Purpose and Prejudice in Charter Litigation
- January 15, 2024
- Clayton Rice, K.C.
The meaning of a constitutional right is ascertained by an analysis of the purpose underpinning the right. Purpose is understood in light of the interests a right is meant to protect. In a case winding its way through the Court of King’s Bench of Alberta at Calgary, Alberta, an application judge held that the right to be informed of the specific offence charged without unreasonable delay does not exist primarily to protect the right to make full answer and defence or ensure trial fairness and prejudice is not a requirement to establish a violation of s. 11(a) of the Charter of Rights and Freedoms
On November 20, 2023, the trial of Mohamad Najie El-Ajami on a nine count indictment including charges of conspiracy to traffic in cocaine, fentanyl and methamphetamine began in the Court of King’s Bench of Alberta, at Calgary. The case has produced two important rulings on ss. 8 and 11(a) of the Charter. In a ruling released on January 12, 2024, the trial judge granted a declaration that a tracking device warrant and assistance order was invalid in violation of Mr. El-Ajami’s right to be secure against unreasonable search or seizure under Charter s. 8. (here) The other ruling was released by an application judge on June 29, 2023, on a pre-trial motion initiated by Mr. El-Ajami asserting that his right to be informed without unreasonable delay of the specific offences he was charged with was violated. (here) In this post I will comment on the pre-trial ruling on Charter s. 11(a).
On October 21, 2015, the Calgary Police Service obtained a wiretap authorization as a component of a drug investigation called Operation Gin and Tonic. Mr. El-Ajami was a target. On November 4, 2015, he survived a shooting attempt on his life and ten days later his brother was gunned down in a Calgary barbershop. On November 24, 2015, Mr. El-Ajami traveled to Lebanon with other members of his family for his brother’s funeral. The police subsequently executed search warrants and other targets were arrested. On December 16, 2015, the police applied for a warrant for Mr. El-Ajami’s arrest. The application for the warrant disclosed that the police knew Mr. El-Ajami was in Lebanon.
On the same day, Det. Brian Hollingsworth, the lead investigator, called Mr. El-Ajami’s Canadian cell phone number and asked him to come to the police station to talk about the investigation. Mr. El-Ajami asked him what the charges were. The detective said, “I can discuss that with you…when you come in in person…I’m not gonna discuss that with you over the phone cause I’m not hundred percent positive this is Mohamad El Ajami.” During cross examination on the pre-trial application, Det. Hollingsworth testified he had no doubt it was Mr. El-Ajami and he refused to discuss the charges because he wasn’t ready.
On December 17, 2015, Det. Hollingsworth called him again. Mr. El-Ajami asked, “What type of charges do I got?” The detective replied, “You got some trafficking charges and some conspiracy to traffic charges.” An Information (the charging document) was sworn the next day charging Mr. El-Ajami with conspiracy to traffic drugs, three counts of trafficking and one count of drug production. On January 20, 2016, Det. Hollingsworth called again and asked him for an address where he could “send some paperwork.” The paperwork was a notice related to the wiretapped communications.
There were four other ways the police could have provided Mr. El-Ajami with details about the specific charges. Det. Hollingsworth could have texted a copy of the Information to him at the same cell phone number. The information could have been provided to members of his family who lived in Calgary. The details could also have been given to Mr. El-Ajami’s father when he went to the police station to retrieve materials seized from his home. And, when he requested disclosure from the Public Prosecution Service of Canada by email and telephone, he was told not to “communicate directly with the Crown but instead should communicate through counsel.” He eventually retained counsel and voluntarily returned to Calgary on March 6, 2022.
3. The Charter Issues
The pre-trial application asserted three Charter violations. Mr. El-Ajami claimed his right to be informed without unreasonable delay of the specific offences he was charged with, his right to be tried within a reasonable time and his right to disclosure, under Charter ss. 11(a), 11(b) and 7, were all violated. He sought a stay of proceedings under s. 24(1). The application judge, Justice Colin C.J. Feasby, held that s. 11(a) was violated because there was “no sufficient reason” for the 5 1/2 year delay in providing Mr. El-Ajami with details of the specific offences. His right to disclosure under s. 7 was also breached “by the Crown’s failure to provide him with the non-sensitive information in the disclosure package”.
However, on the issue whether Mr. El-Ajami’s right to trial within a reasonable time was breached, Justice Feasby concluded that the logic of R. v. Steadman was applicable where the Alberta Court of Appeal held that “delay related to an offender being in an extraditable country would not count unless the Canadian authorities failed to act reasonably to seek extradition.” (here) The authorities in this case could not seek extradition because there was no treaty between Canada and Lebanon. “The logic of categorizing delay as extraordinary circumstances for the accused being out of the country in Steadman applies a fortiori when the accused is in a country with which Canada has no extradition treaty,” Justice Feasby said.
