WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: February 20, 2024
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JULIANNA FODOR
Before: Justice Michael Waby Heard on: March 6, 8, April 26, 27, May 15, 31, June 2, 20, 26, July 19, August 17, 18 20, November 3, 7, and December 8, 2023. Reasons for Decision released on: February 20, 2024
Counsel: M. Gharabaway.............................................................. Counsel for the Crown B. Bytensky................................................................ Counsel for the Accused
Waby, M. J.:
Introduction
[1] Julianna Fodor is charged with the following three offences: Exercise Control for the purpose of Sexual Services, Advertise Sexual Services and Receive Material Benefit from Sexual Services. The offences are alleged to have occurred between March 7, 2020 and June 27, 2020.
[2] It is alleged that the Accused committed these offences in respect of LSJ. Ms. LSJ is deceased and Ms. Fodor’s partner, Soreeysa Abdi, was recently found guilty of her murder. Ms. Fodor is not alleged to have been a party to the homicide in any way and is before me solely on the foregoing Human Trafficking charges.
[3] This trial was originally scheduled to take three days. Following 14 separate dates, spanning 10 months, evidence and submissions were finally completed on this trial and its related Applications on 8th December, 2023.
[4] The following are my decisions with respect to the Applications brought by counsel for Ms. Fodor as well as my judgment on the trial itself.
i. Further and renewed submissions under s. 24(2) of the Charter following an application by Defence counsel to re-open a previous Charter ruling made by me on this trial as well as submissions on a supplementary Charter argument now raised by Defence counsel.
ii. The issue of standing on a s. 8 Charter argument raised on behalf of Ms. Fodor in respect of electronic financial transactions between Ms. LSJ and the Accused.
iii. My judgment following the completion of all of the evidence and submissions in Ms. Fodor’s trial.
iv. A renewed 11(b) Application on behalf of the Accused.
[5] Defence Application to re-open my previous Charter ruling and supplementary argument.
[6] Prior to the scheduled start of this trial on 23rd April, 2023 counsel for the Accused, filed materials alleging a number of breaches of Ms. Fodor’s Charter rights and seeking a stay of proceedings, or in the alternative, seeking the exclusion of certain items of evidence. The matter was scheduled before me on 7th and 8th March, 2023 to hear submissions on the alleged Charter breaches in advance of the trial. Prior to making submissions, Mr. Bytensky indicated that he was substantially modifying his original Charter Application and he sought to primarily focus his submissions in respect of alleged s. 8 breaches of the Accused Charter rights as they related to the search and seizure of a USB device and Ms. Fodor’s purse and its contents.
[7] On 12th April, 2023, I provided my Charter ruling to counsel in respect of this Charter application. I did not find that the search and seizure of Ms. Fodor’s purse and its contents was unreasonable and accordingly, I did not find that there was a breach of Ms. Fodor’s s. 8 Charter rights in this respect and this evidence was admitted at trial.
[8] I did find that there was a breach of Ms. Fodor’s s.8 Charter rights in respect of the seizure of the USB device, however, I subsequently admitted this significant piece of real evidence following my 24 (2) analysis and my consideration of the three factors articulated in R. v. Grant.
[9] Subsequent to this Charter ruling, 26th June, 2023, defence counsel filed written materials and sought leave to reopen my ruling based on three separate issues;
i. The alleged receipt of new information that would impact the Court’s original 24(2) analysis. Namely the date in March, 2021 on which Detective Constable Emptage reviewed the contents of the USB drive that was seized;
ii. The Court’s alleged misapprehension of evidence. This was predicated on an error contained in my Charter ruling of 12th April which erroneously included reference to a date in March, rather than September 2021 as the month in which police officers sought/obtained the search warrant for the USB stick.
iii. Thirdly, defence counsel now seeks to address an issue that was not previously raised by counsel, namely that my finding that the USB stick was seized in breach of s.8 of the Charter should result in the USB being excised from the information that was considered by the issuing jurist and the original ITO in respect of the Production Orders for Accused’s bank records. Accordingly, Defence counsel sought leave to argue this issue and to submit that this then gave rise to the requirement of a fresh and renewed 24(2) analysis by the Court.
[10] A trial judge has inherent jurisdiction to reconsider or revisit previous rulings made at trial, but as the Supreme Court stated in Adams, an order relating to the conduct of a trial can only be varied or revoked if the circumstances have materially changed.
- R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319 at para. 123
- R. v. Adams, [1995] 4 S.C.R. 707 at paras. 30-31
- R. v. R.V., 2019 SCC 41, [2019] S.C.J. No. 41 at paras. 74-76
[11] In R. v. Adams, the Supreme Court of Canada dealt with the question of when a judge could reconsider a previous order made in the course of a trial. The order in that case was the lifting of a publication ban. The Court concluded that a judge has the jurisdiction to reconsider previous rulings in rare instances if they are not functus.
[12] As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time of the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.
[13] The principles in Adams balance finality and flexibility even when the court is not functus officio, by permitting the reconsideration of orders where there has been a material change of circumstances.
- R. v. Slastukin, [2023] S.J. No. 165 at paras. 21-22.
[14] A trial judge may permit the reopening of the evidence at any time before sentence is passed: R. v. Lessard, [1976] O.J. No. 74 (C.A.) at para. 12. This includes reopening after the Court has already made a finding of guilt, as long as sentencing has not yet occurred. Where an application to reopen the evidence is made following conviction, the test is an adapted Palmer test, which relates to the admissibility of fresh evidence on appeal. However, where the application to reopen comes before a verdict has been rendered, courts have a wide discretion to permit reopening – a decision that is based on the “interests of justice”: R. v. Hayward, [1993] O.J. No. 2939 (C.A.).
[15] In R. v. Gauthier, [2021] O.J. No. 1861 (C.A.), one of the issues raised at trial was the “independence” of a proposed Crown expert witness. The trial judge initially ruled against the Crown, but then revisited that ruling mid-trial and reversed it. The original ruling was based on a misapprehension of the facts before the trial judge. The Court of Appeal ruled that the trial judge had made a simple error and that once the error was brought to his attention he stated that this was determinative of his opinion and reversed his ruling and was entitled to do so.
[16] Having heard from counsel and having reviewed the authorities and considered the related materials, I granted Defence counsel leave to re-open his Charter argument on two of the three issues now raised, namely the alleged misapprehension of evidence and the failure of counsel to previously advance an argument in respect of the excision of the Information To Obtain (“ITO”).
[17] Defence counsel subsequently abandoned any argument with respect to issue i. and has conceded the date and that nothing turns on this.
Defence Position on Alleged Misapprehension of Evidence
[18] The uncontroverted evidence at trial is that police obtained a warrant to examine the USB on 22nd September, 2021. In my original Charter ruling of 12th April, 2023 at paragraph 91, it erroneously indicates that the search warrant was granted on 24th March, 2021. Defence counsel submits that this error is significant and that it indicates that the court clearly placed significant reliance on the immediacy of police actions with regard to obtaining the warrant as an important factor in its 24(2) analysis and that this undermines the corresponding 24(2) analysis that was conducted.
Crown Position
[19] The Crown submits that the error is a typographical error of the type contemplated in the email accompanying the copy of the decision that was sent to counsel on 12th April, 2023 and that this is an error that the court is entitled to correct. The Crown further submits that it was clear that the Court did not substantially rely upon ‘immediacy’ of police action as an important factor in the accompanying 24(2) analysis and further cites paragraph 17 of the decision which reads:
[20] “At this stage, given the new human trafficking investigation, police separately applied for and were granted a warrant to examine the external storage devices that had been seized from the apartment, namely downloads of: a Lexar USB, a MacBook, 1465 laptop and a Q6 smartphone.”
[21] The Crown submits that the import is not the immediacy of police action but their application for a separate authorization for a separate investigation and that any 24(2) analysis would not turn on this. The Crown further submits that the defence have not established based upon this that a material change of circumstances has occurred and that the change, if known at the time of the original ruling, would have likely led to a different result and accordingly has not met their onus.
Law and Analysis
[22] It is clear that my original Charter ruling contained an error in respect of the date on which the search warrant was obtained by the police. In emailing a copy of my decision to counsel on 12th April, 2023, I attached a copy of the ruling via email and advised that it was “subject of course to any typos or other errors that I have tried to eliminate.”
[23] Upon my review of my original Charter ruling, it is clear to me that the date contained in paragraph 91 of my 20-page ruling is an unfortunate typographical error that I had sought to avoid. All parties have a legitimate expectation that the contents of judicial decisions will be factually and legally accurate. It is entirely legitimate for them to question any obvious error that is seen to arise. While such errors may typically be considered on any appellate review, defence counsel seeks to have this particular issue revisited as part of his applications before me at trial to reopen my original Charter ruling.
[24] While I am very sensitive to the perception of the court being seen to mark its own homework, I am satisfied that in the circumstances of this application and on the facts before me, it is not inappropriate for me to consider the issue advanced by defence counsel. In my view, the interests of justice and fairness require the issue to be addressed given that I appreciate the optics of the wording used in paragraph 91 may legitimately create the perception raised by defence counsel.
[25] My original ruling under section 24(2) admitted the USB device and its contents notwithstanding the section 8 Charter breach that I found had occurred. I do not intend to rehearse in full the reasons for that decision herein. Those reasons were outlined in the original Charter decision of 12th April, 2023.
[26] The error in paragraph 91 was a typographical error and I believe it is clear from the totality of the contents of the original Charter ruling that the Court did not misapprehend the evidence before it. I would correct the paragraph to reflect the correct date as originally intended and to reflect that the warrant for the USB was obtained on 22nd September, 2021 and not in March.
[27] Notwithstanding this correction, I believe it is necessary and appropriate to address Defence counsel’s argument on any potential impact of this error may be seen to have had on my original section 24(2) analysis. This is of additional importance given the additional Charter argument defence counsel now seeks to make with respect to the ITO and any cumulative or stand-alone effect the date for the search warrant may have on my section 24(2) analysis.
[28] While the additional time between March and September, 2021 which the police took to obtain the warrant for the USB may reasonably be argued to have increased the seriousness of the impact on the section 8 breach, I would not find that it was determinative of my analysis under section 24(2) nor that it changed my original decision.
[29] It is of obvious significance that the police sought and obtained judicial authorization and that throughout this timeframe the police were conducting a parallel homicide investigation into the murder of Ms. LSJ. I accept that police could have taken these steps earlier. While it may have been desirable for the police to seek and obtain the warrant sooner, I do not find any deliberate bad faith on their part in not doing so until September.
[30] The conclusions that I reached previously in paragraphs 94-96 of the original Charter decision remain the same and I reiterate them here.
[31] It is my view that admitting the [USB] evidence in this case would not damage the long-term repute of the administration of justice. First, the evidence collected by the police was physical evidence. It is reliable and crucial to the Crown’s case. Without this evidence there is no realistic prospect of the prosecution continuing. The evidence sought to be excluded includes hundreds of messages between Ms. Fodor and her partner Abdi as well as messages from Ms. Fodor to the deceased Ms. LSJ. Second, offences related to human trafficking are serious offences. These are offences that deliberately target vulnerable individuals who are preyed upon for material gain by exploitative individuals and groups. Society has a very significant interest in combatting these types of offences. In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry pulls strongly in favour of inclusion. In my view admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.
