Police mistakes lead to child luring charges being dismissed

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Rosie Mullaley
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Lead investigator gave misleading information in obtaining evidence, search warrant, judge rules

Mistakes by the investigating police officer in St. John’s have resulted in child-luring charges being dropped against an Alberta man.

Two counts of child luring were dismissed in the case of Mohamed Elseify Tuesday at provincial court in St. John’s.

Prosecutor Jennifer Colford told Judge Colin Flynn the Crown would call no evidence in light of his recent decision to exclude key evidence in the case.

Without such evidence, the Crown had no case.

About two weeks ago, Flynn ruled that the lead RNC investigator breached Elseify’s charter rights by deliberately deceiving Bell Aliant in obtaining the subscriber’s information from his computer. As a result, the officer also breached Elseify’s rights in obtaining a search warrant to search his house and computers, Flynn concluded.

“The actions or inactions are at the high end of inappropriate state conduct,” Flynn said in his written decision at the time.

Flynn said the infringement of Elseify’s rights were “profoundly intrusive.”

Elseify, 38, was taken into custody in February 2014 after an RNC officer, posing as a 14-year-old girl on the Craigslist website between Jan. 21 and 31, found Elseify was trying to convince the “teen” to meet him face to face after responding to the ad.

However, before the meeting, Elseify sent the “teen” a message, stating he didn’t know if the girl was 14 or not. He apologized and called off the meeting.

The officer knew little about Elseify, except the IP address of the computer. The officer then made a law-enforcement request to Bell Aliant for subscriber information. Bell Aliant Corporate Security first denied the request, stating it requires a production order.

The company only agreed when the officer insisted there were exigent circumstances and that a child was in danger.

“Time is of the essence to identify a suspect where he is looking to meet a child for a sexual purpose,” the officer wrote in the message.

But Flynn pointed out that not only was there no child (it was the officer posing as the child), the meeting had been called off.

The judge had harsh words about the investigator’s questionable methods.

“(It) was a totally misleading assertion, and it is, in my view, that investigating officer knew the information provided to the carrier was not correct,” Flynn said.

“The further failure to inform the carrier that the meeting between the subscriber and the fictitious young person was off was, at best, negligent, and at the most, intentional.

“In either case, it does show a failure of the investigator to take care to perform his duties in an open and transparent manner.”

Since the officer also wasn’t truthful with the judge, regarding the manner in which the subscriber information was obtained, Flynn ruled the search warrant was also a breach of Elseify’s rights.

“This was a flagrant violation of the investigator’s obligation as affiant to be open and frank with the justice,” he said.

He went on to say, “In one’s own home, there is the highest expectation of privacy.”

The search of Elseify’s personal computer — in which he had personal information — was also a serious breach of his rights, Flynn added.

Citing case law, Flynn warned that police officers should not be so intent in their truth-seeking goals that they undermine charter rights.

Defence lawyer Rosellen Sullivan, who filed the charter breach application, said the judge came to the right conclusion.

“This is an excellent decision,” Sullivan later told The Telegram.

“It is a perfect example of the court distancing itself from conduct of the police that brings the administration of justice into disrepute. The purpose of Section 24 of the Charter is to look at the long-term effect on the justice system.

“And it’s my job as a defence lawyer to ensure that the police conduct themselves in a manner that protects the rights of Canadian citizens.”

Elseify — who has been out on bail since shortly after his arrest and wasn’t in court Tuesday — is originally from Egypt, but lives in Calgary. At the time of his arrest, he was in St. John’s working on contract.

Sullivan said Elseify is relieved the charges were dropped, as it has been a very stressful few years.

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Mistakes by the investigating police officer in St. John's have resulted in child luring charges being dropped against an Alberta man.

Two counts of child luring were dismissed in the case of Mohamed Elseify today at provincial court in St. John's.

Prosecutor Jennifer Colford told Judge Colin Flynn that the Crown would be calling no evidence in light of his recent decision to exclude key evidence in the case.

About two weeks ago, Flynn ruled that the lead RNC investigator breached Elseify's Charter of Rights, as he deliberately deceived Bell Aliant in obtaining the subscriber's information from his computer. As a result, the officer also breached Elseify's rights in obtaining a search warrant to search his house and computers, Flynn concluded.

The application was filed by defence lawyer Rosellen Sullivan.

"This is an excellent decision," Sullivan told The Telegram outside court today.

"It is a perfect example of the court distancing itself from conduct of the police that brings the administration of justice into disrepute. The purpose of Section 24 of the Charter is to look at the long-term effect on the justice system.

"And it's my job as a defence lawyer to ensure that the police conduct themselves in a manner that protects the rights of Canadian citizens."

Elseify, 38, was taken into custody in February 2014 after a police officer, posing as a teenage girl on the Craigslist website between Jan. 21 and 31, found Elseify was trying to convince the “teen” to meet him face to face.

