Court File and Parties

COURT FILE NO.: 13-SA-5092 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – MOHAMED KAMAL SLEIMAN Applicant

COUNSEL: James Bocking, for the Respondent Crown Paul Lewandowski, for the Applicant

HEARD: August 16, 17, 22 and September 24, 2018

RULING ON S. 7 AND S. 11(B) CHARTER APPLICATION

Toscano Roccamo J.

Nature of the Application

[1] The Applicant alleges that failures by the Ottawa Police Service (“OPS”) to “adequately investigate, gather and preserve evidence” related to sexual assault allegations made by T.P. “forced” him to needlessly engage in a Gardiner Hearing (the “Hearing”) and violated his right to make full answer and defence in contravention of s. 7 of the Canadian Charter of Rights and Freedoms. [1] The Applicant further asserts that the requirement to engage in the Hearing gave rise to an infringement on his s. 11(b) Charter right to a trial without delay. [2]

[2] Accordingly, the Applicant invites this court to distance itself from the conduct of the state and grant a stay of proceedings. [3] In the alternative, the Applicant requests a stay of the Dangerous / Long-Term Offender initiated by the Crown. [4]

Issues

[3] The main issues raised in this Application are:

i. Did the alleged failure on the part of the OPS to properly investigate sexual assault allegations made by T.P. infringe Mohamed Sleiman’s (“Sleiman”) right to make full answer and defence and right to a fair trial in accordance with s. 7 of the Charter?

ii. Did the alleged failure on the part of the OPS to gather and preserve evidence from Pita Pizza, Costco, and the St. Laurent Mall, as well as text messages dating back to August 2013 from T.P.’s cellular phone constitute an infringement on Sleiman’s right to make full answer and defence and right to a fair trial as required under s. 7 of the Charter? Would an allegation that such evidence was destroyed by police give rise to a remedy for abuse of process?

iii. Did these alleged failures require Sleiman to needlessly engage in the Hearing, thereby infringing on his right to a trial without delay in accordance with s. 11(b) of the Charter?

Background of the Case and Charter Application

[4] Sleiman admitted to having sexual intercourse with T.P. on October 20, 2013, and due to her status as a minor and inability to consent at the relevant time, pled guilty at the outset of trial on February 22, 2016 to a number of offences, including: [5]

i. Sexual interference, contrary to s. 151 of the Criminal Code R.S.C., 1985, c. C-46;

ii. Sexual assault, contrary to s. 271 of the Criminal Code; and

iii. Breach of probation, contrary to s. 733.1(1) of the Criminal Code.

[5] In addition to the above charges, Sleiman was also charged with forcible confinement, as well as threats to cause death and bodily harm. [6] Sleiman pled not guilty to these charges. [7] The Hearing was required to establish the aggravating factors related to the sexual interference and assault charges. [8] The main issue at the Hearing centered around whether T.P. voluntarily entered Sleiman’s car and whether the subsequent sexual encounter was voluntary. [9]

[6] The Crown’s position was that T.P. was vulnerable, lacked legal capacity to consent to sexual activity, and was psychologically compelled by Sleiman to engage in sexual intercourse with him. [10] The Crown alleged that during their encounter, Sleiman pulled T.P. into his car, forcibly confined her while he drove around for nearly two and a half hours, and threatened to shoot her and harm her family after sexually assaulting her. [11]

[7] The Defence’s position at the Hearing was that the encounter between Sleiman and T.P. was voluntary, and flowed from a relationship that had developed between the parties; at no time did Sleiman force T.P. to meet with him, enter his vehicle, or engage in sexual relations. [12] It was a classic ‘he said, she said’ situation, the outcome of which relied heavily upon the credibility of T.P.