Excision of USB From the Production Orders and ITOs
[32] The remaining issue that Defence counsel seeks to raise on the reopening application before me is that of the excision of the USB device from the Production Orders and ITOs that lead to Search Warrants.
[33] Defence counsel concedes that this argument was not advanced at the time of his original Charter application. Although it is an argument belatedly made, I consider it an appropriate one for me to hear following counsel’s application.
[34] The Applicant submits that once the Court made a finding that the USB device was obtained in breach of s. 8 of the Charter the information contained on the USB should not have been included in the ITOs in support of the Production Orders that were obtained on 24th March, 2021 as well as from the later search warrants. It is the position of defence counsel that without this information none of the subsequent judicial authorizations could have issued and that there was no basis to issue the Production Orders and that the subsequent Warrant obtained, in part, on their reliance, were obtained contrary to s. 8 of the Charter.
[35] The Applicant argues that the excision flows automatically from the finding of the s 8 breach, notwithstanding its subsequent admission under 24(2). Defence counsel argues that it follows from their submission that a fresh 24(2) analysis and finding in support of this position would result in the Court finding that the Production Orders and Warrants were invalid and hence all items seized were unconstitutionally obtained. The Applicant submits that without the USB evidence there was no basis upon which the September, 2021 warrant could have been issued and that this argument is only strengthened if the Court finds that the USB evidence and the accompanying Production Orders are excised.
Crown Position
[36] The Crown concedes that the finding of the s. 8 breach in respect of the USB device results in its excision from the Production Orders search warrants. However, the Crown submits that notwithstanding the excision of the information from the USB stick, the judicial authorizations could still have issued.
LAW AND ANALYSIS
[37] There is no disagreement as between the parties that ‘unconstitutionally” obtained information, whether or not that information would be admitted or excluded at trial pursuant to section 24(2), must be excised from any ITO on a review of the validity of any judicial authorization.
[38] It is only what remains after such excision (and subject to amplification) that must be assessed to determine whether or not the warrant or other judicial authorization could have issued. This issue was discussed directly by the Ontario Court of Appeal in R. v. Mahmood, 2011 ONCA 693, [2011] O.J. No. 4943 (C.A.) at paras. 115-117, and flows from the analyses of the Supreme Court of Canada in Araujo, Wiley and Grant.
[39] I accept the position of the parties that the argument that the Court may excise only the evidence that has been ruled (or would be ruled) inadmissible at trial applying section 24(2) principles, has been made and specifically rejected in a number of cases.
[40] The statutory preconditions for a search warrant to be granted are set out in s.487 of the Criminal Code of Canada:
s. 487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
(d) to search the building, receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect of it to, a justice in accordance with section 489.1.
A judicially authorized search warrant is presumptively valid. That presumption can, however, be rebutted if: (1) the warrant fails to meet the statutory preconditions for authorization; or (2) the preparation of the application for the warrant involved misconduct so subversive of the prior authorization process that the warrant should be set aside.
When a warrant is set aside, the search conducted pursuant to that warrant is then treated as a warrantless search, and thus presumptively unreasonable. It is the Applicant’s position that the warrant in the case at bar fails to disclose the reasonable and probable grounds necessary.
When reviewing the sufficiency of a warrant, the reviewing court must not conduct an analysis de novo and must be careful not to substitute its view for that of the authorizing justice.
[41] Recently, in R. v. Kalonji, [2022] O.J. 2335, the Court of Appeal summarized the applicable legal principles. To begin, the principles that apply when reviewing a warrant are well settled. The question is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have.
[42] The test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”. The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specific time and place.
[43] The inquiry has both a subjective and objective component. The affiant must personally believe in the existence of reasonable and probable grounds and that belief must be objectively reasonable. That is, there must be a credibly based probability that evidence respecting the commission of an offence will be found in the location to be searched.
[44] The “reasonable grounds to believe” standard is less demanding than proof on a balance of probabilities. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, then the warrant could issue. The authorizing justice must review the ITO as a whole and from a common sense, practical, and non-technical perspective. Hearsay statements can provide reasonable and probable grounds to justify a search, and the trial judge is entitled to draw reasonable inferences.
- R. v. Sadikov, 2014 ONCA 72, at paras. 81-82
- R. v. Garofoli, [1990] 2 SCR 1421
[45] The standard of review is not to devolve into a process of microscopic, line by line examination of individual components of the ITO. Rather, an ITO should be read as a whole and not dissected into compartments.
[46] The constitutional standard of review is one of reasonableness – not correctness therefore, the Affiant has the right to be factually wrong, but not unreasonable. In other words, the Affiant is entitled to rely on grounds that may later prove to be untrue.
[47] The Crown submits that following the excision of the USB stick, the following information remains and was sufficient to support the issuance of the judicial authorizations:
i. The Applicant had been living with her boyfriend Abdi since June 1, 2020, and Ms. LSJ moved in with them on July 1, 2020 in their one bedroomed apartment (pg. 16).
ii. LSJ was on file as being a victim of human trafficking (pg. 12).
iii. A substantial amount of cash was found bundled in the Applicant’s purse containing the Applicant’s identification (pg. 25).
iv. Within a dresser drawer in the Applicant and Abdi’s room, a $5000 CIBC deposit slip was located, dated September 24, 2020 (pg. 26).
v. Significantly, within the bedroom of Ms. Fodor and Mr. Abdi numerous hotel room keys and various hotel receipts in the Applicant’s name were located beside the bed (pg. 26).
[48] Following the evidence called at trial and as contained in the various materials filed by counsel it is also apparent that additional specificity of information around the trafficking of Ms. LSJ was available. At trial, exhibits were entered in the form of on-line adverts for sexual services by Ms. LSJ. These were generated following an electronic search conducted by Detective Dana Reitsma as part of the Human Trafficking investigation with respect to this case as well as the related homicide case.
[49] The context and content of information available to the issuing justice is always important. It is clear that find that following the excision of the USB, there was still evidence located at the residence of Ms. Fodor. There was clear evidence to connect Ms. Fodor, Mr. Abdi and Ms. LSJ as sharing this one bedroomed residence.
[50] There was also clear evidence to indicate that Ms. LSJ was a victim of human trafficking and at the very least that she was involved in the paid provision of sexual services. A substantial amount of cash was located in the address in Ms. Fodor’s handbag as well as the record of a substantial financial deposit.
[51] Of particular significance are the various hotel receipts and hotel room keys that were also located at the residence which, as with the sum of cash that was found, have added significance within the context of the information available to both the officer and the issuing justice of a potential human trafficking scenario.
[52] The more comprehensive and detailed the information that is available to the issuing justice the better. There is nothing to suggest on the evidential record before me that what remains following excision of the USB device is not a frank and fair record. There is also no bad faith alleged to have occurred on the part of the officers. While the information that remained may have been at the slender end of the spectrum, I find that there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specific time and place.
[53] I also find that the officers possessed the necessary subjective belief of reasonable grounds and I find that these grounds were objectively reasonable in the circumstances based upon the remaining information that existed, following the excision of the USB.
[54] I find that while more available information would inevitably have assisted the issuing justice, what remains was, in its totality and within the context of the judicial authorization sufficient to find that the issuing justice could have issued the Production Orders and that these would have legitimately informed the subsequent search warrants.
[55] While I am satisfied that there was sufficient and reliable evidence to find that the issuing justice could have issued the authorization, I would note that if I am wrong on this, I would conclude that following a renewed section 24(2) analysis nothing would disturb my previous findings on the admissibility of the evidence. I would reach this conclusion notwithstanding the consideration of the cumulative impact any of subsequent breach.
[56] There remains no bad faith alleged on the part of the officers. Officers sought and obtained what they reasonably believed were valid and lawful judicial authorizations in respect of significant physical evidence with regards to a significant criminal investigation that the public has a legitimate interest in seeing pursued.
[57] As Grant makes clear, the focus of the 24(2) analysis is the broad impact of the admission of evidence on the long-term repute of the justice system. In the event that I had a found a further Charter Breach and conducted a renewed analysis, I would still conclude that a balancing of the Grant factors strongly favoured admission for the reasons I have previously provided and I would have found that there was no basis for the Court to distance itself from the behavior of the police in the case.
Section 8 Charter Argument – Standing with respect to financial transactions
[58] Following Charter arguments in March, 2023 and previous Charter rulings provided by me in April, 2024, Ms. Fodor’s trial commenced before me on April 26, 2023.
[59] The parties appeared before me on August 17 and 18, 2023 when it was anticipated that counsel would make final submissions on the trial and any other applications. For the first time and in the course of submissions, the Applicant raised a new and distinct issue that had not been previously raised or anticipated by any of the parties.
[60] Mr. Bytensky sought to argue on behalf of the Applicant that she should be granted standing to challenge the judicial authorization allowing the police to seize Ms. LSJ’s Scotiabank records.
[61] Defence counsel was required by me to provide a written Application in support of this new issue and upon receipt of that written argument the Crown was unsurprisingly and necessarily given time to consider, digest and respond to this new issue.
Defence Position
[62] Counsel on behalf of the Applicant seeks to argue standing with a view to excluding the portions of Ms. LSJ’s bank records that disclose the financial transactions as between Ms. LSJ and Ms. Fodor. Counsel seeks, by way of analogy, to argue the application of the principles articulated in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608 in respect of third-party bank records. Counsel concedes that he is not able to provide any case in which this issue was argued or decided by the Courts but does provides copies of the decisions in R. v. Marakah and R. v. Schreiber, [1998] 1 S.C.R. 841.
[63] The Applicant did not testify nor provide any Affidavit or other evidence in support of this application in which she asserted her subjective expectation of privacy. Defence counsel submits that such evidence is not a pre-requisite and is not fatal to this application. Mr. Bytensky submits that such an inference is a reasonable and legitimate one for the Court to draw on the evidence before it.
Crown Position
[64] The Crown requests that the Court decline to grant standing to the Applicant for this newly raised section 8 Charter argument. Ms. Gharabaway argues that Ms. Fodor has no reasonable expectation of privacy in Ms. LSJ’s bank records. It is the Respondent’s positions that there is no basis upon which to conclude that there is a subjective expectation of privacy in these bank records. In the alternative, if the Court finds that there is such an expectation of privacy the Crown submits that this is not objectively reasonable.
Law and analysis
[65] Following the submissions of counsel and notwithstanding the circumstances under which the Application was brought, I granted the Applicant leave to bring this Application and received written materials and heard further oral submissions on the issue. As with the other applications before me on this case, I have also reviewed the various authorities I’ve been provided with.
[66] Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search and seizure”. To establish a breach of s. 8, any claimant must pass through two stages of inquiry:
i. The claimant must show that a state act constituted a search or seizure because it invades his reasonable expectation of privacy in the subject matter of the search.
ii. If the above is established the claimant must show the search or seizure was itself unreasonable.
- R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 at para. 11
[67] Generally, the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, such as law enforcement.
