COURT OF APPEAL FOR ONTARIO
Judges: MacPherson, George and Rahman JJ.A.
BETWEEN
His Majesty the King Respondent
and
Zhuxi Xi Shen Appellant
Counsel:
- Brian H. Greenspan and Michelle M. Biddulph, for the appellant
- James Clark, for the respondent
Heard: June 4, 2025
On appeal from: The conviction entered by Justice Nancy J. Spies of the Superior Court of Justice on May 23, 2023, with reasons at 2023 ONSC 2943, and from the sentence imposed on February 23, 2024, with reasons reported at 2024 ONSC 1074.
REASONS FOR DECISION
A. Overview
1The appellant appeals his conviction and sentence for sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. In September 2019, the appellant was charged with sexual assault and administering a noxious substance. The latter charge was withdrawn later that year. In June 2022, the appellant was tried by a judge and jury on the single count of sexual assault, which resulted in a hung jury. The appellant was then tried before the trial judge, who found that he sexually assaulted the complainant twice.
B. Facts
2The appellant spent time with the complainant, I.F., and her friend at a nightclub in Toronto during the evening of September 14, 2019 and into the early morning hours of September 15, 2019. While at the club, the appellant's friend invited I.F. and her friend to join their private table for drinks. During the evening, I.F. consumed two alcoholic drinks. After finishing her drink at the appellant's urging, I.F. blacked out. She had very little memory of any other events until she woke up in the morning in a hotel room bed, save for two brief memories. The first was her head feeling heavy and a man pouring vodka into her mouth. The second was a memory of waking up after feeling a sharp pain in her vaginal area and her trying to push a man off of her body.
3Security video from the nightclub and the hotel furnished evidence of I.F. leaving the nightclub and arriving at the hotel. Security video from the nightclub showed I.F. getting into the appellant's Rolls Royce with another male and female. The Rolls Royce ultimately arrived at the Westin Prince Hotel almost two hours later. Security video from the hotel showed the appellant and another man taking I.F. out of the car and bringing her into the hotel. I.F. could not walk into the hotel on her own and the appellant, with the other man's help, essentially carried and dragged her into the hotel and to the elevator.
4I.F. woke up the next morning in bed next to the appellant. Neither were wearing any clothing. I.F. had pain in her vaginal area and thighs. She was wet in her vaginal area and there was no sign of any contraceptive packaging, which led I.F. to believe that the appellant ejaculated inside her during the night. While I.F. tried to find a ride home, the appellant grabbed her by the hand, pushed her towards him, and had unprotected forced vaginal intercourse with her again.
5The appellant did not testify in his defence. He did not take issue that he had sexual intercourse with I.F. His DNA was found in I.F.'s vagina and anus. His position was that any sexual intercourse was consensual.
C. Decisions Below
(1) The Conviction
6The trial judge accepted I.F.'s testimony and found that the appellant sexually assaulted her twice by having non-consensual intercourse. The appellant committed the first sexual assault while I.F. was unconscious and lacked the capacity to consent. He committed the second assault while I.F. was conscious but did not consent. The trial judge convicted the appellant of one count of sexual assault.
7In finding that the first assault took place, the trial judge relied on a video recovered from the appellant's phone (the "Hotel Video"). The trial judge found that, along with other evidence depicting I.F.'s state, the Hotel Video revealed that I.F. was unconscious while the appellant was removing her clothing and kissing her. The trial judge ultimately found that the appellant forced intercourse on I.F. while she was unconscious based on her brief memory of having a sharp pain in her vaginal area and trying to push the appellant off of her.
(2) Post-Conviction Applications
8After the verdict, but before his sentencing hearing, the appellant fired his trial counsel and hired a new lawyer. On the day set for his sentencing hearing, the appellant's new lawyer requested an adjournment so that the appellant could apply to re-open the trial because of alleged non-disclosure by the Crown. Although the Crown had disclosed the warrant to search the appellant's phone, the Crown had not disclosed the information to obtain ("ITO") that warrant. The trial judge granted the appellant an adjournment to obtain the ITO. The appellant then brought an application pursuant to the Canadian Charter of Rights and Freedoms to challenge the search of his phone and exclude the Hotel Video that had been obtained from the phone. He also brought a related mistrial application because of the Crown's failure to provide him with the ITO and because exclusion of the evidence would necessarily affect the guilty verdict.
9The trial judge heard both the mistrial and Charter applications to exclude the evidence: see R. v. Shen, 2023 ONSC 6692. The appellant's Charter application did not challenge the issuance of the warrant, but rather focused on the manner in which the police searched his cell phone. Specifically, the search was a s. 8 breach of the appellant's Charter rights because a plain reading of the warrant only authorized the extraction of photos from the appellant's phone, not videos. The Crown disputed these positions.
10The appellant also applied for a mistrial on the ground that his s. 7 Charter right to a fair trial had been violated because of the Crown's inadvertent late disclosure of the ITO. He also argued that, if the trial judge found there was a breach of the appellant's s. 7 rights, the only remedy capable of ameliorating the prejudice caused by the late disclosure of the ITO would be a mistrial.
11The trial judge dismissed the applications. The trial judge found that, even if the appellant's s. 7 rights had been breached by the Crown's failure to disclose the ITO, the appropriate next step was to hear the s. 8 Charter application on its merits. In other words, if the trial judge found that the Hotel Video should not be excluded, then the appellant was not entitled to any further remedy. If the opposite was true, then the trial judge would consider what remedy would be appropriate.