[8] With respect to T.P.’s evidence, I found that it was “thoroughly undermined in ways that went far beyond mere inconsistencies on peripheral matters such as time and location.” [13] Most significantly, video surveillance from Silver City Convenience Store laid in question whether T.P. intended to return home after making a purchase; T.P. had a history of lying to her parents and not returning home; and T.P’s assertion that her meeting with Sleiman in the parking lot of the convenience store was purely by chance was contradicted by text message evidence [14]. The text message evidence used to challenge T.P.’s credibility was entered into evidence by the defence, and was never provided to the defence in Crown disclosure. [15]

Applicant’s Position

[9] The Applicant submits that at the outset of the trial, Sleiman pled guilty to statutory sexual assault, and that despite negotiations, the Crown did not accept his version of events and insisted that he admit the sexual encounter with T.P. was non-consensual. [16] Sleiman was not willing to admit the encounter was involuntary, thereby requiring the matter to be set down for a Hearing. [17]

[10] The Applicant asserts that the following factors forced Sleiman into the Hearing, and that because of this, his Charter rights were infringed: [18]

i. The police failure to even attempt to challenge T.P.’s flawed narrative in any way;

ii. The police failure to address important discrepancies between their own civilian witnesses that ran counter to T.P.’s narrative;

iii. The police failure to follow up on vital leads, including Ms. S. and T.P.’s best friend, C..

iv. The police failure to question whether and why T.P. would be lying about details in her statement; and

v. The police failure to gather and preserve evidence and non-evidence including but not limited to her cellular phone messages, video evidence from Pizza Pita, Costco, and St. Laurent Mall.

Respondent’s Position

[11] The Respondent submits that any deficiencies which may have existed in the OPS investigation into the Sleiman matter do not give rise to a Charter violation. [19] Further, the Respondent asserts that any missing disclosure application should have been brought prior to trial, because a breach of s. 7 affects an accused person’s right to a fair trial. [20] The Respondent hypothesizes that, had the application been brought prior to trial, the court would have allowed the matter to proceed and then subsequently weighed the non-disclosure against the impact upon the Accused’s right to a fair trial and full answer and defence in accordance with Supreme Court of Canada’s direction in R. v. La, [1997] 2 S.C.R. 680. [21]

[12] The Respondent asserts that if there was missing disclosure, it did not impact the Respondent’s right to a fair trial because acquittals were entered on the charges in question, and because the Applicant himself does not allege that he did not receive a fair trial. [22]

[13] Finally, the Respondent requests that the Applicant’s s. 11(b) Charter claim be dismissed on the grounds that the Applicant waived his claim to any violation under this section of the Charter when he failed to move for a stay of proceedings in advance of the Hearing. [23]

Issue 1: Did the alleged failure on the part of the OPS to properly investigate sexual assault allegations made by T.P. infringe Sleiman’s right to make full answer and defence and right to a fair trial in accordance with s. 7 of the Charter?

[14] The Applicant argues that his right to make full answer and defence and right to a fair trial was infringed by the OPS’ failure to properly investigate allegations against him, to the point that the OPS went “above and beyond” in its attempt to promote T.P.’s narrative, particularly in areas where it was inconsistent. [24]

[15] The Applicant asserts that T.P.’s video statement to police was riddled with inconsistencies and that Detective Daniel Riopel, the interviewing officer, testified that he himself had some concerns about the accuracy of her statement on some topics. [25] The Applicant also states that the Detective Riopel felt it necessary to lead T.P. at times on rudimentary points. [26] The Applicant contrasts T.P’s interview with that of Sleiman, highlighting the fact that Detective Riopel employed a deliberately insulting interview technique which tended to confirm that he had already made his mind up about the charges prior to interviewing Sleiman. [27]

[16] The Applicant offers a description of the “current culture within the criminal justice system”, driving the government’s as yet unfulfilled attempts to pass legislation curtailing preliminary inquiries, and requiring reverse disclosure in sexual assault cases, [28] as the climate within which the OPS approaches investigation of sexual crimes.