- R. v. Reeves, [2018] S.C.C. 56 at para. 11
[68] As a reasonable expectation of privacy in the subject matter of the search is a condition precedent to a s. 8 claim, the onus is on the Applicant to establish such an expectation.
[69] Determining whether an accused has a reasonable expectation of privacy involves considering four main “lines of inquiry”:
a. What was the subject matter of the alleged search? (ie: what are the police really after?)
b. Did the claimant have a direct interest in the subject matter?
c. Did the claimant have a subjective expectation of privacy in the subject matter?
d. If so, was the claimant’s subjective expectation of privacy objectively reasonable?
- R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608 at para. 11
[70] The majority of the Supreme Court of Canada in R. v. Marakah concluded that the sender of text messages may have a reasonable expectation of privacy in the sent text messages retrieved from a recipient’s phone so as to give the accused standing to challenge the seizure and admissibility of the text messages under ss. 8 and 24(2) of the Charter.
[71] As the Crown submits, in Marakah, the Court was faced with a very specific circumstance where the state clearly breached Mr. Marakah’s co-accused’s s. 8 rights when they obtained a warrantless and non-consensual extraction of his phone. The police viewed text messages exchanged between two parties without either of their consent. The Crown conceded the breach.
[72] Ms. Fodor claims that she has a reasonable expectation of privacy in Ms. LSJ’s bank records and therefore has standing to challenge the seizure and admissibility of the records under ss. 8 and 24(2) of the Charter.
[73] “Whether a seized item attracts protections under s. 8 of the Charter depends on the totality of the circumstances.”
[74] In considering the totality of the circumstances, the four “lines of inquiry” discussed above guide the Court’s analysis.
[75] In Marakah, the Supreme court concluded that the four lines of inquiry established that Mr. Marakah had a reasonable expectation of privacy in the text messages recovered from his co-accused’s phone. The subject matter of the search was the electronic conversation between Mr. Marakah and his co-accused. Mr. Marakah had a direct interest in the subject matter. He subjectively expected it to remain private. That expectation was objectively reasonable. He therefore had standing to challenge the search.
[76] Ms. Gharabaway submits that there are numerous important factual distinctions in Marakah that distinguish the application of its principles in the case before me. She argues that Ms. Fodor could not have subjectively expected the records to remain private and that Ms. LSJ’s records confirm that the Applicant received a material benefit from a vulnerable person’s work in the sex trade, and the Applicant directed and influenced her employ.
[77] In the case at bar, the Production Orders sought by the police related to the Applicant’s banking records, Ms. LSJ’s banking records and other material unrelated to this Application. Within the USB that was seized by the police, which I have determined to be admissible in this trial, the police identified specific financial transactions between Ms. LSJ and the Applicant.
[78] Mr. Bytensky submits that to quote Doherty J.A. “what the police were really after” was evidence of the electronic financial conversation between Ms. LSJ and the Applicant as reflected in their respective banking records and that this is directly analogous to Marakah.
[79] The Applicant submits she has a direct interest in the information gathered by the police from Ms. LSJ’s bank records which show financial transactions from Ms. LSJ to Ms. Fodor and that this represents ‘core biographical data in respect of the Applicant.”
[80] The Crown acknowledges that Ms. Fodor may have had a direct interest in these particular records but submits that this is because they confirm the Applicant materially benefitted from a vulnerable person’s employ in the sex trade. Ms. Gharabaway submits that the constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his [or her] own offences.
- R. v. Patterson, [2018] O.J. no. 3781 at para. 13
[81] In R. v. Mills, the Supreme Court of Canada held that the accused did not have a reasonable expectation of privacy over sexually explicit Facebook messages that were sent to a 14-year-old girl, who happened to be an undercover police officer. The Court accepted that the accused had a subjective expectation of privacy in his online communication, however the Court did not find this to be objectively reasonable given the nature of the relationship (an adult communicating with a child). The Court also recognized the vulnerability of children and their need for protection from sexual crimes. The Court’s determination turned on what a person could reasonably expect in the totality of the circumstances. R. v. Mills, 2019 SCC 22, [2019] S.C.J. No. 22.
[82] The Crown submits that a similar conclusion was reached by the Court in R. v. Morgan. Mr. Morgan alleged that his s. 8 rights were violated when the police seized messages exchanged between himself and the complainant he allegedly sexually assaulted. The complainant texted Morgan from her mother’s phone and they turned over the phone to the police to assist in their investigation.
- R. v. Morgan, [2020] O.J. No. 2330
[83] The Court concluded that the complainant and her mother handing over the phone to the police did not constitute a search, and therefore there was no requirement to assess Morgan’s reasonable expectation of privacy.
- R. v. Morgan, supra, at para. 104
[84] If the court was incorrect in its conclusion, then Morgan’s subjective expectation of privacy was not objectively reasonable.
[85] Ms. Gharabaway submits that as in Morgan, Ms. Fodor did not engage in a medium that has the potential to be consistent with significant privacy, namely receiving e-transfers from a financial institution.
[86] In R. v. A.K., 2022 ONSC 1241, two accused were charged with numerous offences relating to human trafficking. After the complainant came forward, she signed a written consent form permitting the police to examine her phone for evidence of the offences. The accused had placed parental controls on the phone.
[87] The accused claimed that they had a reasonable expectation of privacy in the text messages on the phone and therefore police needed judicial authorization to examine it.
[88] The Court found that the accused had a subjective expectation in the messages, relying, in part, on the fact that they had placed “parental controls” on the phone. But the Court rejected the notion that their expectation was reasonable given the abusive and exploitative nature of the relationship between them and the complainant. The Court went on to find that the relationship between the complainant and those allegedly exploiting her was not one worthy of section 8 Charter protection.
[89] Ms. Gharabaway submits that in the Applicant’s case, the facts only serve to answer the normative question posed by Justice Brown in Mills in the negative – that this is not a situation where Canadians ought to expect privacy over their electronic communications and that nature of this relationship, alleged male pimp and human trafficker and his alleged female sex worker and slave, is precisely one left open by paragraph 26 in Mills – a relationship not worthy of section 8 Charter protection when it comes to electronic communications.
[90] In R. v. Amdurski, 2022 ONSC 1338 the Court also reached a similar result. The Court concluded that the nature of the relationship between the parties is a key factor in assessing whether there exists a reasonable expectation of privacy in the communications between them.
[91] The Court went on to find that the accused did not even have a subjective expectation of privacy in the messages due to the fact that unlike the relationship between Marakah and Winchester, the victim was not engaged in criminality so there was little motivation for her to keep the messages private.
[92] In any event, the Court held that any subjective expectation of privacy held by the accused would not have been reasonable. The Court stressed that, in Marakah, the Supreme Court did not find that a reasonable expectation of privacy would always exist vis-à-vis text messages. The Court held that the “differences between [the case before it and Marakah] are the most influential, not the superficial ways in which they are similar”.
[93] In the case at bar, the Crown submits that any subjective expectation of privacy advanced by Fodor is not objectively reasonable. This is illegal activity where one should not expect privacy. The records relate to the complainant’s bank records, held exclusively by Ms. LSJ. Ms. Gharabaway submits that one cannot simply advance an expectation of privacy in any record where one has an interest in its contents.
[94] Contrary to the submissions of the Applicant, the Respondent submits Ms. Fodor could not have expected that the specific contents of these bank records would remain private just between her and Ms. LSJ, particularly when they relate to Ms. Fodor materially benefitting from directing and influencing Ms. LSJ in the sex trade and any bank employee would have access to their contents.
[95] The Crown submits that this is exactly the type of evidence Justice Moldaver was concerned about in his dissent in Marakah when he noted:
“With respect, these examples show that the Chief Justice's approach to standing is effectively boundless. To hold that the sexual predator and the abusive spouse retain a reasonable expectation of privacy in the text messages once they are received by their victims is remarkable. Indeed, I am hard pressed to think of anything more unreasonable. This effectively eradicates the principle of standing and renders it all but meaningless.”
[96] I agree with the Applicant that in the context of this case I am capable of determining whether there is a subjective expectation of privacy in the absence of specific evidence from the Applicant herself. I also agree with Mr. Bytensky that the bank records at issue meet the threshold of the type of information that contains certain core biographical information about an individual.
[97] I do not agree with Ms. Gharabaway that the potential for a bank employee to access this information diminishes the private nature of certain banking information and I accept that on a balance of probabilities, even in the absence of any specific evidence from her, that the Applicant may have had a subject expectation of privacy in the financial records in issue. In this specific case the material that police “were after” was the electronic communication between Ms. LSJ and others as it related to financial transactions from Ms. LSJ.
[98] However, even if such a subjective belief existed on the part of Applicant I do not find that it was objectively reasonable.
[99] The context of the relationship between the parties in determining these issues is significant. I would note that it is important that the courts do not lightly determine that a particular relationship informs whether or not an Accuse is deserving of Charter protection.
[100] There is a difference between the nature the charges that an accused faces and the nature of the relationship between an Accused and another party. The Charter exists as a necessary shield to protect the rights of individuals in terms of their relationship with the state. I read nothing in the authorities I have reviewed that suggest that the withdrawal of Charter rights is based upon the nature of the charges themselves, however serious or unpalatable they might be.
[101] Mr. Bytensky submits that on the spectrum of alleged trafficking behaviour there are more heinous examples of the “sex trafficker and victim” dynamic than those alleged by the Crown to exist here as between Ms. LSJ and Ms. Fodor. In my view, notwithstanding the fact that even worse examples may be envisaged, this does not alter the fundamental nature of the relationship in this case between the Applicant and Ms. LSJ which was, by definition, inherently exploitative and parasitic. The facts that even worse manifestations of such a dynamic can be envisaged does not, in my view, diminish the realities in this case.
[102] Marakah is a significantly different and factually distinctive case from the one before me. I do not find that the analogy and chain of reasoning Mr. Bytensky seeks to advance is supported on the facts of the case before me or on my review of the relevant authorities. The differences in the case at bar and Marakah are substantially more than simply the significant differences between text messages and electronic bank records. I don’t reject the notion that some of the guiding principles of Marakah may have broader application for 3rd party records, however, any such analysis is case and fact specific.
[103] In my view to hold that any such view on the part of the Applicant was objectively reasonable is not tenable and the natural consequence of the Applicant’s argument would be to expand the reasoning in Marakah well beyond what was contemplated or intended.
[104] To choose but one obvious, illustrative example, following the Applicant’s line of argument would enable every perpetrator of every online or electronic fraud to seek the exclusion of their handiwork when their victim transferred funds to them as a consequence of the fraud.
[105] The mere fact that Ms. Fodor may have an interest in these records does not elevate that interest to an objectively reasonable expectation of privacy in the third-party banking records of the woman whom she is alleged to have been trafficking.
[106] In light of the above I do not find that the Applicant has standing to argue against the exclusion the relevant bank records of Ms. LSJ. Accordingly, I do not find that there was any breach of the Applicant’s s. 8 Charter rights in this regard and the evidence from these particular records will be admitted into evidence.