He was released on bail shortly after his arrest.

Elseify — who wasn't in court today — is originally from Egypt, but lives in Calgary. At the time, he was in St. John's working on contract.

Sullivan said Elseify is relieved the charges were dropped, as it's been a very stressful few years.

rmullaley@thetelegram.com Twitter: TelyCourt

Organizations: Bell Aliant, Craigslist

Geographic location: Egypt, Calgary, St. John's

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Comments

Comments

Recent comments

  • newsflash
    January 21, 2016 - 00:28

    These are not mistakes! Call it like it is, as the judge did. These were deliberate actions to mislead and these actions are against the law. Mistakes... you make it sound like they forgot to date the form correctly.

  • coaster
    January 20, 2016 - 08:15

    Police mistakes lead to child luring charges being dismissed, Mrs.Mullaley perhaps you should get closer to the actual truth. Police caught lying and guilty of deception lead to charges being dismissed!!

  • Yikes
    January 19, 2016 - 22:49

    Is it not entrapment for the RNC officer to create a situation that doesn't exist and try and lure someone into committing a crime in the first place?? There is no child.. Who knows if this person would ever have committed any actual crime..

    • Vern
      January 20, 2016 - 08:01

      I dunno, I have never arranged to meet a 14-year-old in a hotel room for sex. How do you argue entrapment? The undercover cop made sex with a child sound too irresistible? Give your head a shake.

  • Health professional
    January 19, 2016 - 13:01

    I'm not sure how many of you have experience dealing with cases such as these, but one thing we know for sure is we'll never know all the details of the situation. In my experience as a health care professional, confidentiality is essential but the current laws are outdated in dealing with this type of situation on the Internet. Nurse K

    • Agree
      January 19, 2016 - 15:47

      Health Professional, I agree with you. I too work as a health care professional and understand your point. Many people like the posters here do not have the experience dealing with matters that come under this confidentiality umbrella. The laws are outdated and in some areas, prevent work from being done or prevent people from doing their job. However, from the article, without this disallowed evidence, what else was there?? To me, while the headline says a mistake, was it? Or was it a case of modern day crimes being tried on outdated laws?

    • newsflash
      January 21, 2016 - 00:32

      I like how two people in the health profession are saying that commenters they don't know anything about have no experience with what this story is about. So tell me Health Professionals, how many production orders have you completed to get an IP Address. Yeh, that's what I thought. Police get Production Orders ALL the time... this is a case of pure laziness. Any cop that does their job will tell you the same.

  • Mr Questions
    January 19, 2016 - 10:53

    Lots of questions here. Did the officer have permission to operate the sting operation from his manager or chief? Why did Bell Aliant dislike personal info on iffy info pertaining to a search warrant? Why is the police officer's name not published yet the man in question here is?

  • Ken Kavanagh
    January 19, 2016 - 10:30

    Yet another case of the RNC incompetence and wrongful administration of justice. Once again, there are two victims: a child who allegedly was lured and the alleged perpetrator. What is happening to the RNC? Just in the past few days, we have learned that it is the subject of a criminal probe by an outside agency called SIRT. What does the Police Chief do in response to this investigation, ordered by the Justice Minister? He goes to court to get a temporary injunction to prevent the CBC from publishing the story. Thankfully, the judge lifted the ban the very next day. Minister Parsons said he ordered the investigation in the interest of the public's confidence in the province's administration of justice. If Minister Parson's was indirectly referring to the public's confidence in the RNC, I think that ship has sailed. I think it is time for a major shakeup in its leadership team and obviously a major change in the culture and conduct. Ken Kavanagh Bell Island

    • Will
      January 19, 2016 - 11:15

      In fairness to all involved , one has absolutely nothing to do with the other !

  • Will
    January 19, 2016 - 09:48

    Yip, another potential sex offender set free, just great...on a technicality!!!

    • Errol
      January 19, 2016 - 11:21

      Not a technicality at all. Just more RNC incompetence.

    • Dontjudge
      January 19, 2016 - 11:33

      @Will - You have no idea if he's guilty of this and it's wrong for you to assume. You do not have the facts in detail. I've been down this road with a family member, who was innocent of accusations such as these and this person had a mental breakdown because of judgmental people like you.

    • Dontjudge
      January 19, 2016 - 11:33

      @Will - You have no idea if he's guilty of this and it's wrong for you to assume. You do not have the facts in detail. I've been down this road with a family member, who was innocent of accusations such as these and this person had a mental breakdown because of judgmental people like you.

    • Bill
      January 19, 2016 - 15:57

      Yip & another potentially innocent person having their lives torn apart. It's time people accused of these sorts of crimes not have their lives & families lives turned upside down without a conviction. Any of us can make an accusation but that doesn't make it true. It looks like we can't trust the police to do a fair job either. The RNC are looking more all the time like a police force out of control.