[17] In arguing that “Ottawa is not that far from London”, the Applicant further refers to the Liam Allan case in England, in which the London Metropolitan Police were said to have adopted a “misguided we believe” mantra, resulting in a failure to adequately investigate sexual assault allegations. [29] In the Allan case, the police failed to disclose exculpatory text messages related to a sexual assault allegation until the trial was already underway. [30] Following the disclosure, the trial judge dismissed the charges, and Mr. Allan received an apology from the police. [31] There was no evidence led to suggest that the text messages were deliberately withheld. [32]

[18] At the outset, it should be observed that at paragraphs 119-122 of his factum, the Applicant relies upon the content of articles related to the Allan case to suggest that the disclosure issues faced by London police were due to their view that all complainants were incapable of lies. The Applicant argues that, in his case, the OPS similarly failed to conduct adequate investigation to address inconsistencies in T.P.’s narrative. However, in the Allan case, it was an officer who was mistaken in thinking he had examined the entire download from the complainant’s phone, when he had not. The contents of the download were handed over to the defence as soon as they were discovered. Further, an important distinction between the case at bar, and that to which the Applicant draws a parallel, is that the Applicant had possession of the missing text messages prior to the Hearing.

[19] Without offering any substantiation for his position, the Applicant maintains that by adopting the “we believe” mantra, police are failing to properly carry out investigations where sexual assault allegations are made. The Applicant contends that “[t]he failure to collect videos, text messages, and otherwise scrutinize the complainant’s nonsensical statement is symptomatic of a dogmatic approach to the investigation of sexual assaults.” [33]

[20] With respect to this issue, the Crown’s position is that there was no inadequate investigation conducted in this matter, and even if there was, a Charter violation stemming from an inadequate police investigation does not exist in law. [34]

Analysis and Conclusion on Issue 1

[21] The law establishes that an accused does not have the right to direct the course of any police investigation. Prosecutorial authorities, and not the defence, dictate its course. [35] The law is well settled that an accused does not have a constitutional right to an adequately investigated case, nor does the accused have a right to a particular kind of disclosure, or type of investigation. [36] Further, disclosure rights of the accused do not require the police to investigate defences, nor are they required to collect and record evidence in the most probative manner. [37]

[22] This chain of reasoning is consistent with the civil approach to the tort of negligent investigation, which dictates (among other things), that police are “not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds”. [38] When investigating a case, all factors must be considered, but this does not impose the additional burden to seek out other exculpatory factors or innocent explanations. [39] Police form part of an investigative body, not an adjudicative one. [40] In this vein, while police do weigh evidence to a certain extent in investigating crime, they are not required to evaluate it according to legal standards, nor are they required to make legal judgments. [41] Both the Crown and police are involved in the decision-making process on whether an accused should stand trial. However, the role of the police is to gather and evaluate evidence, leaving it to the Crown to decide whether the evidence will support a conviction. [42]

[23] On the one hand, the Applicant expressly acknowledged that there was no abuse of prosecutorial discretion in the handling of his case, while at the same time, he points to multiple deficiencies in the police investigation and suggests that because of them, Sleiman should never have been prosecuted for the aggravating charges. However, the Applicant failed to acknowledge is that it is not the role of police to advance a prosecution. The prosecutorial role encompasses the discretion of whether to bring forward the prosecution of a charge laid by police. [43] It also encompasses the discretion to enter a stay of proceedings, or withdraw charges, among other things. [44] Prosecutorial discretion involves “ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for.” [45] The decision taken by a prosecutor in the exercise of prosecutorial discretion is accorded great deference, and “courts cannot interfere except in such circumstances of flagrant impropriety, or in actions for malicious prosecution.” [46] Where there is an abuse of process on the part of the Crown, the courts may intervene, but will only do so in the clearest of cases. [47] The Court, however, will not intervene and grant remedy where an applicant simply establishes that the investigative process does not unfold as it ought to have. [48]

[24] The Applicant does not argue that the Crown engaged in malicious prosecution, or an abuse of process. The decision to charge Sleiman was made by police; however, the decision to prosecute him fell squarely within the Crown’s discretion. It follows, therefore, that although there were noted deficiencies in the police investigation, deference must be shown to the Crown, and the Applicant has established no basis for the Court to intervene in the decision to prosecute.