Trial Submissions
Overview
[107] Julianna Fodor is charged with the following three offences: Exercise Control for the purpose of Sexual Services, Advertise Sexual Services and Receive Material Benefit from Sexual Services. The offences are alleged to have occurred between March 7, 2020 and June 27, 2020.
[108] The allegations against Ms. Fodor arise out of the murder and tragic death of LSJ. Ms. Fodor, who it is important to note is not implicated in the homicide of Ms. LSJ, returned home to discover Ms. LSJ dead on the sitting room floor of the apartment she shared with Ms. LSJ and her partner Sayeesa Abdi. Ms. LSJ had been shot and killed and Abdi was recently convicted of her homicide.
[109] After telephoning a friend, Ms. Fodor called the police and a homicide investigation commenced. During the course of this investigation, search warrants and production orders were obtained by the police and a number of items from Ms. Fodor’s apartment were seized by the police. These included a large quantity of cash, various hotel keys and receipts computers, cell phones and a USB stick.
[110] Police officers subsequently obtained production orders and search warrants and following the receipt and analysis of bank records and the contents of the USB device Ms. Fodor was subsequently charged with the 3 counts that she now faces.
[111] Ms. Fodor did not testify at her trial and the defence called no evidence. Several Charter applications were brought on Ms. Fodor’s behalf prior to and during the course of this trial. I have provided my decisions on those Charter applications both previously and elsewhere in the course of this judgment. I have also provided rulings on this trial in respect of arguments relating to the need for expert evidence as well as on an issue relating to business records and electronic records under the Canada Evidence Act.
[112] Counsel’s submissions on the trial were made alongside their submissions on the various related applications. They anticipated the potential rulings I may make in light of them and I apply the various rulings I have made to the evidence before me on this trial.
Summary of Evidence
[113] Some viva voce evidence was called by the Crown from the officer in charge if the case, Detective Reitsma and also from officers with some specific technical experience. The principle evidence for the Crown consists of documentary evidence that was entered as exhibits on the trial following my previous Charter rulings and rulings on admissibility. This includes but is not limited to:
- A TPS ‘Axiom report’ which extracted and reproduced the contents of the USB stick that was seized from the apartment of Ms. Fodor and her partner Mr. Abdi. This contains hundreds of text messages, the overwhelming majority of which are between the same two individuals.
- Various banking records that relate to Ms. Fodor and Ms. LSJ.
- A Leolist advert advertising the provision of sexual services on the part of a person identified as LSJ.
Position of the Parties
Crown
[114] Ms. Gharabaway submits that on the totality of the admissible evidence before me the Court can conclude beyond a reasonable doubt that Ms. Fodor is one of the individuals identified on the Axiom report in the numerous text messages.
[115] She further submits that each of the essential elements of the three offences is made out as a result of the evidence that the Court should admit.
Defence Position
[116] Mr. Bytensky makes no admission as to the identity of the parties in the Axiom report. He submits that on the two counts of Advertise Sexual Services and Receive Material Benefit from Sexual Services the evidence that the Crown has led falls far short of what is necessary to prove guilt beyond a reasonable doubt.
[117] With respect to the count of Exercising Control for the purpose of Sexual Services, defence counsel concedes that on the basis of the evidential rulings I may make, the Crown may have led some evidence in respect of this offence but submits that, at their highest, the actions alleged as against Ms. Fodor do not satisfy the legal requirements of control, direction or influence as alleged.
Analysis
[118] At the outset and given its foundational significance it will help to state that I find beyond any reasonable doubt for the following reasons that the two individuals whose interactions represent the vast majority of the text conversations on the Axiom report are the Accused Ms. Fodor and her then partner Mr. Abdi.
[119] The Axiom report is generated as result of the use of software to analyze and replicate the USB device seized from the Accused’s apartment. The file names have not been changed from the names assigned to them by Axiom after export. Dates and times in the file names refer to the time stamp of the final message sent in the conversation and have also not been changed through the analysis.
[120] Based upon the voluminous content and context of the many exchanges between the two parties over numerous days and the email address attributed in the messages to Ms. Fodor and corroborated by her own bank records it is abundantly clear to me who the principal parties are for the purposes of the evidence in this trial.
[121] This is further reinforced by the numerous references in their text correspondence to ‘L” who is clearly LSJ, the subject of the charges against Ms. Fodor. This report ultimately appears to replicate a download from Ms. Fodor’s cell phone which was itself at some point downloaded onto the USB device that was seized. From this initial finding my subsequent analysis will flow.
[122] Ms. Fodor faces three distinct but related charges in relation to the late LSJ. I shall address and analyze each in turn. In considering the evidence before me on each count, I have instructed myself on the requisite standard and burden of proof in a criminal trial.
[123] Establishing guilt on the part of an Accused person requires proof beyond a reasonable doubt. Proof beyond a reasonable doubt goes hand in hand with the presumption of innocence which is a fundamental principal of our system of justice.
[124] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. See: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). To be clear, it is not sufficient that, on the whole of the evidence that I am satisfied that Ms. Fodor is probably guilty.
Count 1 – 286.3(1) – Exercise control for the Purpose of Sexual Services
[125] Section 286.3(1) of the Criminal Code provides as follows:
Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
[126] Under s. 286.3(1) of the Code, the actus reus of the offence may be established in one of three ways:
i. By procuring a person to offer or provide sexual services for consideration;
ii. By recruiting, holding, concealing or harbouring a person who offers or provides sexual services for consideration; or,
iii. By exercising control, direction or influence over the movements of a person who offers or provides sexual services for consideration.
[127] Count 1 has been particularized in this case to allege conduct on the part of the Accused under 286.3(1)(iii), namely control, direction or influence.
[128] As with the human trafficking provisions under section 279.01, section 286.3 prohibits a wide range of conduct. The section has recently been described by Hoy J. of the Ontario Court of Appeal in this way:
I would characterize the purpose of s. 286.3 slightly differently from the application judge. I would describe its purpose as to denounce and prohibit the promotion of the prostitution of others in order to protect communities, human dignity and equality. Promoting prostitution encourages an activity that Parliament considers inherently exploitative. Section 286.3 gives effect to this purpose by prohibiting a wide range of conduct intended to procure a person to offer or provide sexual services for consideration and conduct engaged in for the purpose of facilitating an offence under s. 286.1(1).
…The aim of s. 286.3 is to prohibit the promotion of the prostitution of others. Section 286.3 is concerned with their safety by discouraging entry into and deterring participation in an activity that Parliament views as inherently exploitative and exposing risks of violence to those who engage in it.
[129] Exercising control, direction or influence evoke a scenario in which a person, by virtue of his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and her movements. By virtue of the relationship between the accused and the victim, the accused was in a position or had the ability to control, direct or influence the movements of the victim. These involve different degrees of coercion, with ‘control’ being on the most coercive end of the spectrum and ‘influence’ being on the least coercive.
[130] Parliament chose to use the same words in the trafficking in persons provisions as it had in the old (s. 212(1)(h)) and new procuring offences (s. 286.3). In R. v. Perreault, [1996] J.Q. No. 3825, [1997] R.J.Q. 4, the Quebec Court of Appeal defined the essential elements of the former procuring offence as:
The element of control refers to invasive conduct, a power that leaves the controlled person with little choice. This conduct therefore includes acts of direction and influence. Control can be obtained through physical violence, overt or implied threats of physical violence, psychological pressure and deception.
[131] Direction is exercised over the movements of a person when rules or behaviours are imposed. These rules or behaviour are intended by the accused to be followed. A complainant being directed may still have a certain latitude or margin for initiative.
[132] ‘Influence’ entails something less coercive than ‘direction’. Exercising influence over someone means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. If exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it. Any action exercised over a person with a view to aiding, abetting or compelling the person to engage in or carry on in sex work would be considered influence.
- R. v. Gallone, supra, at paras. 46 – 50
- R. v. Urizar, supra, at paras. 74
- R. v. Perreault, supra, at para. 11
[133] Control, direction or influence over the movements of a person is not limited to physical movements of a person but includes non-physical movements such as setting prices for services or control of money.
- R. v. Williams, 2021 ONSC 5600
- R. v. Y.S., 2021 ONSC 4010
- R. v. Evans, 2017 ONSC 4028 at paras. 148-151
[134] In Williams, after reviewing the above noted authorities the court concluded that:
… to limit the definition of "control, direction, or influence over the movement of a person" solely to physical movements of the person selling sexual services makes no sense. The essence of the offence is the effect of one person on another's ability to decide to do something, such as offer sexual services at one place or another, or to offer one kind on service or another. Likewise, the essence of the offence implicitly is the effect of one person on another's ability to make other decisions regarding sexual services, such as the price for those services. Making decisions requires mental movement, and by taking those decisions away from the seller of the services the accused is limiting her decision-making power.
[135] The mens rea of this offence requires that the accused intended to do anything that satisfies the actus reus in relation to a person who offers or provides sexual services for consideration and the accused acted with the purpose of facilitating an offence under s. 286.1(1). The accused must specifically intend their actions to have the effect of facilitating the offence.
[136] In R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, the court concluded the terms “control, direction or influence” in the actus reus of the human trafficking offence in s. 279.01(1) and the procuring offence in s. 286.3(1) of the Code are disjunctive and have different meanings.
[137] In R. v. Ochrym, [2021) O.J. No. 352 at paragraph 25 the Court of Appeal referenced the following passage at para. 47 of Gallone:
[138] Consistent with R. v. Perrault, [1997] R.J.Q. 4 (C.A. Que.), 113 C.C.C. (3d) 573, I would define "exercises influence" over the movements of a person for the purposes of s. 279.01(1) as something less coercive than "exercises direction". Exercising influence over a person's movements means doing anything to affect the person's movements. Influence can be exerted while still allowing scope for the person's free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it.
Crown Position
[139] Ms. Gharabaway submits that the cumulative effect of all the evidence paints a clear picture beyond any reasonable doubt that Ms. Fodor exercised direction and influence over Ms. LSJ’s employ in the sex trade. She aided and compelled her to engage in sex work. Along with her partner Abdi, she set prices, posted Ms. LSJ’s advertisements, controlled the money generated from Ms. LSJ’s earnings, booked hotels and advised Ms. LSJ when clients arrived. The Crown urges the court to find Fodor guilty of count one.
Defence Position
[140] Mr. Bytensky properly draws my attention to the principles articulated in R. v. Ochrym and the correct test to be applied in respect of this particular count. Of particular significance is the consideration that the court must have of the alleged relationship between the parties in addition to any actus reus. Mr. Bytensky submits that there is no evidence before me to support ‘direction’ or “control” as defined in R. v. Gallone.
[141] Defence counsel submits that there is no evidence of Ms. Fodor issuing any orders imposing any rules on Ms. LSJ and that the relevant consideration for this particular count centres on ‘influence” and whether proof beyond a reasonable doubt has been established that Ms. Fodor ‘influenced” Ms. LSJ as alleged.
[142] Defence counsel also submits that R. v. Williams, 2021 ONSC 5600 and R. v. Y.S., 2021 ONSC 4010 which are cited by the Crown are incorrectly decided in light of R. v. Gallone and R. v. Ochrym and are not binding on me and that non-physical acts do not amount to control.
