyers’ numbers. Because the lines that the police were targeting with their interceptions did not belong to lawyers, there was no violation of paragraph 6(a).

[29] I now turn to the question of whether the police violated the paragraphs concerning audio calls and text messages.

4.2. The audio calls

[30] Paragraph 6(b) of the authorization deals with the handling of audio calls. This paragraph covers calls that are live-monitored and calls that are automatically recorded. When calls are live monitored, a monitor must discontinue the interception as soon as they reasonably believe that a lawyer is a party to the communication. However, the monitor does not have to stop listening to the communication for good. The authorization allows the monitor to “spot monitor” the call, meaning that the monitor may listen in at reasonable intervals to determine that a lawyer remains a party to the communication. For automatically recorded calls, a monitor who later reviews the call must stop reviewing the call as soon as they reasonably believe that a lawyer is a party to the communication. Significantly, the authorization has no explicit requirement for the police to stop intercepting calls that are made to, or are received from, a lawyer’s phone number. For ease of reference, paragraph 6(b) is set out in its entirety below:

When a monitor reasonably believes that a solicitor is a party to a communication, intercepted at any place or over any device, the monitor must discontinue the interception. At reasonable intervals, the monitor may resume the interception for the purpose of determining whether the solicitor remains a party to the communication. When communications have been intercepted while on automatic monitoring, the monitor who subsequently reviews the communication must cease reviewing the communication as soon as the monitor reasonably believes that a solicitor is a party to the communication, but may monitor the communication by reviewing at reasonable intervals for the purpose of determining whether the solicitor remains a party to the communication. No person shall access any communication to which a solicitor is a party, that is recorded pursuant to this Authorization except as authorized by this Court.

4.3. Parties’ positions

[31] Mr. Al-Ramahi alleges very broad breaches of his ss.7 and 8 Charter rights. He argues that no calls to or from lawyers’ phone numbers should have been intercepted because the authorization prohibits the police from intercepting calls to which a lawyer is a party. He asks the court to infer, based on the length of the recordings in the session history reports, that a lawyer or someone from the lawyer’s office must have been speaking during the impugned calls and a lawyer was therefore a party. Mr. Al-Ramahi’s application is premised on the assumption that calls to lawyers’ numbers likely involved a communication between the lawyers and their clients. Mr. Al-Ramahi also alleges that the police improperly accessed recordings of the privileged calls.

[32] The Crown’s position respecting the audio calls is that the applicant has not established that the police breached the order. The Crown frames the question as follows: “whether there’s any evidence that a monitor or an investigator failed to deal appropriately with the communication[s] at a point where they ought to have known a lawyer was part of the communication.” The Crown says that there is no evidence that would allow the court to infer that paragraph 6(b) was violated. The Crown points out that there are a number of session history reports showing live monitored calls being minimized early in the sessions, mostly before the 70 second point. The Crown argues that, without knowing whether the impugned calls had any content, the reasonable inference is that those calls were also properly minimized as soon as a lawyer became a party, or that the calls did not require minimization because a lawyer never became a party to a call. Calls that were not minimized tended to be less than 70 seconds. The way the calls were handled is consistent with the inference that the calls never reached a lawyer.

4.4. Analysis

[33] I agree with the Crown that Mr. Al-Ramahi has not established that any of his voice calls were intercepted or reviewed in violation of the order. Mr. Al-Ramahi has the onus of proving that his Charter rights were violated. To succeed on this application, Mr. Al-Ramahi must demonstrate that the police either improperly intercepted communications to which a lawyer was a party, or that they otherwise handled communications in violation of the wiretap order. He has failed to do so. I say that for the following reasons.

[34] First, there is no evidence about whether a lawyer was ever a party to any of the disputed calls. I cannot accept Mr. Bottomley’s submission that, as soon as the police realized a lawyer’s number was being called they had to immediately stop listening. [^3] The order did not require the police to stop listening as soon as a lawyer’s number was calling or being called. Rather, for live-monitored calls, the order required the police to discontinue the interception when they reasonably believed that a solicitor was a party to a communication. Mr. Al-Ramahi has failed to establish the two elements of that restriction – a communication, and a lawyer as party. If the calls involved only ringing, there was no communication. If the call was answered by an employee of the law firm or it was directed to voicemail (and in both cases nothing privileged was communicated), there would be no lawyer.