[25] I add, however, that while police are not required to investigate defences, or seek out exculpatory evidence, this does not preclude the Defence from making investigative requests. [49] While the police have no legal obligation to undertake any investigatory work for an accused, the Crown must give such requests serious consideration. [50] In this case, the Applicant lists a number of perceived deficiencies in the investigation, including the failure to follow up with Ms. S. and T.P.’s best friend, C., which would have shed light on the relationship between T.P. and Sleiman, or to investigate the complaint made by T.P. regarding her encounter with the Lebanese males at the St. Laurent shopping mall. If the Applicant felt that these investigations were of vital importance to the right to make full answer and defence in this matter, it was open to him to make a request to the Crown for further investigation by the police. However, no record of any such request has been brought to the court’s attention.

[26] Although Detective Riopel admitted to some concerns about the truthfulness of the statements made by T.P. at the Preliminary Inquiry, I accept the Crown’s argument that other grounds existed to pursue charges, notably confirmation that Sleiman’s DNA was found within T.P., and that her family expected her home within 10 to 15 minutes of going to Silver City Food Mart. It was not Detective Riopel’s place to weigh the evidence to a legal standard.

[27] Further, while the Applicant contends that an adoption of the “we believe” mantra is resulting in inadequate police investigation in sexual assault cases, his suggestion that T.P.’s text messages with Sleiman revealing their relationship, and discussion of a plan to engage in sexual encounters should have been accepted by police as proof positive that “she wanted to have sex with him” is consistent with rape myths and is a chain of reasoning inconsistent with jurisprudence and legislation. Similarly, to accept the Applicant’s contention that the police should have been skeptical of T.P.’s behaviour following the assault, and his questions about why she relied upon her friend to identify Sleiman, and had paramedic’s contact her parents to inform them of the rape [51] would also be prohibitive reasoning, having regard to the dicta of L’Heureux-Dubé J. in Seaboyer who observed that: “[t]he woman who comes to the attention of the authorities has her victimization measured against the current rape mythologies, i.e. who she should be in order to be recognized as having been, in the eyes of the law, raped; who her attacker must be in order to be recognized, in the eyes of the law, as a potential rapist; and how injured she must be in order to be believed. [52]

[28] The chain of reasoning that the Applicant invites the Court to adopt, by concluding that the police should have outright discredited the allegations of T.P., is wholly contrary to that required by law. In this case, testing the fruits of the police investigation and ultimately finding that T.P.’s credibility was not sufficient to overcome the Crown’s burden of proving the case beyond a reasonable doubt, was quite properly left to the Court.

Issue 2: Did the alleged failure on the part of the OPS to gather and preserve evidence from Pizza Pita, Costco, and the St. Laurent Mall, as well as text messages dating back to August 2013 from T.P.’s cellular phone constitute an infringement on Sleiman’s right to make full answer and defence and right to a fair trial as required under s. 7 of the Charter? Would an allegation that such evidence was deleted by police give rise to a remedy for abuse of process?

[29] The Applicant has advanced very serious allegations as against the OPS to the effect that key pieces of evidence were excluded from disclosure, destroyed by police, or not collected, as follows:

i. Key text messages on T.P.’s cellular phone that contradicted her evidence: The Applicant submits Detective Riopel failed to require a data dump of T.P.’s cellular phone limiting disclosure to text messages available for October 20-21, 2013. This was despite being informed by T.P. that text messages between herself and Sleiman dated as far back as August 2013, and despite having the Investigative Action of Detective Ryan Smith revealing that T.P. received text messages from Sleiman while in the ambulance and at the hospital, although Detective Ryan failed to make note of the number and content of text messages. The Applicant goes so far as to suggest that key text messages between T.P. and Sleiman were purposely deleted by police. The Applicant adds that forcing Sleiman to disclose his own cellular phone records of his interaction with T.P. would have violated his right to remain silent.

ii. Video surveillance footage from Pizza Pita that may have contained important parking lot footage: The Applicant points out that Detective Riopel reviewed only 4 of 5 available dates, and of those only reviewed the footage between the time slots of 4 and 6pm, knowing that the accuracy of the date and time stamps may have been off. The officer testified that the footage contained “negative results”; admitted that he made no attempt to preserve the video, or to engage the High-Tech Crime Unit’s expertise to assist him. The Applicant states that “he [looked] at irrelevant dates and times, [gave] up, and [returned] the PVR.” [53]

iii. Video surveillance footage from the Costco parking lot: T.P. testified that she was dropped off by Sleiman in a Costco parking lot. The OPS officer reviewed video surveillance videos, but did not preserve them.