[143] I agree with Defence counsel that on the totality of the evidence before me there is insufficient evidence to support a finding of guilt on the basis that Ms. Fodor exercised direction or control over Ms. LSJ. The issue for me is whether there is sufficient evidence to support guilt on this count on the basis that the Accused “influenced” Ms. LSJ.
[144] I have reviewed the totality of the evidence before me, including the numerous text messages contained in the Axiom report between Ms. Fodor and Mr. Abdi. The language employed in the texts make reference to the nomenclature of the sex trade which, where necessary, was explained by DC Reitsma and other officers and this language or terminology and its various meaning are not in dispute at this trial.
[145] I identify the following specific acts engaged in by Ms. Fodor at various points in her engagement with Ms. LSJ in the relevant time period.
i. Booking hotel rooms and changing hotel rooms during the course of visits by Ms. LSJ when they were deemed inappropriate for Ms. LSJ to work in
ii. Physically accompanying Ms. LSJ to various hotels and hotel rooms when Ms. LSJ attended them
iii. Posting or reposting adverts for the provision of sexual services on the part of Ms. LSJ
iv. Engaging in discussions with Abdi about the specific sexual services that Ms. LSJ would provide and communicating those prices to both Ms. LSJ and clients
v. Obtaining food for Ms. LSJ and deciding on her behalf what she would be eating.
vi. Directing Ms. LSJ to pay attention to Ms. Fodor’s phone in order to not miss calls or texts from potential clients
vii. Receiving information about the arrival of clients and communicating this to Ms. LSJ.
[146] In R v Ochrym, the Court held:
…the trial judge's factual finding that the appellant "did coordinate and provide [the complainant] with the means to provide sexual services for consideration" does not, of itself, support the conclusion that the appellant exercised control, direction or influence over her movements within the meaning of those terms in s. 286.3(1) of the Code.
…In convicting the appellant under s. 286.3(1) of exercising discretion and influence, the trial judge erred in determining the actus reus of the offence by focusing solely on what the appellant did, without regard to the nature of the relationship between the appellant and the complainant, and the impact of the appellant's conduct on the complainant's state of mind. Sometimes, the nature of the relationship and the impact of the accused's conduct on the complainant's state of mind will be evident from what an accused said or did and what the complainant said or did in response. But that is not the case here.
[147] Having addressed a number of the acts that Ms. Fodor performed to coordinate facilitate and influence the provision of sexual services on the part of Ms. LSJ, I now turn to the nature of their relationship as a necessary part of my analysis.
[148] There is clear evidence before me about the nature of relationship between the Accused and the Ms. LSJ. This is amply demonstrated in the text conversations that occurred between Ms. Fodor and Abdi.
[149] The texts between them on 7th March, 2020 provide a specific example and discuss the prospect of Ms. Fodor getting “into trouble” with her involvement and includes a text from Adbi to her which reads:
“You’ll never get into trouble for this lol L. would have to snitch and that would never happen”
Ms. Fodor responds “L. wouldn’t be that dumb”
The text conversation between Fodor and Abdi continues with his texting
“it’s just a way for you to be with me more often and on top of that make some money with me”
“I’d love for my girl to makes money with me lol goals”
Ms. Fodor responds “Lmaoooo”.
[150] The text conversations between Ms. Fodor and Mr. Abdi make it abundantly clear that it is their joint intention to make money from the provision of sexual services on the part of Ms. LSJ. Ms. Fodor is demonstrated through the numerous text messages to be an enthusiastic and willing participant in this enterprise. It is absolutely clear that this is an exploitative relationship with Ms. Fodor playing a significant role in influencing the day-to-day operation of the sexual services Ms. LSJ provided and which Fodor and Abdi orchestrated.
[151] In assessing the nature of the relationship, I am also assisted by the extensive bank record that were entered as exhibits in the trial. I am mindful that many of the timelines contained in the exhibits for the electronic transfer of funds between Ms. LSJ and Ms. Fodor fall outside of the time frame alleged in the Information for Count 3.
[152] While I do not rely on those particular bank records in respect of Count 3, I do find that I am entitled to rely upon the bank records before me, in their totality, to further support a conclusion in respect of the nature of the relationship between Ms. Fodor and Ms. LSJ. The regular and frequent transfer of funds by Ms. LSJ that shown in these exhibits demonstrates clear pattern of behaviour on the part of Ms. LSJ that is entirely consistent with her regular provision of money to Ms. Fodor that Ms. LSJ earned from her provision of sexual services.
[153] I have been unable to hear evidence directly from Ms. LSJ as to the impact of Ms. Fodor’s actions on her state of mind for obvious reasons. Nevertheless, I am satisfied on the basis of the evidence before me that Ms. Fodor’s numerous and regular acts in conjunction with the unambiguously exploitative nature of her relationship with Ms. LSJ impacted and influenced Ms. LSJ’s mind to the necessary degree and amply meet the threshold for “influence” as defined in s. 286.3(1)(iii) and that I may draw this as a reasonable inference from the evidence before me.
[154] I am satisfied that the Crown has established Ms. Fodor’s guilt beyond a reasonable doubt in respect of this count.
Count 2 – 286.4 – Advertising Sexual Services
[155] Section 286.4 criminalizes knowingly advertising an offer to provide sexual services for consideration. The actus reus of the offence is satisfied by proof that the accused advertised an offer to provide sexual services for consideration. The mens rea of the offence is satisfied if the accused intended to advertise the offer and knew that the offer was for the provision of sexual services for consideration.
[156] Section 286.5(b) provides immunity from prosecution under s. 286.4 to a person who advertises their own sexual services. This means that only a person who advertises the sexual services of another person for consideration may be prosecuted under s. 286.4.
Crown Position
[157] Ms. Gharabaway submits that there is clear evidence through the text messages and material contained in the Axiom report, along with other documentary exhibits that cumulatively support this charge against Ms. Fodor.
Defence Position
[158] Mr. Bytensky submits that there is no evidence clearly linking Ms. Fodor to the posting of the sexual services Leolist advert on behalf of Ms. LSJ. He submits that the evidence supports a conclusion that Ms. Fodor was unfamiliar with the mechanics of the process, that she cannot be shown to have paid for the advert despite being shown as an account holder on the relevant Leolist account. He further submits that the timelines with respect to the posting of the advert and other text conversations do not align. At its highest, Mr. Bytensky submits that there is a text conversation about the posting of an advert but argues that there is insufficient evidence to establish that this occurred on the part of Ms. Fodor.
Analysis
[159] The evidence before me on this count includes the following:
On page 31 of the Axiom report, Ms. Fodor is asked by Abdi to make a “text me app” and to change the number on the Leolist ad. This is clearly in reference to Ms. LSJ when viewed in context. At page 35, Ms. Fodor sends a screenshot confirming that the login information provided granted her access to the Leolist account.
The app logged Ms. Fodor in from the last time she used it and this is acknowledged in the text messages by Ms. Fodor “I’m downloading the app, it logged me in from the last time I used the app”. Ms. Fodor also uses credentials and login details provided to her by Abdi as shown in their text conversations at pp. 34-35 of the Axiom report.
On pages 38-41, Ms. Fodor sends screenshots confirming her intention to repost the ad.
On page 41, Ms. Fodor asks Abdi to “send me her services thingy”. That is the list of sexual services being offered by Ms. LSJ. The services were sent to Ms. Fodor to incorporate into the ad at page 46.
[160] It is common ground between the parties that Leolist is a platform predominantly, although not exclusively, used for the sale and provision of sexual services.
[161] A Leolist advertisement was also marked as an exhibit at this trial. It was posted on June 26, 2020, for Richmond Hill/Markham. The photographs in this advertisement depict Ms. LSJ:
[162] The Leolist account data relating to ID 545993 received by the Human Trafficking Enforcement Team and marked as an exhibit at this trial reveals an additional link between Fodor and Ms. LSJ’s Leolist advertisements.
Under “credit card payments”, ‘Julianna Fodo’ (sic) is listed as the credit card holder associated with the account (pg. 2). The last four digits and the expiry date matches the last four digits and expiry date of Ms. Fodor’s Visa credit card noted in her CIBC records which are an exhibit in this trial. The last letter of Ms. Fodor’s surname is omitted but I am satisfied that this simply represents a typo and identifies Ms. Fodor accurately.
[163] I accept Mr. Bytensky’s submission that even with the extensive evidence before me there is an inconsistency in the timelines shown between the posting of the Leolist advert and some of the text conversations between Ms. Fodor and Mr. Abdi. However, in my view, this is not determinative and I do not accept that the evidence before only reveals a discussion about the posting of an advert for sexual services rather than Ms. Fodor actually posting such an advert.
[164] I am satisfied on the totality of the evidence before me that there is ample evidence to conclude that Ms. Fodor posted an advert for the provision of sexual services on the part of Ms. LSJ as alleged. I find that the Crown has proven this count beyond a reasonable doubt and I find Ms. Fodor guilty.
Count 3 – 286.2(1) Material Benefit from Sexual Services
[165] The Criminal Code of Canada sets out the relevant offence and the presumptions and exceptions to those presumptions under s. 286.2(1) as follows:
286.2 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.
(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.
(4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit
- (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;
- (b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;
- (c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or
- (d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.
(5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person
- (a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;
- (b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;
- (c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;
- (d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or
- (e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.
Position of the Parties
Crown Position
[166] Ms. Gharabaway submits that the combination of the bank records and the contents from the Axiom report provide the necessary evidence in support of this count. The Crown acknowledges that a significant number of financial transfers shown in the banking records and admitted as exhibits post-date the time range alleged in Count 3 of the Information and are from August-December, 2020.
[167] The Crown submits that the date is not an essential element of the offence and that no prejudice accrues to the defence if I rely on them but that in any event, the offence is made out on the basis of the available evidence before me which reveals financial transaction from Ms. LSJ to Ms. Fodor in the relevant time period and that the bank records clearly demonstrate Ms. Fodor receiving a material benefit from Ms. LSJ’s employ in the sex trade.
Defence Position
[168] Mr. Bytensky submits that the timelines are important for this count and that while he accepts there is some use that I could make of the banking records outside of the relevant time period he invites me to focus solely on those transactions within the timeframe as alleged and that these represent the essence of this Count.
[169] Mr. Bytensky submits that the Crown has not met its onus in proving this count and that it has not been shown that Ms. Fodor received a material benefit within the meaning of the offence. He submits that there are innocent explanations that would account for the payments, such as rent payments or the non-interest bearing repayment of loans to Ms. Fodor.
[170] Mr. Bytensky further submits that based upon the figures available during June, 2020 it appears Ms. Fodor spent $1230 at the Edward Hotel which is a location associated with these allegations but only received $820 from Ms. LSJ and as such, if the allegations are true, Ms. Fodor did not receive a material benefit as she was operating at a loss.