In the analysis of the disclosure violation, Justice Feasby emphasized that the Crown’s refusal to provide disclosure because Mr. El-Ajami was outside Canada was consistent with the policy contained in the PPSC Deskbook. (here) That, however, did not excuse the Charter breach. “[T]o the contrary,” Justice Feasby said, “it indicates that it is a systemic not individual issue.” The Crown’s policy to deny disclosure to defendants outside the country and the police refusal to provide details of the charges for the same reason, “reflect[ed] an approach or attitude that undermine[d] the integrity of the justice system.” However, on the question whether the case fit the residual category in R. v. Babos, Justice Feasby held that he was bound by the opinion of the Alberta Court of Appeal in R. v. Reilly where it was held that granting a stay of proceedings for a systemic problem should address the systemic problem. “A stay of proceedings in the present case would do nothing to fix the systemic problems that I have identified,” he concluded. (here and here)
4. The Right to be Notified of the Offence Without Unreasonable Delay
Section 11(a) of the Charter provides that, “[a]ny person charged with an offence has the right to be informed without unreasonable delay of the specific offence.” The right has two aspects: (a) the right to information about the specific offence with which a defendant is charged; and, (b) the right to that information without unreasonable delay. (here) Justice Feasby concluded that the information mandated by s. 11(a) was finally provided to Mr. El-Ajami when his lawyer received disclosure on June 4, 2021. The total period of delay was 5 1/2 years which “far exceeded any conception of what is reasonable”.
Justice Feasby drew upon Supreme Court of Canada jurisprudence under Charter s. 10(a) for “clues” about the meaning of the information component of s. 11(a). He concluded that the primary purpose of s. 11(a) is to “protect the ability of an accused to make informed decisions in the aftermath of being charged.” The kinds of informed decision making protected by the right include: (1) retaining and instructing counsel; (2) negotiating resolution; (3) ordering personal affairs; and, (4) deciding whether to submit to arrest in cases where a defendant has not been arrested. The meaning of the right, “must be determined using this primary purpose rather than the more remote or abstract secondary purposes such as the right to make full answer and defence or ensuring trial fairness.”
Justice Feasby held that a modified version of the factors developed by the Supreme Court of Canada in R. v. Morin is appropriate for analyzing whether delay is unreasonable for s. 11(a) purposes. The Morin approach, reversed in R. v. Jordan for the purposes of Charter s. 11(b), “lives on zombie-like” in the context of s. 11(a). Based on a textual analysis, an unreasonable delay is one that is not justified by reason. And since we are dealing with a constitutional right, it may be inferred that what is required is sufficient reason. In considering whether s. 11(a) has been violated, “the sufficiency of the justification for delay must be a focus of the analysis.” Although the words “without undue delay” in s. 11(a) suggest less urgency than the word “promptly” in s. 10(a), the purposes of s. 11(a) indicate that the provision of information “should occur within a short period of time following charging.” Where, as in this case, the police were in contact with the defendant, s. 11(a) requires notice of the specific offences charged to be provided “rapidly” as stated by the Supreme Court of Canada in R. v. Delaronde. (here)
The case law under s. 11(a) treats prejudice to the defendant as a requirement for establishing a breach. This drags into constitutional law the dangerous playground basketball concept of “no harm, no foul.” But, as Justice Feasby put it, “[w]hatever merit there may be in the no harm, no foul principle on the playground, it is antithetical to the concept of a constitutional right.” Justice Feasby went on to hold that the absence of prejudice flowing from a Charter breach is an appropriate consideration in determining whether a remedy is required. “To find that there is no breach because there is no prejudice is different than finding that there is no remedy because there is no prejudice,” he said. “A finding of an infringement of a Charter right has meaning and value independent of the question of remedy.”
There is nothing in the text of the Charter that says a right can only be asserted where there is prejudice. Analytical “coherence and consistency” require that consideration of prejudice be removed from the determination of a Charter breach and confined to the question of remedy as the Supreme Court of Canada held over twenty-five years ago in R. v. Carosella. (here) Section 11(a) is not a “special exception” where prejudice plays a virtually dispositive role in the analysis of rights infringement. Restricting consideration of prejudice to the remedy analysis has the added benefit of eliminating duplication. “Looking at the question of prejudice once,” Justice Feasby concluded, “makes for a more coherent and manageable analytical framework.”
I will conclude by returning to Justice Feasby’s discussion of Reilly and the opinion of the Alberta Court of Appeal that remedies must be directed at harm and a stay that is “baldly denunciatory” does nothing to address or correct the systemic problems that motivated it and therefore does nothing positive to preserve the integrity of the justice system. The finding of Judge Renée Cochard in the Alberta Provincial Court who granted the stay of proceedings was that the state had been routinely over-holding accused persons more than twenty-four hours contrary to s. 503(1) of the Criminal Code. Judge Cochard held that the over-holding was an arbitrary detention in violation of Charter s. 9. The Charter violation was systemic, ongoing and egregious warranting a stay of proceedings. (here) It is important to emphasize that the Alberta Court of Appeal was reversed by a unanimous nine member panel of the Supreme Court of Canada because there was no basis to interfere with Judge Cochard’s exercise of discretion. (here) Justice Feasby may well have reached a different conclusion whether a stay was required to uphold the integrity of the justice system had he realized he was not bound by the Alberta Court of Appeal.