iv. Video surveillance footage from St. Laurent Shopping Centre: Detective Riopel received a complaint from T.P. that she was approached by 3 Lebanese males at St. Laurent Shopping Centre in early December 2013, who made ominous references to Sleiman. Detective Riopel went to the mall to investigate within 1 hour of the complaint and reviewed video surveillance that did not contain relevant information, seized no footage and did not try to follow up with any of T.P.’s friends who were present on that day. The Applicant alleges that Detective Riopel went on a “wild goose chase” but “refuse[d] to reduce to paper any negative commentary regarding a sex assault complainant.” [54]

[30] It is the Respondent’s position that the missing disclosure had no bearing on the Applicant’s right to a fair trial since he was acquitted. [55] The Respondent posits that, even if the Court finds that there was a breach of his rights to as fair trial, the Applicant has not shown actual prejudice as required by law. [56] With respect to specific pieces of evidence that the Applicant alleges were either not disclosed, preserved or destroyed, the Respondent’s position is as follows: [57]

i. Video Surveillance from Costco Parking Lot: The video did not point to the area in the parking lot which was relevant to the investigation. The video was deemed irrelevant and not preserved.

ii. Video Surveillance from Pizza Pita: There was an issue with the date stamps on the videos (they did not match the dates that T.P. and Sleiman would have been at the location). Detective Riopel viewed the videos and did not see any people or vehicles of interest. The angle of the footage and the area it covered made Detective Riopel question whether T.P. or Sleiman would have even been in the area. The evidence was not preserved. In his examination, Detective Riopel admitted that his failure to preserve this evidence was an error.

iii. Video Surveillance from St. Laurent Shopping Centre: The video viewed was irrelevant given the location and angle it covered, although Detective Riopel admitted that he should have followed up to interview her friends, among other things.

iv. T.P.’s Cell Phone Text Messages: Detective Riopel sought a download of the text messages and images for the period of October 20-21, 2013. This was provided in disclosure. The Respondent maintains that the police did not delete any messages from T.P.’s phone, and that it was Sleiman who did so. [58]

[31] The Respondent reiterates that the appropriate time for the Applicant to have brought this application was at the beginning of, or before trial. [59] Further, the Respondent argues that the Charter does not entitle an accused to a “perfect” trial, only a fair one. [60]

Analysis and Conclusion on Issue 2

[32] Crown prosecutors are constitutionally required to disclose all relevant information, including evidence that it does not intend to introduce into evidence. [61] The duty to disclose is triggered when there is “a reasonable possibility of the information being useful to the accused in making full answer and defence.” [62] The duty to disclose gives rise to a corresponding duty to preserve. [63] The threshold is low, and an accused will establish an infringement on his or her Charter right when it is reasonably demonstrated that the undisclosed information could have been used in meeting the Crown’s case, advancing a defence, or in making decisions in relation to the defence. [64] However, the Supreme Court in R. v. O’Connor held that: [65]

… a simple breach of the accused’s right to [disclosure] does not, in and of itself, constitute a violation of the Charter such as to entitle a remedy under s. 24(1) … [i]t is the distinction between the “reasonable possibility” of impairment of the right to make full answer and defence and the “probable” impairment of that right which marks the difference between a mere breach of the right to relevant disclosure on one hand, and a constitutionally material non-disclosure on the other .” [Emphasis added]

[33] An accused seeking a Charter remedy for non-disclosure must establish on a balance of probabilities that the non-disclosure prejudiced or had an adverse effect on his or her ability to make full answer and defence. [66] This determination requires an examination of the materiality of the information in question, as immaterial information will not give rise to a Charter violation. [67] The focus is centred around how the non-disclosure affected the accused’s trial. [68]