[171] Defence counsel submits that the material benefit needs to be connected to an exploitative relationship and that the evidence has a number of equally innocent and plausible explanations that are not connected to deriving a material benefit from the exploitative relationship that Parliament has prohibited. As Defence counsel points out, it is not simply the receipt of a benefit that makes out the offence. Among the various authorities that counsel relies on and which I have reviewed, Mr. Bytensky particularly draws my attention to R. v. Esho, [2017] O.J. No. 5418
Analysis
[172] Section 286.2 criminalizes the receipt of financial or other material benefit knowing that it was obtained from the commission of an offence under s. 286.1. To prove this offence the Crown must establish that the accused obtained a benefit from the sale of sexual services for consideration. The mens rea requires that the accused intended to receive a material benefit knowing that it was obtained or derived from the sex work of the complainant.
[173] The term benefit has no definition in the Criminal Code, but generally refers to the receipt of something of value. Under section 286.2(3), in absence of evidence to the contrary, proof that an accused received a material benefit can be established by evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration. The term “habitually” was considered in Morgan as follows:
[174] As the word “habitually” is not defined in the Code, it should be given its ordinary dictionary definition. Black's Law Dictionary defines it as something that is “usual and customary and is repeated". The Oxford Dictionary defines it as “customarily”, or “by way of habit”, while Miriam-Webster describes it as “regularly or repeatedly doing or practicing something or acting in some manner”.
[175] Section 286.2 outlines the offences and related presumptions and exceptions to those presumptions in respect of this particular offence. Subject to the evidence before the court, different routes are available in support of determining liability under this section. It is not the most straightforward of the Criminal Code provisions.
[176] At the outset, I will make it clear that while it is open to the Crown to argue that the date is not an essential element of the offence, I intend to focus my consideration and analysis solely with the respect to the financial transactions that re-alleged to have occurred in June, 2020 and as alleged in the Information. While other financial transaction may be relevant for other purposes, I shall not consider them here.
[177] Before considering other provisions of the legislation, I shall first turn to the issue of whether the Crown has proven that Ms. Fodor did indeed receive a material benefit as alleged.
[178] In R. v. Esho, the at paragraph 122 the Court stated:
Section 286.2(1) was enacted to replace what was formerly s. 212(1)(j) of the Code, which made it an offence to live “wholly or in part on the avails of prostitution of another person”. The purpose of Parliament in enacting the former provision was to target persons who exploit prostitutes and live parasitically from their earnings.
[179] In Attorney General (Canada) v. Bedford, the Supreme Court held that s. 212(1)(j) was overly broad in that it was capable of capturing conduct that was unrelated to the goal of preventing exploitation. For example, it could include within its reach anyone involved in any kind of business with a prostitute. The stated purpose of S.C. 2014, c. 25, set forth in its title, was "to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford ...”. It is a reasonable inference that Parliament's intention in enacting s. 286.2(1) was not to abandon the goal of protecting prostitutes from parasitic behaviour but rather to narrow the range of prohibited conduct to behaviour that was truly exploitative. That conclusion draws support from the Preamble to the amending Act, which stated, in part:
Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;
Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution.
[180] Mr. Bytensky rightly submits that it is not any benefit that a person receives that will satisfy the ‘material benefit’ threshold. Numerous obvious examples of this present themselves, such as a taxi or Uber driver providing transportation or the interest-free repayment of loan. Defence counsel submits that both of these examples are plausible explanations to account for any benefit Ms. Fodor may have received, along with the payment of rent on the part of Ms. LSJ.
[181] Mr. Bytensky advances his argument with reference to paragraph 123 of R. v. Esho:
The scope of s. 286.2 (1) must be interpreted with Parliament's purpose in mind and by reading the words chosen to give effect to that purpose in their grammatical and ordinary sense: R. v. Jarvis, 2002 SCC 73, at paragraph 77. Parliament has not prohibited the receipt of anything at all from a prostitute, if it is derived directly or indirectly from the provision of sexual services; what it has prohibited is the receipt of a benefit. The word "benefit" is not defined in the Criminal Code. In its ordinary sense, a benefit is an advantage or profit gained from something. Generally speaking, the receipt of something of value from someone else will be a "benefit", but not always. If, for example, a person who has borrowed $100 from a friend pays it back without interest a week later, the friend could not be said to have gained an advantage or made a profit. The repayment would not amount to the receipt of a benefit. And if the person who borrowed the money was a prostitute and repaid the loan with earnings from prostitution the person who was repaid would not, in my opinion, have received "a financial or other material benefit... that [was] derived directly or indirectly" from a prostitution offence. Parliament's focus on the receipt of benefits is consistent with the purpose underlying both that provision and the former s. 212(1)(j), namely to target parasitic behaviour.
[182] With respect to the evidence before me, I am satisfied beyond a reasonable doubt that Ms. LSJ and Ms. Fodor are the respective account holders of the relevant bank records before me and the sender and recipient of the financial transactions shown. There is ample evidence from the judicially authorised production of those accounts to support this finding. The Transfers in June, 2020 originate from Ms. LSJ using an email she has previously employed to one I am satisfied belonged to Ms. Fodor.
[183] Ms. Fodor’s bank records from CIBC and Capital One were marked as exhibits at this trial. LSJ’s Scotiabank records were also marked as an exhibit. Fodor’s CIBC records clearly belong to her. The client summary was last updated on March 24, 2021. Her address is noted as the same address as in the search warrant. Her phone number is also correctly noted. The identification summary outlines Ms. Fodor’s passport and driver’s licence number. They are all consistent with the identification seized from the search warrant.
[184] Among the various financial transactions that I am satisfied were from Ms. LSJ to Ms. Fodor are the following ones by way of example, June 17, 2020- $80; June 18, 2020 - $100, June 18th - $250 (from the same email attributed to Ms. LSJ). Ms. LSJ’s Scotiabank records at page 98 also indicate an e-transfer of $1400 to Ms. Fodor.
[185] The content and the context of the evidence before me in this case in its totality has clearly established the nature of the relationship between Ms. LSJ and Ms. Fodor. It was an undeniably exploitative one and there is no doubt that Ms. Fodor knew with absolute certainty the work that Ms. LSJ was engaged in and the source of her income. Ms. Fodor was instrumental in organising, influencing and facilitating Ms. LSJ’s work.
[186] It is clear to me that the financial transactions she received from Ms. LSJ in between March 7, 2020 and June 27, 2020 amounted to specific instances of her receiving a benefit within the ordinary meaning of that word.
[187] The evidence before me also in my view supports a finding that Ms. Fodor clearly knew that this benefit was derived from an offence under subsection 286.1(1) and that it meets the definition of a material benefit in the statue. Given the nature of the relationship between the parties, the number and frequency of transactions and the context that the evidence inevitably places them in, I find no air of reality to the suggestion that these payments are in the context of a legitimate living arrangement with Ms. LSJ nor any of the other exceptions under 282.2(4). I also note that no proof to the contrary was advanced in this regard.
[188] I find it likely that the evidence supports a finding that Ms. Fodor was “habitually” in the company of Ms. LSJ and that the exceptions under 286.2(5) may be relevant and that it would be open to me to consider these as routes to liability. However, I do not find that I need to rely on these in order to reach my conclusion in respect of this Count. I am satisfied that there was no uncertainty in Ms. Fodor’s mind as to the source of the material benefit she received from Ms. LSJ.
[189] According, I am satisfied that the Crown has proven this Count beyond a reasonable doubt and I find Ms. Fodor guilty.
[190] I now turn to the last issue before me, that of the renewed s.11(b) Application.
Renewed 11(b) Application
[191] Mr. Bytensky on behalf of Ms. Fodor brings a renewed 11(b) Application on her behalf and seeks a stay of proceedings. It is common ground as between the parties that the s.11(b) clock continues to run until the completion of all submissions made on the trial proper. I ultimately heard this Application and the conclusion of counsel’s submissions on December 8, 2023.
[192] On July 19, 2023, I provided my decision in respect of a previous 11(b) Application on behalf of the Accused in respect of a period of 1 month and 26 days in excess of the Jordan timelines for a criminal case in the Ontario Court of Justice.
[193] Following my findings of exceptional circumstances and case complexity I dismissed that application.
[194] Defence counsel now renews an 11(b) Application in respect of the time between June 26, 2023 to December 8, 2023 - a total of 165 days. In light of this renewed Application, this additional delay must be assessed to determine whether a section 11(b) violation has now occurred.
Position of the Parties
[195] Defence Counsel submits that the 165 days delay either lies at the feet of the Crown or is not subject to a waiver of Ms. Fodor’s 11(b) rights or is attributable to a legitimate application for re-opening of the Court’s previous s. 8 Charter ruling which should not properly be attributed to the Defence.
[196] The Crown concedes the delay is presumptively unreasonable and that the onus shifts to the Crown to seek to justify this delay. Ms. Gharabaway submits that the delay in this case is justified by the presence of exceptional circumstances and the particularly complex nature of this case as it has evolved. The Crown submits that for the period from August 17, 2023 to December 8, 2023 (113 days), there was an express waiver of 11(b) provided by Defence counsel and that in addition to this waiver exceptional circumstances arose in respect of this portion of the delay.
[197] The Crown further submits that the period from 26th June, 2023 to 17th August, 2023 (52 days) should be attributed to ‘case complexity’ within the context of this particular case as a whole.
ANALYTICAL FRAMEWORK
[198] R. v. Jordan sets out the analytical framework to determine a s. 11(b) violation as does R. v. Coulter 2016 ONCA 704, 133 O.R. (3d) 433 at paras 34-41:
(1) Calculate the period from the charge to the actual or anticipated end of the trial to determine total delay.
(2) Subtract defence delay from the total delay, which leads to the "Net Delay". Defence delay may arise from a defence waiver, and/or a delay caused solely by defence conduct.
(3) Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice.
(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.
(5) The Crown may rebut this presumption if it establishes the presence of exceptional circumstances. Exceptional circumstances may be a discrete event or a particularly complex case.
(6) Subtract delay caused by any exceptional discrete events from the Net Delay, leaving the “Remaining Delay”.
(7) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the complexity of the case is such that the time the case has taken is justified.
(8) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. Stays below the ceiling are expected to be rare and limited.
Analysis
Total Delay
[199] Both parties agree that the current delay on the 11(b) application in this case is to be calculated from 26th June, 2023 to the date of this 11(b) Application on 8th December, 2023. A total of 165 days.
Procedural History
[200] As I have previously written, the procedural history of this particular case has been markedly less than straight-forward. I do not propose to rehearse the history or details of this case up to the point of my previous 11(b) decision which was rendered on 19th July, 2023 and which covers the period from the point that Ms. Fodor was charged to the 26th June, 2023. Suffice to say from a Jordan perspective, I found that this case and the initial 1 month, a 26-day delay satisfied the necessary criteria of case complexity.
[201] I shall, however, summarize the case history from 26th June, 2023 to 8th December, 2023 when the Jordan clock in this case stops running.
[202] Following an Application for re-opening of my earlier Charter rulings (see paras 5-55 above), the case was remanded from 19th July, 2023 to 17th and 18th August 2023.
[203] On the 17th and 18th August, 2023, it was understood that the parties would make their submissions on Defence counsel’s reopening Application as well as final submissions on the trial proper.
