The right of all Canadians to be secure against unreasonable search and seizure protects the right to privacy from unjustified state intrusion. The purpose of the right requires that unjustified searches be prevented before they happen and not merely condemned after the fact. This can only be accomplished by a requirement of prior judicial authorization which is a precondition for a valid search and seizure. But what is the result when the police discover during a search that a warrant is invalid on its face because it authorized a search for a longer time than permitted by a statutory limitation period? Does it make a difference that the police finished the search within the statutory limitation period even though the warrant exceeded it? A King’s Bench judge in Calgary, Alberta, has recently affirmed that a continued search based on a facially invalid warrant is unreasonable and cannot be saved by the doctrine of severance.

1. Introduction

On November 20, 2023, the ongoing trial of Mohamed Najie El-Ajami began in the Court of King’s Bench of Alberta, at Calgary, Alberta. Mr. El-Ajami is charged in a nine count indictment that includes charges of conspiracy to traffic cocaine, fentanyl and methamphetamine. The case has generated two important rulings under the Charter of Rights and Freedoms. In my last post to On The Wire I discussed a pre-trial motion in which an application judge held that Mr. El-Ajami’s right to be informed without unreasonable delay of the specific offences he was charged with under s. 11(a) of the Charter was violated. (here) In this post I will discuss a ruling of the trial judge released on January 12, 2024, that Mr. El-Ajami’s right to be secure against unreasonable search and seizure under s. 8 of the Charter was violated. (here) It is an opportunity to consider the rarely litigated doctrine of severance in the context of a tracking device warrant that exceeded the statutory limitation period by one day.

2. Background

On April 3, 2015, a tracking device warrant was issued by a justice of the peace under s. 492.1(2) of the Criminal Code that authorized the Calgary Police Service to obtain tracking data of Mr. El-Ajami’s mobile telephone. The period of validity is defined in s. 492.1(5) as “no more than 6o days after the day on which the warrant is issued.” The warrant, however, was granted for sixty-one days from April 3, 2015, to June 2, 2015. From April 3, 2015, to April 6, 2015, the police received data pursuant to the warrant. On April 6, 2015, a detective told two investigators in an email that the warrant had been issued for sixty-one days. “[I]f you used it over the weekend and got any evidence I wouldn’t worry too much about it,” he said. “[B]ut if you are planning on using it in the future you should go get a new order.” The tracker authorized by the “initial warrant” continued to acquire data until April 7, 2015, when the police obtained a “subsequent warrant” for sixty days from April 7, 2015, to June 5, 2015.

Mr. El-Ajami argued that his rights under s. 8 of the Charter were violated when the police obtained the initial warrant that was “facially invalid” because it purported to be for a period of sixty-one days. When the investigators were advised that the initial warrant was defective, it could no longer be assumed to be valid, and the police could not rely on the presumption of regularity. The police should have immediately ceased relying on the initial warrant until a new one was issued. The Crown took the position that a Charter violation did not occur because the date was corrected within the term of the initial warrant. To the extent that an issue existed concerning the initial warrant, the Crown asserted that the extra day could be severed from the warrant.

3. The Doctrine of Severance

The rule may be simply stated. The valid portions of a judge’s order, if severable from the invalid portions, remain valid notwithstanding the existence of the invalid portions. In R. v. Braithwaite, the Alberta Court of Appeal affirmed its decision in R. v. Munroe citing The Law of Electronic Surveillance in Canada (1979) where Justice David Watt suggested the severance doctrine could be invoked “for all ‘formal’ defects and also for ‘substantial’ defects unless ‘there is any nexus between the substantive defect or irregularity and the primary evidence sought to be adduced’.” (here) However, the Munroe court was “not certain” that Justice Watt’s proposal “varie[d] significantly from the traditional severance rule, which requires that the reviewing court only excise that which can be excised.” (here) In R. v. Grabowski, the doctrine was confirmed by the Supreme Court of Canada, in the context of a wiretap authorization, where it was held that an authorization can be divided, and a valid portion preserved, where “there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated’.” (here)