[34] Even if a Charter violation is found, a stay will not always follow – an appropriate remedy must be chosen. [69] In many cases, where brought to the attention of the court early, a disclosure order and adjournment will generally be appropriate. [70] Where proceedings have advanced, a stay may be necessary. However, it is a last resort only to be taken when all other avenues to protect an accused’s right to full answer and defence are exhausted. [71]

[35] In choosing a remedy, consideration must be given to whether the breach of disclosure “violated the fundamental principles underlying the community’s sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system.” [72] Relevant considerations include Crown intention and conduct, and societal and individual interests in obtaining a determination of guilt or innocence. [73] A stay is only appropriate in the “clearest of cases”, in such circumstances where an accused’s right to full answer and defence cannot be remedied, or “where irreparable prejudice would be caused to the integrity of the justice system if the prosecution continued”. [74]

[36] While broad disclosure is required, the Crown need not disclose irrelevant information, however, should always err on the side of caution. [75]

[37] In this case, there are 3 categories of evidence: (1) evidence that was not preserved by police, (2) evidence that was incomplete / inadequate, and (3) evidence which the Applicant alleges police deleted (or instructed T.P. to delete).

Evidence That was Not Preserved / Lost

[38] The Supreme Court in R. v. La established principles to be applied when a motion to stay based on a loss of evidence is being considered. The principles as they relate to lost or unpreserved evidence were succinctly articulated by Nordheimer J. in R. v. Kish, as follows: [76] (i) the Crown’s duty to disclose gives rise to a duty to preserve relevant evidence; (ii) if relevant evidence has been lost or destroyed, the Crown bears the onus of establishing that the evidence was not lost due to unacceptable negligence, and (iii) in its determination of whether there is a satisfactory explanation by the Crown, the court should consider circumstances surrounding the loss of the evidence, including whether it was perceived to be relevant at the time it was lost and whether the police were reasonably attempting to preserve it. The more relevant the evidence, the more care should be taken to preserve it. If the Crown does not meet its onus, the court will conclude that disclosure obligations were not met and a breach will have been established.

Costco and St. Laurent Shopping Centre Surveillance Videos:

[39] Detective Riopel examined both of these videos and testified as to their contents and their relevance. I am satisfied that he reasonably perceived that neither video contained relevant information due to the camera locations and angles. In the context of disclosure, relevance means there is a “reasonable possibility” that the evidence will be useful to the accused in making full answer and defence. [77]

[40] Even had the videos contained relevant information, I am satisfied on the whole of the evidence that their non-disclosure would not have had an adverse impact on the Applicant’s right to make full answer and defence.

[41] Two pieces of far more probative video evidence were lost by police in Kish, which prompted an application for a stay of proceedings in a second degree murder trial. [78] The investigating officers identified two cameras in the restaurant which captured the altercation. [79] The police viewed the footage, and arranged for it to be seized. [80] The technical unit copied what was thought to be relevant footage onto a USB key, which was later determined to contain the wrong files. [81] Further, a VHS tape with footage was also seized from a separate establishment and subsequently lost.

[42] The Application in Kish was dismissed upon a finding that the loss of the VHS tape was due to human error and not negligence; that the VHS tape was also unlikely to contain any relevant information. [82] The incorrect surveillance footage on the USB key, however, was determined to be lost through unacceptable negligence. [83] The trial judge found that police did not take proper steps to secure it, and that it contained relevant information. However, since it would have only captured a small portion of the relevant area in question, the impact of its loss did not rise to the standard required for a stay of proceedings. [84]

[43] In my opinion, the same can be said of both the Costco and St. Laurent surveillance videos.

Pizza Pita Video

[44] Detective Riopel testified that the footage did not capture anything of value; however, given Pizza Pita’s proximity to the location of the alleged offence, it is possible that it may have contained relevant information for the defence, and would have been subject to disclosure.