[204] On 17th August, 2023, during the course of his initial submissions on his re-opening Application, Mr. Bytensky raised the potential to seek to advance a new s 8 Charter argument on behalf of Ms. Fodor. Specifically, that she should be granted standing to challenge the judicial authorization allowing the police to seize Ms. LSJ’s Scotiabank records.
[205] Defence counsel requested time to consider this new issue which he acknowledged had only occurred to him as he began his submissions. The matter was remanded to the next scheduled day of 18th August, 2023 for defence counsel to advise the Court and the Crown whether he was seeking to advance this new argument at this late stage.
[206] On 18th August, 2023, defence counsel formally indicated that he sought to raise this fresh Charter issue and believed an argument analogous to principles outlined in R. v. Marakah was the basis for so doing. Defence counsel acknowledged that the Crown would require time to receive, review and respond to this new s.8 Charter argument.
[207] After hearing argument from the parties, the Court provided direction as to the filing of facta and case law and timelines for doing so. The matter was then adjourned to 12th December, 2023 for the matter to be concluded on that date with all applications and submission to be heard.
[208] Subsequent to this, and as a result of efforts on the part of the Court and the parties, earlier dates were secured and the matter was brought forward and remanded to 3rd November, 2023 and 7th November, 2023 to be concluded on these dates.
[209] Late on the evening of 1st November, 2023, Ms. Gharabaway contacted the Court and defence counsel to advise that she did not anticipate now being able to attend on the scheduled November dates due to the fact that she was in the middle of a lengthy jury trial involving two in-custody accused. The matter was a retrial. One of the accused was self-represented. The matter was 66 months old. The trial commenced on September 11, 2023, and was scheduled to last four weeks. The trial was now in the middle of week eight with no end date known at that time.
[210] Further to correspondence between the parties Ms. Gharabaway then learned that the trial judge had determined that they would not be sitting on that trial on 3rd November in order to provide some additional preparation time to the self-represented accused. As such, Ms. Gharabaway attended as scheduled on this matter on 3rd November, 2023 and counsel began submissions as scheduled.
[211] In light of Ms. Gharabaway’s unavailability because of the on-going jury trial, the scheduled return date of 7th November was vacated and a new date was ultimately scheduled of 8th December when all parties anticipated the matter would be concluded. On 8th December, I heard all remaining submissions on all remaining matters in this case.
Analysis
[212] In support of his renewed 11(b) Application, Mr. Bytensky relies on the Supreme Court of Canada’s decision in R. v. Cody, 2017 SCC 31. In Cody, the parties determined that a previously filed Agreed Statement of Fact (ASF) contained an error. This led to a series of defence applications, including an application to re-open, and an application for recusal of the trial judge based on a reasonable apprehension of bias. According to the Supreme Court, while the defence application for recusal was found to be meritless and “illegitimate” (and the 2.5-month time period associated with the recusal application was deducted as defence delay), the application to re-open was found to neither be defence delay nor an “exceptional circumstance” (see para. 61)
[213] Mr. Bytensky submits the Crown does not suggest that the defence request to re-open the Charter ruling was frivolous or, in the words of Jordan and Cody, “illegitimate” and that the resultant delay from 26th June, 2023 to 17th August, 2023 must be viewed through the Jordan and Cody lens.
[214] While defence counsel makes no suggestion of bad faith on the part of the Crown, he submits that in line with the decision in Cody, the reopening application cannot be considered “exceptional circumstances” within the Jordan guidelines and therefore exempt from the overall period of net delay.
[215] As it relates to the time period from 26th June to 17th August, 2023, I agree with Mr. Bytesnky in his assessment that the 52 days attributable to the re-opening argument does not amount to a discrete event amounting to exceptional circumstances in this case. Exceptional circumstances are not included in the Jordan ceiling count. Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Providing they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
[216] The reopening application brought by defence counsel, which I have addressed above in paras 5-55 raised two legitimate issues that needed to be addressed by the court. The 3rd remaining issue was predicated on Defence counsel’s apparent misunderstanding of what was contained in the disclosure he had received and was subsequently abandoned by him on the day of the reopening application on the basis that he accepted nothing turned on that particular issue.
[217] However, this is not dispositive of the 11(b) analysis in this case.
[218] I turn now to the appearance on 17th August, 2023 at which defence counsel first raised the new and novel s. 8 Charter issue of standing in respect of some of Ms. LSJ’s financial records.
[219] Defence counsel acknowledged the emerging nature of this issue and advised the court “I haven’t mentioned it to [the Crown], and frankly, I candidly and honestly say to you that the first notion that this might even apply came to me in the midst of my submissions”. The matter was the remanded to the next day for defence counsel to outline and confirm his final position on this issue.
[220] When the matter returned on 18th August, 2023, Mr. Bytensky advised that he now sought to bring an Application on behalf of Ms. Fodor for standing to argue a s. 8 Charter breach as it related to certain financial records of Ms. LSJ. Ultimately, the Court granted leave to hear this application and required counsel to provide materials in respect of this application and for the Crown to have reasonable time to receive, review and consider the argument and prepare its response.
[221] With respect to the accompanying delay that this created to the trial, Mr. Bytesnky advised the Court “I assure Your Honour whatever delay is caused from today until the next day is not something I’m going to be standing up and saying should be part of the new 11(b) application…it is not going to be a s. 11(b) delay that we will be later talking about…I won’t be seeking to quarrel or punish the Crown for it from a s. 11(b) context later.” (p 5 Transcript).
[222] Following a further exchange with the Court on the issue of delay at pages 21 and 22 of the Transcript, Mr. Bytensky indicated “I accept that the delay from today until whatever date you pick is my responsibility or it’s a neutral responsibility, however you want to characterize it…The bottom line is that from today until when we return s. 11(b) is not going to be raised for this period.”
[223] The one and only apparent qualification that was provided by defence counsel was with respect to the s. 11 (b) waiver was made on p 23 of the transcript with respect to the reopening argument that had been advanced wherein defence counsel submitted “I respectfully say that how you treat the reopening issue and what your reasons are may determine whether or not a newer or refreshed s.11(b) application should be pursued.”
[224] On page 24 of the Transcript the following exchange is recorded between the Court and defence counsel:
The Court: “the period moving forward from today until the date that we are able to return to litigate this …is a period of time that you accept lies at the feet of the defence?
Mr. Bytensky: “Yes, I agree, or as neutral for other reasons. That’s fine”.
[225] In correspondence on 2nd November, 2023 between the parties and the Court arising from the conflict Ms. Gharabaway found herself in her jury trial, Mr. Bytensky then advised:
“While I have sympathy for the situation Ms. Gharabaway finds herself in, I must make it clear, respectfully, that my client’s rights under section 11(b) are being ignored by this further delay. Section 11(b) has been raised more than once by Ms. Fodor and continues to be very much in play. Respectfully, the fact that another accused in another case is in custody, and has been in the system for 66 months, is no answer to my client’s personal right to be tried within a reasonable time. When defendants make late requests for adjournments of their trial, perhaps because their lawyer is involved in a different matter that has run longer than initially expected, they are typically required to waive their 11(b) rights in connection with the request, or to otherwise make it clear on the record that any resulting delay will be considered a defence request. Here, the situation is the reverse. If it is understood that this resulting delay from my friend’s adjournment is with prejudice, in the sense that the section 11(b) clock continues to run, then my client accepts the inevitability of this request and will return to continue her proceedings as soon as possible, and as and when directed. Otherwise, there should be a proper record for the current adjournment request and I will have my comments that I can make tomorrow (by zoom), so if any further ruling regarding s.11(b) is required, the Court will have a proper basis upon which this aspect of the delay can be evaluated.”
[226] It is clear that Mr. Bytensky’s correspondence on 2nd November is at variance with the unambiguous 11(b) waivers that he provided on the record on 18th August when it was anticipated that the return date to conclude this matter would be 12th December, 2023.
[227] Earlier dates of 3rd November and 7th November were secured and the Crown was ultimately able to attend as scheduled on 3rd November but not 7th November for the reasons given above. The matter was concluded on 8th December, 2023 which was 4 days earlier than was originally anticipated on 18th August, 2023.
[228] It is clear that defence counsel changed his position from an unambiguous waiver from 18th August to the conclusion of this case to one of asserting Ms. Fodor’s 11(b) rights once it became apparent the Crown may not be able to attend continuing dates as originally anticipated. This may well be seen as opportunistic on the part of defence counsel in the circumstances given the position that was previously adopted. However tactical a decision this may have been, defence counsel is entitled to seek to revise his position and resile from it. This is less surprising if circumstances change. It seems clear that Mr. Bytensky seeks to do so in this case and it is the most prudent conclusion for the Court to reach despite the conflicting positions advanced by defence counsel.
[229] The issues for this court to determine on this renewed s.11(b) application are two-fold.
i. How should the delay from 18th August, 2023 to 8th December, 2023 be treated?
ii. How should the 52 day period of delay that arose from the reopening application be treated?
[230] The delay from 17th August, 2023 to 8th August was attributable to 2 factors. The genesis of the delay was the new and novel Charter application brought by defence counsel. Defence counsel had given an unconditional 11(b) waiver until at least the anticipated conclusion of this trial on 12th December, 2023. Notwithstanding that this case ultimately concluded earlier than was anticipated on 8th December, defence counsel seeks to argue that this period delay is unreasonable and is not attributable to the defence. I disagree.
[231] The only reason this case did not conclude as planned on the August dates was solely attributable to Defence counsel and the new Charter application. Mr. Bytensky fairly acknowledged at the time that any delay until the conclusion of the case lay at his feet. While he is perfectly at liberty to subsequently change his position on this, it does not change the manner in which this court attributes that particular period of delay.
[232] In broad terms delay caused by defence, conduct applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para 66.) Not all delay caused by defence counsel should be deducted.
[233] As the Court articulated in Cody at para. 30:
The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64).
[234] R. v. Cody provides further assistance and guidance in para 32:
“Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.”
[235] I am satisfied that, in line with Defence counsel’s initial waiver, the period of time from 17th August to 2023 to 8th December, 2023 fairly and reasonably lies solely at the feet of defence counsel. In my view, it is the only appropriate and reasonable conclusion to draw and to do otherwise would, in my view, support “illegitimate defence conduct” in a Jordan sense (to be clearly distinguished from any ethical misconduct).
[236] This is four days less than originally anticipated and originally agreed to by defence counsel. Any delay here only arose because of the new and substantial Charter motion that was raised and pursued in Mr. Bytensky’s submissions on 17th August. It is trite to say that this required time to formally provide the argument and any authority in support of it and for the Crown to consider and respond to this significant issue of law.
[237] Scheduling of dates throughout this case has too often been in an undesirable state of flux. While each adjournment or fresh new date was ultimately found to be necessary, it is hard not to conclude that with greater foresight and consideration of the potential issues this case would have suffered from considerably less delay and disruption.
[238] While I find that the entirety of the delay from 17th August to 8th December is defence delay as originally envisaged, I will also address the circumstances of the adjournment from 3rd November to 8th December as a result of Ms. Gharabaway’s scheduling conflict. Through no fault of hers and in circumstances that were not reasonably foreseen or foreseeable her complicated jury re-trial significantly over ran.