[35] The length of the impugned calls is not determinative. I cannot accept Mr. Bottomley’s submission that the court can infer that calls are necessarily answered after a certain duration. The uncontradicted evidence on the voir dire was that calls about a minute or so in length usually did not have content. Indeed, Det. Grant testified that he would often mark calls of this length or shorter as non-pertinent in batches because they would not contain content. Moreover, Det. Grant testified that sometimes calls without content would have longer durations for unknown reasons. That means even the calls that were longer than the one-minute range may not have had any content. I also have no evidence about how the software’s recording worked, and whether it may have kept recording after a hang-up (causing a discrepancy between the duration set out in the SHRs and what content was actually recorded). That means even the calls that were longer than one minute may not have contained any content. [^4] Considering this evidence, and lack of evidence, I cannot infer that calls in the range of one minute necessarily contained any communications, let alone ones to which a lawyer was a party.

[36] Moreover, as the Crown observes, there is evidence that the police properly handled calls. For example, one of the longer calls to Mr. Midanik’s line was minimized after 72 seconds. In addition to that call, several other calls to lawyer’s lines were minimized part way into the call. This is positive evidence that the monitors were using the minimization function on several occasions when a lawyer’s line was called. Whether they were doing so because they heard a lawyer speaking, or they were doing it proactively, this evidence shows that lawyer calls were being minimized.

[37] In the same vein, the testimonial evidence from all of the witnesses on this application makes clear that they understood that they were to stop listening if there was a lawyer on the line. I do not accept Mr. Bottomley’s submission that simply seeing a lawyer’s number required the police not to listen. The order did not require them to do so. Nor do I accept his submission that the SHRs show that officers were improperly listening when they were “jumping on and off” calls by monitoring them. There is simply no evidence that the calls that they were “jumping on and off” even had any content. As Mr. Bell put it in his submissions, the very short duration of the police “jumping on and off calls” is consistent with randomly checking into calls to see if there was any content.

[38] I also reject Mr. Bottomley’s submission that because monitors and officers created synopses and summaries, they were necessarily listening to, analyzing, and writing about content of calls. Ms Saddler explained that a monitor had to mark a synopsis complete before an officer could review it. In other words, the creation of a synopsis did not necessarily mean that the monitor was listening to and summarizing content. Rather, it was a step in their workflow. Indeed, a review of the SHRs show that the synopses for the impugned calls were created and completed in a matter of seconds. This makes it unlikely that the monitors were doing any more than creating a document that had no content or typing the single word “privileged” in it to indicate that the call was privileged. Similarly, Det. Chamula testified that if he recognized a call was privileged when the monitor’s synopsis said so, he would mark it as privileged and mark the review having been completed. This latter step ensured that these calls would no longer come up if another investigator tried to filter for unreviewed calls.

[39] Mr. Al-Ramahi also takes issue with the police’s failure to mark calls as privileged. The failure to categorize an audio call as privileged, on its own, is not a violation of paragraph 6(b) of the order. That paragraph did not require the police to do anything in particular with a privileged call (unlike the provision governing text messages, discussed below). Rather, the order required them not to access such calls. The marking of calls as privileged was a useful means of ensuring that any minimized calls were not accessed because they would automatically become inaccessible. However, nothing in the order required the police to do so.

[40] Before leaving the issue of the audio calls, I will address the rationale for Mr. Al-Ramahi’s decision not to file any of the impugned calls, or evidence about them, on this application.

[41] During submissions, in response to the court’s question about why the defence had chosen not to file any of the impugned communications, or any evidence about them, Mr. Bottomley gave two reasons. His first reason, for not filing the calls themselves, was understandable. If his client had suffered a breach of solicitor-client privilege, he should not have to further share that communication with the court, even if the court is within the circle of privilege. [^5]

