Police mistakes lead to child luring charges being dismissed

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

Rosie Mullaley rmullaley@thetelegram.com
Published on January 19, 2016

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