[239] The Court in Jordan stated that “If the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
- R. v. Jordan, supra, a para. 73
[240] Ms. Gharabaway found herself in the unenviable position of simultaneously being scheduled to appear in 2 ongoing and increasingly complex substantial trials.
[241] In Jordan, the Court cautioned trial judges to be alive to the practical realities of trials. It is recognized that despite the best efforts of all concerned they are not well-oiled machines immune from external factors and human frailty. Therefore, when unforeseen circumstances arise close to a presumptive ceiling or trial date, courts should bear in mind that it will be more difficult for the Crown and court to respond with a timely solution. For that reason, unforeseeable or unavoidable delays occurring with trials that are scheduled to conclude close to the ceiling will qualify as exceptional circumstances.
- R. v. Jordan, supra, at paras. 73-74
[242] Mr. Bytensky submits that it would have been reasonable in the circumstances of this case for Ms. Gharabaway to have sought a Crown colleague to stand in for her and to continue this trial as scheduled. He submits that this would have been reasonable in the circumstances and an appropriate mitigation of the proposed delay from 3rd November to 8th December. This would have allowed the trial to conclude on 7th November, 2023.
[243] I disagree. Given the lengthy, complex and organic nature of this trial, I do not consider that it would have been reasonable or appropriate for another Crown to step into the breach of this trial at three days’ notice. It would have served no one’s interests, including those of Ms. Fodor for a Crown to step into this case on the final day of submissions, where the Crown would be providing submissions on the various defence applications and the trial proper.
[244] As the court acknowledged in Jordan, even with the best of planning, trials are not immune from external factors. There is no information before me to suggest that the over running in the jury trial was reasonably foreseen or foreseeable The reality was that Ms. Gharabaway could not be in two trials at once. While there may well be many cases where a Crown could reasonably and meaningfully step in at short notice, this case is not one of them and nor would it appear was the jury trial.
[245] I am satisfied, that notwithstanding my attribution of the delay to the defence in its entirety from 17th August to 8th December, 2023 that in addition to this finding, any delay arising from the jury trial conflict from 3rd November to 8th December would amount to exceptional circumstances within the Jordan guidelines.
[246] In the event that this was the only basis to determine the allocation of this particular delay, then even on the revised position of waiver by defence counsel, any delay from 17th August to 3rd November, 2023 would clearly be defence delay for the reasons given above.
Reopening Application and 52 Days of Delay
[247] I now turn to the remaining issue of the reopening application and the 52 resulting days of delay.
[248] As indicated above, I agree with Mr. Bytensky’s submissions that in light of the decision in R. v. Cody, 2017 SCC 31, the resulting delay of 52 days arising from the reopening application is not a discrete event that amounts to “exceptional circumstances.” Despite my rulings in respect of the arguments advanced by defence counsel on the reopening Application, this does not detract from the legitimacy of them being advanced. Discrete events are one category of exceptional circumstances recognized in Jordan.
[249] The second category of exceptional circumstances is concerned with particularly complex cases.
[250] Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80).
[251] A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).
[252] Complex cases are those that because of the nature of the evidence or issues, require an inordinate amount of trial or preparation time such that the ensuing delay is justified. Complexity does not entail stand-alone deductions. Instead, once relevant deductions for defence-caused and discrete events are made, a qualitative assessment will be undertaken to determine whether the complexity of a case overall justifies additional time to trial above the ceiling.
[253] Whether complexity in the evidence or issues that arise in the case justifies the time to trial is “a determination falling well within the trial judge’s expertise.” However, deference to that factual determination is premised on the requirement that the exception be interpreted correctly as a matter of law.
- R. v. Majeed, [2019] O.J. No. 2610 at paras. 10-11
- Ontario (Ministry of Labour) v. Nugent, [2019] O.J. No. 6425 at paras. 24-28
[254] In determining whether a case is particularly complex, the court must look at the entirety of the case, from start to finish. Simply because a case may seem relatively easy to present at trial does not mean that, in the early, stage it was not complex.
- In R. v. Jordan at para. 77
[255] As I indicated in my previous s.11(b) ruling, it also logically follows that simply because a case may seem relatively easy to present at trial does not mean that, in the later stage, it was not complex too. That has increasingly been the reality in this particular case both at the point in time of the original s. 11(b) Application and subsequently.
[256] Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, requires an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time.
- R. v. Picard 2017 ONCA 692, 137 O.R. (3d) 401 at paras. 53-55, 62
- R. v. Cody, supra, at para. 64
- R. v. Jordan, supra
[257] Complexity of the case “as a whole” refers to the entirety of the prosecution, not the state of the prosecution at day one of trial. It is a legal error to fail to consider the complexity at the outset of a prosecution (for example, as it relates to the extent of the disclosure, the time needed for narrowing of issues in the context of the continuing JPT’s and settlement upon agreed facts) as such factors add to the time required to get the matter to trial.
- R. v. Picard, supra, at para. 40
- R. v. Houle, 2017 ONCA 772, [2017] O.J. No. 5170 at paras. 67-72
- R. v. Lopez-Restrepo, 2018 ONCA 887, [2018] O.J. No. 5873 at paras. 36-38
[258] Case complexity is not a sole proprietorship, the exclusive business of the Crown. Where the defence’s approach to the litigation injects a degree of complexity to the proceedings, these factors are also relevant to the reasonableness of the delay.
- R. v. Faulkner, 2018 ONCA 174, [2018] O.J. No. 1045 at para. 178
[259] A finding that the overall time to trial is justified on the basis that the case is sufficiently complex ends the inquiry. Where the delay is found to be reasonable relative to the complexity of the case there will be no stay.
- R. v. Jordan, supra, at para. 80
[260] Mr. Bytensky submits that this case cannot be considered particularly complex and submits on his renewed s.11(b) application that no exceptional circumstances exist to justify any delay in excess of the Jordan threshold. I disagreed with Mr. Bytensky in my previous 11(b) ruling and I disagree with him in this one.
[261] I previously found that the nature of the issues raised by the defence has taken a prosecution that initially may not have appeared to be especially complex and turned into an involved, complex one. That reality has continued in this case since 26th June, 2023.
[262] I shall not rehearse the contents of my previous s. 11(b) ruling but the renewed analysis required of me here is assisted by a brief summary of the issues so far that have been raised by the Applicant and addressed and/or ruled upon by the Court:
i. Whether the Applicant’s ss. 7, 11(e) and 11(f) Charter rights were violated by the press release. Although this application was ultimately abandoned on the first day of scheduled argument, materials were still prepared and submitted by both parties and reviewed by the Court.
ii. Whether the interviews conducted by the police as a witness violated the Applicant’s ss. 7 and 8 rights. Although this application was ultimately abandoned on the first day of scheduled argument, materials were still prepared and submitted by both parties and reviewed by the Court.
iii. Whether the Applicant’s s. 9 rights were violated when she was arrested.
iv. Whether the USB seized by the police in conjunction with a homicide investigation constituted an “electronic device” and whether this item, along with several others, was seized in violation of the Applicant’s s. 8 rights.
v. Whether the tech crimes civilian who extracted the information from the USB seized by the police needed to be qualified as an expert to give evidence at the trial proper.
vi. whether proposed adverts from the Leolist website complied with the provisions of the Canada Evidence Act and whether they were inadmissible hearsay.
vii. seeking an independent opinion of the technological challenges involved in unlocking Ms. LSJ’s cell phone.
viii. Defence counsel’s application to reopen the earlier s. 8 Charter ruling on this case on three distinct grounds, one of which was subsequently abandoned.
ix. An application for standing and a new s. 8 Charter motion and on the part of the Ms. Fodor with respect to some of Ms. LSJ’s bank records
x. A renewed s. 11(b) application
[263] As I have previously indicated, I accept that at first blush, this case does not superficially possess the hallmarks of particular complexity. It was originally scheduled to be completed in 3 days. It focuses on only one accused, and I accept that it has not involved a large number of witnesses and nor, in light of my earlier ruling, has it required expert evidence.
[264] However, the genesis of this case and its constant accompaniment has been the homicide case with respect to Ms. LSJ’s death. While they are distinct cases there have been significant points of overlap given Ms. LSJ’s connection with both cases. This duality has inevitably added to the complexity of what may otherwise have been a more straightforward human trafficking case.
[265] I do accept that a feature of this case has involved voluminous disclosure as well as overlapping investigative requirements that have been inextricably linked to the homicide case. I am also mindful of the guidance provided in Jordan and referenced previously that:
“in determining whether a case is particularly complex, the court must look at the entirety of the case, from start to finish. Simply because a case may seem relatively easy to present at trial does not mean that, in the early [or later] stages it was not complex.”
- R. v. Jordan at para. 77.
[266] As I indicated in my earlier s. 11(b) ruling, “the increasingly complicated and varied landscape that evolved once this trial started makes it extremely difficult to point to one particular event that was single-handedly responsible for a particular period of delay.”
[267] Again, it is important that I emphasize that defence counsel was perfectly entitled to bring these various applications. None were obviously frivolous or vexatious although their timing and their apparently organic nature undoubtedly complicated this trial and impacted both its length and its complexity.
[268] A vigorous and professional defence is a vital ingredient of the adversarial trial process. No counsel should be discouraged from bringing appropriate applications. However, as I have previously stated, advancing a series of Applications in a trial with an increasingly complex tapestry inevitably has practical consequences for the time management of that trial and that reality cannot be ignored.
[269] I do find that the defence approach to the litigation in this case and the emergent issues continued to inject a degree of complexity that significantly impacted the proceedings. I found that was the reality in my previous s. 11(b) ruling and I find it is the reality in this one.
Conclusion
[270] I am aware the Court is not required to engage in a quantitative analysis once the necessary determination has been made that case complexity is satisfied I do find the Crown has established that there was a requisite degree of complexity that emerged throughout this trial as a whole that has justified the delay it has incurred in excess of the presumptive threshold and that in this particular case this period of delay, is not markedly excessive delay or unreasonable.
[271] Accordingly, for the reasons set out above, the Application for a stay of proceedings is dismissed.
Summary of this Judgment
[272] I am aware that a number of substantial issues have necessarily been considered in this judgment. With a view to providing some measure of clarity to the parties I will summarize the foregoing;
- I allowed defence counsel’s application to reopen my earlier Charter ruling. I have heard and considered the submissions on the reopening as well as the supplementary arguments that were advanced. I am satisfied for the reasons given that there would be no change to the ultimate determination I originally made in my s 24(2) analysis. I am also satisfied that on the basis of revised material and information that would properly have been available to the issuing justice that production orders could have issued.
- I do not find that it was objectively reasonable for Ms. Fodor to believe that she possessed a reasonable expectation of privacy in the relevant banking records of Ms. LSJ and accordingly I do not find that she has standing to advance a s.8 Charter argument in that regard.
- I am satisfied beyond a reasonable doubt of Ms. Fodor’s guilt in respect of the essential elements of each of the three counts she faces and find her guilty on each of those three counts.
- I dismiss the renewed s. 11(b) Application.
Released: February 20th, 2024
Signed: Justice Michael Waby