[42] His second reason for not filing an affidavit from someone describing the communications without disclosing their contents was less understandable. Mr. Bottomley explained that doing so would make a witness of whomever deposed such an affidavit. It is unclear to me why this would be such a concern. Third-person affidavits are routinely filed in support of Charter applications. That kind of affidavit would not have required Mr. Al-Ramahi to expose his privileged conversations to anyone outside of his own lawyer’s firm. Not even to the court. It is the applicant’s onus to establish a Charter breach. This application involved an evidentiary hearing. The applicant could have called evidence on this hearing. He had the ability to do so in a way that would not have disclosed the contents of any solicitor-client communications (assuming there were such communications). He chose not to. There was nothing stopping the applicant from filing an affidavit from another lawyer, a paralegal, or a student who had listened to the calls and could have deposed that conversations had in fact been intercepted. There was also nothing stopping Mr. Al-Ramahi from filing the synopses or summaries (or filing an affidavit about them) that he claims involved the police “analyzing” his privileged communications to see if they had evidentiary value. Even if making an employee a witness was a valid concern, it is difficult to understand why that concern was more important than establishing a Charter breach. Mr. Al-Ramahi’s Charter claims are serious. He alleges that the police engaged in a sweeping invasion of his privacy by listening to private, privileged communications. He also alleges that this problem is a systemic one that goes beyond this investigation. On one indictment he faces the most serious charge under Canadian criminal law. And he is asking the court for the most drastic constitutional remedy available. If there was any case where the benefits of filing such an affidavit would exceed the perceived costs of making someone a witness, this would seem to be it.

[43] Further, this is not a case where the applicant was at an evidentiary disadvantage because the Crown had sole control over the evidence required to prove a breach. There was no suggestion that defence counsel could not have accessed the privileged calls if they had asked for them (and that was not one of the applicant’s reasons for not filing evidence about the communications’ contents). In any event, had the calls been inaccessible to him for some reason, Mr. Al-Ramahi could have sought the court’s assistance in getting them – a request which would easily have been granted. Since he has chosen not to file any evidence about the content of the calls, the court is left to decide what inferences to draw from the evidence in the record. And as I have explained, I am unable to infer that the police violated paragraph 6(b) concerning the handling of audio calls.

4.5. Text messages

[44] My findings are different regarding the text messages between Mr. Al-Ramahi and his lawyer. The police did not handle the text messages according to the terms of the order. Unlike voice calls, where there was no prohibition on listening to calls until the police reasonably believe that a lawyer was a party to the call, the provision of the order governing text messages is more stringent. Paragraph 6(c) of the order says that where a monitor determines that a communication involves a lawyer and could be subject to solicitor-client privilege, the monitor shall not read the communication and shall immediately close, segregate and seal the communication. For ease of reference, paragraph 6(c) is set out in its entirety below:

With respect to any electronically transmitted communications such as text messages and emails, when a monitor initially determines that the communication involves a lawyer and could be subject to solicitor-client privilege, the monitor shall not read the communication, shall immediately close, segregate and seal the communication. The communication shall remain sealed except as authorized by this Court in compliance with paragraph 6 of this Authorization.

[45] The first text messages that the police accessed and failed to immediately segregate were sent on May 29, 2020. By that point in the investigation, the police knew who Mr. Midanik was and they knew his phone numbers. Indeed, another text message from that day was marked privileged the next day. Once they saw that number, they should not have reviewed the text messages, and they should have immediately segregated them by marking them privileged. That is so even if the messages did not contain any privileged information.

[46] I cannot accept Crown counsel’s submission that because there is no evidence what exactly the police were looking at when they accessed the impugned text messages, the court cannot find that the police read the text messages. Mr. Radway and Det. Cst. Chamula’s evidence suggests that accessing a message allowed them to read its content. Mr. Radway testified that once a text message was opened, and they realized it was privileged it would be marked as such. When Det. Cst. Chamula was shown SHRs in cross-examination, he agreed that those reports showing officers had accessed the messages meant they had viewed them. Ms Saddler also testified that “viewed content (SMS pager)” meant that someone read the text message. To the extent that the Crown’s position suggests that the police may not have intentionally accessed the text messages because they may not have realized the text involved a lawyer’s phone number, I cannot accept it. The difficulty with this submission is that the order required the police not to read any communication involving a lawyer that could be privileged. If the JSI software did not permit the police to determine that the communication involved a lawyer without reading the communication, they ought to have told the authorizing judge this. Paragraph 6(c)’s requirement to not read the communication after determining that the message involved a lawyer implies that the police had the ability to determine a lawyer’s involvement without reading the message. I find it hard to believe that the police were not able to see the numbers involved before accessing the text messages, otherwise it is doubtful that they would have sought this condition in their wiretap application. The police should not have opened any text messages sent to or from a lawyer’s number.