12Subsequently, the trial judge dismissed the appellant's s. 8 Charter application, finding that the police's search of his cell phone did not exceed the scope of the warrant. She concluded that the police were entitled to search the videos on the appellant's cell phone because videos fell within the categories of communications and photographs. The trial judge also rejected the appellant's claim that the police indiscriminately scoured his cell phone. She accepted that the search of the phone was done in good faith, and that the police only searched for evidence of the offences and did so within the broad categories set out in the warrant.
13Having found no breach of s. 8, the trial judge concluded that there was no breach of the appellant's s. 7 rights. The trial judge went on to make an alternative finding that, even if she had excluded the Hotel Video, she would still have found the appellant guilty, because she did not need the Hotel Video to make the essential findings of fact upon which the verdict was based.
(3) The Sentence
14The trial judge sentenced the appellant to 49 months imprisonment, less 467 days of pre-sentence custody, resulting in a net sentence of approximately 34 months. The trial judge determined that the appellant was entitled to Downes credit for the time he spent on restrictive bail conditions and Duncan credit for the conditions of his pre-trial detention. Although the trial judge said that she was not adopting a formulaic approach to the mitigation for Downes and Duncan credit, her ultimate sentence reflected a five-month discount from the four-and-a-half-year sentence that she said would have been fit.
D. Grounds of Appeal
15The appellant raises three grounds of appeal. First, the trial judge erred in finding no breach of s. 8 of the Charter with respect to the overbroad search of the appellant's cell phone. Second, the trial judge erred in finding no breach of s. 7 of the Charter based on the non-disclosure of the ITO and in minimizing the materiality of the Hotel Video in her decision to convict. Third, the trial judge erred in principle by failing to grant sufficient sentencing credit for harsh conditions in pre-sentence custody.
16The appellant also alleged that the trial judge erred in dismissing successive s. 11(b) Charter applications, but this ground of appeal was later abandoned.
E. Analysis
17The appellant has not established either a ss. 7 or 8 breach. Nor is there any basis to interfere with the sentence imposed.
18We first address the alleged s. 8 breach. We do not agree that the search of the appellant's cell phone went outside the scope of the warrant. There was an evidentiary basis for the trial judge's finding that the video fell within the definition of a "communication." [2] The evidence on the application established that chat-based applications are capable of taking and storing pictures and videos. Therefore, there was nothing inappropriate about the search of video files.
19As for the broader search of the appellant's cell phone, we do not agree with the appellant that it constituted an "indiscriminate scouring" of his cell phone. D.C. Lam, the detective tasked with reviewing the information extracted from the appellant's cell phone, conducted the broader search after having found the Hotel Video and other relevant evidence from the cell phone's videos, pictures, and emails. It was reasonable for D.C. Lam to continue searching other areas of the cell phone. Significantly, D.C. Morden testified that, because of the inconsistency in the timestamps among different applications, filtering a search by date could exclude relevant evidence.
20The trial judge found as a fact that D.C. Lam made a good faith effort to limit his search to evidence related to the offences in the warrant. She also found that there was no evidence that D.C. Lam "did anything more than look at the data on the iPhone in a cursory fashion to determine if it was evidence of the offences the police were investigating" when he did his final examination of the cell phone. The trial judge also found that "there was no way for D.C. Lam to limit his search in any way…if he wanted to be sure that he did not miss any data that was within the scope of the Warrant." The trial judge's factual findings were open to her based on the police officers' testimony and there is no basis for this court to interfere with them.
21As there was no s. 8 breach, the appellant's claim that he was entitled to a mistrial because of a s. 7 breach must also fail. Even assuming that there was a s. 7 breach here, the trial judge granted the appropriate remedy. She granted the appellant an adjournment to examine the ITO and permitted him to bring a Charter application. It is unclear how any non-disclosure materially prejudiced the appellant's right to make full answer and defence since he was allowed to bring a s. 8 Charter application after examining the ITO. The Charter application that the appellant ultimately brought did not even rely on the undisclosed ITO. Indeed, once it became clear that the appellant's Charter application relied only on material that he had before the trial started, the trial judge could have refused to hear the s. 8 application. There is no dispute that the appellant had everything he needed to bring his s. 8 application before trial. The trial judge allowed the appellant to bring a post-verdict Charter application that should properly have been brought as a pre-trial application. It is difficult to see how granting the appellant this indulgence impaired the appellant's right to make full answer and defence.
22Additionally, the appellant's claim that timely receipt of the ITO may have impacted his electing to have a judge-alone trial is difficult to understand since his Charter application did not rely on the ITO, and the Hotel Video was not excluded. In the circumstances, the late disclosure of the ITO could not have affected the fairness of the trial process by influencing his election.
23Finally, we see no merit in the appellant's claim that the trial judge erred in not giving him sufficient Duncan credit for the conditions of his pre-sentence custody. The trial judge thoroughly reviewed and considered the appellant's medical issues in custody. Although she did not separately attribute a specific number of months to Downes and Duncan credit, it is clear that the appellant received mitigation for both. We see no basis to reduce the appellant's sentence any further.
24The conviction and sentence appeals are dismissed.
J.C. MacPherson J.A.
J. George J.A.
M. Rahman J.A.
Footnotes
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
2In upholding this finding, we should not be taken as endorsing the trial judge's reliance on CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, as support for taking a "liberal and purposeful interpretation to the terms of the warrant."