In R. v. Yong and R. v. Chrisanthopoulos, the Alberta Court of Queen’s Bench and the Newfoundland and Labrador Supreme Court considered a tracking device warrant and a wiretap authorization, respectively, that were both granted for sixty-one days. In Yong, it was held that the error was unintentional and the “police acted upon the Tracking Warrant well prior to the expiry date.” In obiter dicta the court went on to say that, “[h]ad it been necessary, I would have exercised a power to sever the non-compliant expiry date in the Warrant.” (here) In Chrisanthopoulos, the private communication in issue was intercepted on the sixtieth day and, in applying Braithwaite and Grabowski, it was held that the extra day in the authorization could be severed and the time frame then complied with the statutory requirement. (here)

4. The Ruling

In concluding that the initial warrant violated Mr. El-Ajami’s rights under s. 8 of the Charter, Justice M.H. Bourque first noted that both Yong and Chrisanthopoulos were factually distinguishable in that the noncompliance with the sixty day limitation period in the Code was not known until after the warrants had expired. In Chrisanthopoulos, the police officer gave evidence of his belief that he was acting under the authority of a valid authorization. In Yong, the error was realized during cross-examination of the detective who swore the Information to Obtain the tracking warrant. And, in the two wiretap cases, Braithwaite and Grabowski, the doctrine of severance arose in relation to interceptions under the ostensible authority of a valid authorization. Justice Bourque therefore concluded, “[i]n cases where the error is only discovered after the fact, the Court may rely on the doctrine of severance to retain the valid portions of an order.” However, in the El-Ajami investigation, the police knew of the date error during the currency of the initial warrant but continued acquiring the tracking data knowing it was done without a valid warrant.

Relying upon analogous circumstances in R. v. Ader and R. v. Ting, Justice Bourque found that the facial invalidity of the initial warrant came to light during the investigation. (here and here) “While the doctrine of severance may assist in addressing historical defects once they come to light,” he said, “I find its use to be somewhat artificial when applied retroactively to justify defects known to the state while the investigation was ongoing.” The police were aware of the invalidity of the tracking warrant from the email sent by the detective who told the investigators, “if you are planning on using it in the future you should go get a new order.” Yet, the police continued to acquire tracking data under the invalid warrant until the subsequent warrant was issued.

Justice Bourque placed significant reliance on the opinion of the Ontario Court of Appeal in Ting that considered the impact of a continued search under an invalid warrant. The police entered a multi-unit building with a search warrant through a basement apartment which they mistook for an entrance to a landing that would lead to the target apartment named in the warrant. When they entered the basement, they realized it was not a landing but a separate apartment. However, drugs were in plain view so they continued the search for an hour and forty minutes before pausing to obtain a separate warrant to search the basement suite. The Ontario Court of Appeal affirmed the finding of the trial judge that the continued search violated Ms. Ting’s rights under s. 8 of the Charter and an order for exclusion of evidence under s. 24(2) of the Charter was upheld.

The issue triggered by the invalid El-Ajami tracking warrant was not limited to the facial validity of the initial warrant. “Rather, the larger concern arises when, determining they were operating under the invalid Initial Warrant, police continued their search (here, the continued tracking under the ‘authority’ of the Initial warrant),” Justice Bourque said. The police should have immediately ceased any further tracking until they received the subsequent warrant. The Crown’s argument that any concerns were negated because the police obtained the subsequent warrant within the valid portion of the initial warrant was problematic. Similar to Ting, Justice Bourque found the police were not entitled to continue tracking under a facially invalid warrant until such time as the subsequent warrant was issued and he went on to infer that the violation of Mr. El-Ajami’s s. 8 rights during the period between the detective’s email and the issuance of the subsequent warrant was deliberate.

5. Conclusion

The Crown has indicated to the court that it will not tender evidence obtained by the implementation of either tracking warrant. It is a tactic often resorted to by prosecutors as a kind of shock absorber on Charter violations. There are, now, two violations in this case – the s. 8 violation discussed here and the violation of s. 11(a) discussed in my previous post. Although multiple Charter violations are an important factor on remedy, the option of an evidence exclusion motion under s. 24(2) of the Charter evaporates when the Crown does not adduce the tainted evidence at trial. The defendant must then turn to other remedies under s. 24(1) such as an application for a stay of proceedings. A stay application, even in cases of multiple violations, must clear a high bar to succeed. A stay of proceedings is reserved for “rare occasions” and the “clearest of cases” in Canadian constitutional law.