[47] Unlike voice calls, text messages necessarily contain communication, unless they are blank or contain gibberish sent accidentally. Given the number of text messages that were improperly accessed and not segregated here, I am satisfied that some of the text messages must have contained content that amounted to communication. This was not a single errant text message. The May text messages involved a series of text messages as did those sent in November. It is reasonable to infer that some if not most of them contained content. Mobile phones are personal communication devices. They are typically used by one person. Therefore, the compelling inference is that a text message sent or received from a lawyer’s phone “involves a lawyer.” It is also reasonable to infer that any such communication “could be subject to solicitor-client privilege.” Because those text messages were exchanged between Mr. Al-Ramahi and Mr. Midanik’s cell phone, paragraph 6(c)’s prohibition on reading the communication applied, as did the requirement to immediately close, segregate, and seal them. The two text messages from May 29, 2020 were never segregated and marked privilege until Det. Angevine’s audit in February 2021. The text messages from November 12 were all accessed before that. None was sealed until December 11.

[48] The police’s failure to follow paragraph 6(c) of the order means that they violated Mr. Al-Ramahi’s s. 8 Charter rights. I am prepared to find that some of the dozen text messages contained content that was covered by solicitor-client privilege. Consequently, I find that Mr. Al-Ramahi’s s. 7 Charter rights were also breached.

5. Remedy

5.1. A stay of proceedings is not appropriate

[49] Mr. Al-Ramahi sought a stay of proceedings as a remedy, although he sought that remedy based on much broader breaches of ss. 7 and 8 than I have found. While the breaches he had originally alleged may have warranted a stay of proceedings, the more limited breaches that I have found, relating only to text messages, do not.

[50] In R. v. Babos, 2014 SCC 16, at para. 32, the Supreme Court set out the following three requirements a court must considering in deciding whether to stay proceedings:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.”

[51] Mr. Al-Ramahi sought a stay of proceedings under the residual ground, where the impugned state conduct risks undermining the integrity of the judicial process. I will consider the requirements in Babos as they relate to this residual category.

[52] In considering the first requirement, a court must determine whether the impugned state conduct that is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos at para. 35. The inquiry at the first stage will favour a stay of proceedings where it appears that “the state misconduct is likely to continue or that carrying forward with the prosecution will offend society’s sense of justice”: Babos at para. 36, citing Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 SCC 322, [1997] 3 S.C.R. 391. The question a court must answer at the first stage of the Babos test is “whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” and “would lend judicial condonation to impugned conduct”: Babos, at para. 38.

[53] I am not satisfied that the relatively limited scope of the Charter breaches that I have found would be harmful to the integrity of the justice system such that proceeding would do further harm to the system’s integrity. Nor do I find that proceeding would amount to judicial condonation of the impugned conduct, any more than any other case where a trial proceeds despite the police obtaining evidence unconstitutionally. To be clear, and as I explain below, the Charter breaches here were serious. And serious Charter breaches will always do some harm to the integrity of the administration of justice. However, to justify a stay of proceedings, the conduct which the court seeks to sanction must be significant enough to offend society’s sense of justice. The breaches here, while serious, do not reach that very high level.

[54] More importantly, there is another remedy that can redress any prejudice to the integrity of the administration of justice. The exclusion of evidence that was obtained in a manner that violated the applicant’s Charter rights is the alternative and more appropriate remedy in the circumstances. A stay of proceedings is the most drastic remedy available to redress prejudice flowing from Charter breaches. It is a last resort. The Charter breaches here are not so serious that they require that remedy of last resort.

[55] The availability of an alternate remedy means that there is no uncertainty about whether a stay of proceedings is warranted. It is not. There is no need to consider the third step of the Babos test. I turn now to consideration of the alternative remedy, exclusion of evidence.

5.2. Exclusion of evidence

[56] During submissions, I asked the parties what the appropriate s. 24(2) remedy would be if the only breach the court finds is the improper interception of text messages. Neither party provided a middle-ground between full exclusion and no exclusion.

[57] When the police breach a Charter claimant’s rights at the end of a long investigation, it can be difficult to define what other evidence is part of the same investigative transaction. Taking a broad view, all evidence obtained pursuant to an investigative order could be regarded as having been gathered in the same investigative transaction. That is the view Mr. Al-Ramahi takes. The Crown takes a very narrow view. The breach happened on two days and involved a discrete set of one type of communications. The impugned communications cannot be used as evidence anyway. On the Crown’s view, there is no other evidence that is part of the same investigative transaction. The Crown argues that the court should simply issue a declaration that there has been a Charter breach and allow the breach to be used as a mitigating factor at sentencing.

[58] First, I reject the Crown’s submission that no evidence should be considered for exclusion. There was a breach here and it was a significant one. It cannot be said that no evidence was obtained in a manner that violated the Charter. Evidence was gathered in a manner that breached the order, and therefore breached Mr. Al-Ramahi’s Charter rights. As that evidence is privileged, it is already subject to exclusion. There is no other evidence that was gathered directly through a Charter breach. I cannot accept the Crown’s position that the court should simply issue a declaration that there has been a Charter breach, and then permit the breach to be used as a mitigating factor on sentence. That is especially so where one of the charges Mr. Al-Ramahi faces carries a mandatory life sentence upon conviction.

[59] However, I agree with the Crown that the potential exclusion of all evidence gathered under the omnibus order is not appropriate. The breaches here, while serious, occurred on two days of the investigation. They should not have happened, and the police could have taken measures to prevent the breaches from happening. However, the omnibus order is an omnibus one because it did not just authorize the interception of phone calls and text messages. It involved other, related applications under various provisions of the Criminal Code (including general warrants and dialed number recorders). There is no suggestion that those various authorizations were not implemented properly. Moreover, this was an eight-month investigation. In determining whether the evidence Mr. Al-Ramahi seeks to have excluded was indeed obtained in a manner that violated the Charter, it is necessary to consider the temporal, causal, and contextual connection between the breaches and the evidence.

[60] A Charter claimant can only obtain exclusion of evidence under s. 24(2) of the Charter by demonstrating that evidence was “obtained in a manner” that violated the Charter. In R. v. Tim, 2022 SCC 12, at para. 78, the Supreme Court set out the following summary of principles relating to the question of whether evidence was “obtained in a manner” that breached an accused’s Charter rights:

1. The courts take “a purposive and generous approach” to whether evidence was “obtained in a manner” that breached an accused’s Charter rights.
2. The “entire chain of events” involving the Charter breach and the impugned evidence should be examined.
3. “Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct.”
4. The connection between the Charter breach and the impugned evidence can be “temporal, contextual, causal or a combination of the three.”
5. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2). Such situations should be dealt with on a case by case basis. There is “no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.” [Citations omitted.]

[61] There is no causal connection between the breaches and the evidence that Mr. Al-Ramahi seeks to exclude. The texts that were improperly handled have been excluded because they were likely privileged. The temporal and contextual connections to other evidence gathered in the investigation is not as easy to discern. To the extent that both of these concepts concern evidence that was gathered during the same investigative transaction, I will examine what evidence can properly be considered as part of that transaction.

[62] This was a lengthy and complex investigation. The wiretap orders were in place for almost 8 months. As mentioned, the orders also did not just authorize the interception of phone-to-phone communications. They authorized the interception of private communications using audio probes and video cameras at various locations. It is difficult to see how all of these intercepted communications have a temporal or contextual connection to the improper handling of text messages. On the other hand, I am mindful that it would undermine the remedial purpose of s. 24(2) to apply too stringent a threshold to trigger the Charter’s remedial provision. As Paciocco J.A. recently observed in R. v. Davis, 2023 ONCA 227, at para 29:

Treating the “obtained in a manner requirement” as an exacting threshold would be contrary to the remedial scheme of s. 24(2) because it would foreclose trial judges from engaging in the close “core inquiry” that is needed to preserve the repute of the administration of justice, and potentially prevent trial courts from having an available remedy for Charter violations that should not be condoned.

[63] At the same time, courts have been clear that the mere fact that evidence was gathered during the same police investigation in which a breach was committed does not mean that evidence was necessarily obtained in a manner: see R. v. Boutros, 2018 ONCA 375, at para 25. That means just because there were Charter breaches, those breaches do not automatically taint the entire investigation requiring exclusion of all evidence gathered during it.

[64] In my view, the evidence that is subject to exclusion comprises all text message communications that were intercepted under the omnibus authorization to which Mr. Al-Ramahi was a party after May 29, 2020. The only breaches I have found relate to the improper interception and handling of text messages. The first improperly intercepted text messages were intercepted on May 29, 2020. By that point, the police ought to have known that they had improperly intercepted solicitor-client privileged messages. They also had the ability to prevent such an improper interception. I find this remedy to be appropriate because it was the interception of text messages where the police were not vigilant about implementing the authorization properly. I have dismissed Mr. Al-Ramahi’s claim that the police improperly intercepted the audio calls. I recognize that there is a temporal connection between audio calls that were intercepted proximate to the May 29 and November 12 text messages. However, it would be arbitrary to simply pick a date where the temporal proximity begins or ends because there is no principled basis to stop at a certain number of days or weeks before the alleged breaches. Instead, I am relying on a contextual connection between the Charter breaches and the obtaining of evidence. To the extent that s. 24(2) involves a court dissociating itself from unconstitutional police conduct, it seems appropriate for the court to dissociate itself from the type of evidence-gathering technique that breached the Charter and exclude evidence gathered pursuant to that technique after the first instance of the offending conduct. This provides Mr. Al-Ramahi with a remedy for the breach of his rights but does not provide a remedy that would amount to a windfall given the relatively discrete nature of the breaches in this case. In describing the breaches as relatively discrete, I do not wish to make light of their seriousness. My description of them as relatively discrete refers only to their timing, and the amount of evidence involved.

[65] Applying the generous and purposive approach to s. 24(2), I find that all of Mr. Al-Ramahi’s text messages intercepted after the first breach on May 29 have a temporal and contextual connection to the breaches. These text messages can be regarded as being part of the same investigative transaction as the breaches. That investigative transaction was the interception and gathering of Mr. Al-Ramahi’s text messages. The remaining intercepted communications are too remote and their connection to the breaches too tenuous. I have not found that the police improperly handled the audio calls, the audio probes, or the video cameras. Those forms of evidence have a weak connection to the breaches. Excluding them would amount to excluding most of the evidence just because it was gathered during the same investigation.

[66] As is probably clear from the foregoing discussion, I find that the three-step Grant inquiry favours exclusion. The nature of the breach was serious. The police violated a clear term of the wiretap order. They did so despite having the ability to ensure such breaches did not happen. I cannot accept the Crown’s submission that, because most of the breaches happened on the final, takedown day of the investigation, the breaches were inadvertent. The police also improperly handled text messages over five months earlier in May. And they had the ability to prevent this improper handling. The impact on Mr. Al-Ramahi’s Charter-protected interests was significant. The police mishandled his privileged communications. Those are communications which attract a heightened expectation of privacy. The first two steps of the Grant inquiry strongly favour exclusion. Finally, even if the third step of the Grant inquiry favours admission of the evidence, it cannot overcome the exclusionary pull of the first two steps: R. v. McGuffie, 2016 ONCA 365, at para. 63; R. v. Beaver, 2022 SCC 54, at para. 134.

5.3. Mr. Paul’s application

[67] Finally, I will address Mr. Paul’s application. Mr. Paul essentially tagged along with Mr. Al-Ramahi’s application and sought the benefit of whatever remedy Mr. Al-Ramahi obtained. [^6] As mentioned above, he does not allege any unconstitutional interception of his own communications. Rather, he argues that he is entitled to a remedy if the court finds that the police improperly implemented the wiretap orders. In his brief written notice of application, Mr. Paul relied on the Supreme Court’s decision in R. v. Thompson, 1990 SCC 43, [1990] 2 S.C.R. 1111, as authority for the proposition that an unconstitutionally conducted search entitles a third party whose expectation of privacy has not directly been breached to a remedy. In oral submissions, after Crown counsel distinguished Thompson from the instant case, Mr. Lafontaine revised his submissions to include a s. 7 breach because police obtained an “unfair advantage” in the investigation. I will address each of these submissions in turn.

[68] First, Mr. Paul’s submission that he can benefit from third party breaches based on Thompson cannot succeed. As Crown counsel correctly observed, Thompson involved a challenge to the wiretap authorization itself, not the manner of the search. In Thompson, the Supreme Court held that a provision in the wiretap order that permitted interception of communications at a public telephone without live monitoring was overbroad because it allowed for the interception of third parties who were unconnected to the investigation. In other words, the breach of third party’s privacy rights was a risk posed by the wiretap order. That made the provision in the order constitutionally deficient because it permitted a sweeping invasion of privacy. The case does not stand for the proposition that a third party whose constitutional rights are not violated may obtain a remedy for the violation of someone else’s rights where that claimant attacks the manner of the search.

[69] Second, Mr. Paul’s allegation that his s. 7 rights were breached must also fail. Apart from one case, to which I will refer shortly, Mr. Lafontaine provided no authority to support this submission. [^7] It is unclear to me how Mr. Paul’s right to life, liberty, or security of the person are personally violated by the infringement of Mr. Al-Ramahi’s rights. During his submissions, Mr. Lafontaine referred to one case, the Court of Appeal’s decision in R. v. Sadikov, 2014 ONCA 72. He said Sadikov allowed for a “windfall benefit that another individual will get who doesn’t necessarily have standing.” Sadikov stands for no such proposition.

[70] Sadikov involved a Crown appeal of a decision to exclude evidence against two accused, Sadikov and Harding. Harding was a tenant at an apartment where drugs were found. She was jointly charged with Sadikov for possessing those drugs. Harding did not initially join in Sadikov’s application to exclude evidence at trial but received the benefit of the trial judge’s ruling excluding evidence after it had been made. Consequently, she was a co-respondent on appeal. The Court of Appeal reversed the trial judge’s decision and ordered a new trial for both Sadikov and Harding. Nowhere in the decision did the court suggest that Harding properly received a “windfall” at trial because she did not have an expectation of privacy. To the contrary, by all appearances, Harding had an expectation of privacy. The so-called “windfall benefit” she received was obtaining exclusion of evidence even though she had not formally joined Sadikov’s application to exclude evidence. The only reference to standing in the entire judgment is in a footnote which explained that Sadikov lacked standing to challenge one of the warrants. Sadikov has no bearing on this application.

[71] Because Mr. Paul did not suffer any breach of his Charter rights, his application must be dismissed.

6. Conclusion

[72] Mr. Al-Ramahi’s application is granted, in part. Mr. Al-Ramahi’s rights under ss. 7 and 8 of the Charter were violated because the police did not follow clause 6(c) of the wiretap order. The police’s handling of text messages violated that clause of the order. The Charter breaches in this case do not warrant a stay of proceedings. The Charter breaches do warrant exclusion of evidence. All of Mr. Al-Ramahi’s SMS text messages (incoming and outgoing) after May 29, 2020, at 12:42:34, are excluded from evidence against him. This exclusionary order includes text messages sent and received that were intercepted pursuant to both of the wiretap orders from any of Mr. Al-Ramahi’s numbers.

[73] Mr. Paul’s application is dismissed.

Rahman, J.

Released: June 28, 2024

COURT FILE NOs. (Brampton): CR-22-406 CR-22-543 DATE: 2024-06-28 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MAHMOUD AL-RAMAHI and ATOUR PAUL REASONS FOR RULING Rahman J. Released: June 28, 2024

Footnotes

[^1]: I heard this application as a case management judge under s. 551.3 of the Criminal Code. [^2]: Another example of calls that would be minimized included calls involving persons who were not named in the wiretap order. [^3]: In his submissions, he put this proposition more colourfully by saying that when “[lawyers’] names were popping up in the JSI History, they should have been jumping off these calls like rats off a ship.” [^4]: I note that the longest call that was not minimized was one-minute and forty-three seconds from Mr. Al-Ramahi to Mr. Midanik’s office line, after business hours at 9:43pm. Putting aside the evidence to which I have just referred about the problem with inferring content from the duration of a call, I also note the likelihood of an after-hours call to a law office resulting in an automated message or no live conversation with a lawyer. If nothing privileged was communicated (e.g. no message left), there would be no Charter violation. [^5]: I note that in R. v. Collins, 2023 ONSC 1297, the applicant filed privileged communications under seal. The trial judge orally provided a summary of the subject matter of the call to the Crown. [^6]: He did not file any materials except a three-page notice of application on the final day of the hearing. [^7]: In fairness, this submission appears to have been one Mr. Lafontaine improvised on the spot after Crown counsel had pointed out that Thompson did not help his standing argument.