[45] As the Applicant observed, Detective Riopel only reviewed 4 of the 5 available dates, and only during fixed times, despite being aware there was an issue with the date and time stamps. He made no attempt to preserve the video, or to engage the High Tech Crime Unit’s expertise. In his testimony, he could not explain why he only looked at those dates. The Respondent concedes that Detective Riopel should have preserved the video, but that his failure to do so was a simple mistake. [85]

[46] According to R. v. La, it is recognized that the investigatory and disclosure processes are subject to human frailty and on occasion, evidence will be lost. [86] Detective Riopel made some effort to access and ascertain the contents of the video, and I am unconvinced that its loss was due to an effort to thwart the disclosure process. Having said that, the videos should have been preserved, and steps to do so were not taken. When he realized that the date and time stamps were incorrect, Detective Riopel should have engaged the High Tech Crime Unit for assistance. The Respondent has not established that the video was not lost through unacceptable negligence, thereby triggering an inquiry as to whether the Applicant’s Charter rights were breached in this instance.

[47] Having said that, the Applicant has failed to persuade me on a balance of probabilities that the loss of this video had an adverse or prejudicial effect on his ability to make full answer and defence. The Applicant was able to very effectively challenge the credibility of T.P. with other video evidence provided in disclosure, notably the Silver City Food Mart video footage. As the Court points out in R. v. G.S. the prejudicial impact of non-disclosure must be assessed in light of other evidence available to the accused. [87]

[48] In arriving at this conclusion, I have considered the reasoning of Spies J. in R. v. Nkemka, where the complainant alleged that she was assaulted by a taxi driver while she was a passenger in his car. [88] The taxi contained in-car recording equipment which the police did not attempt to access or preserve. [89] The tape was eventually automatically overwritten. The accused was acquitted, and Spies J. therefore elected not to rule on the s. 7 non-disclosure application; however, Spies J. added that, had the accused been convicted, she would have ordered a stay based on the fact the police took no steps to secure or preserve the video, which they knew to be relevant and knew would be destroyed. [90] She observed that this was not a case where there would have been alternative evidence to act as a substitute. [91]

[49] As I have already noted, unlike the accused in Nkemka, the Applicant had access to other, more probative evidence in this matter.

T.P.’s Cell Phone and Text Messages:

[50] The Applicant maintains there was an abuse of process revealed by T.P. at the preliminary inquiry in that she testified that she was directed by Detective Riopel to delete a body of text messages between her and Sleiman on her cell phone suggesting that they intended to meet at the Convenience store on the day of the alleged assault. The Applicant was able to obtain copies of these text messages from his own phone, and used them to effectively discredit T.P. in cross-examination at trial.

[51] The Applicant points to T.P.’s testimony at the preliminary inquiry where she states that, “... the detective was sitting with me and he got me to delete Mo’s number out of my phone, like delete everything, so I did it.” [92] I note, however, that in T.P.’s statement to Detective Riopel she offered evidence to the contrary, or evidence that is capable of other interpretation. Suffice to say, the lack of consistency in T.P.’s evidence diminishes its probative value.

[52] By contrast, the Respondent maintains that Sleiman was the one who deleted the text messages from T.P.’s phone and points to T.P.’s cross-examination where she states that while she was in the car with Sleiman, he grabbed her phone and deleted messages sent back and forth between them. [93] I do not fail to note that Detective Ryan Smith offered evidence in the course of this Application to the effect that, in the ambulance and at hospital, T.P. received text messages from Sleiman. However, he recorded no detail about these text messages and described the situation at hand as “chaotic.”

[53] Similarly, I do not fail to note that Detective Paul Batista of the OPS High Tech Crime Unit also gave evidence on the Application that he only retrieved a single text message from Sleiman to T.P. between October 20 and 21, 2013, and that in retrieval of the data, the software operated as expected.

[54] It is noteworthy, however, that in comparing the Radiotactics Report generated for the High Tech Unit, and entered into evidence at trial as Exhibit 10, and the complete body of text messages between T.P. and Sleiman retrieved from Sleiman’s cell phone, entered as Exhibit 14, there appears to be only one text message sent by Sleiman to T.P. on October 20, 2013.

[55] I am unable to reconcile the limited evidence derived from Detective Smith’s Investigative Action and his evidence on the Application, with the evidence in Exhibits 10 and 14 and have little confidence in the evidence of T.P. I am not satisfied that any inference that could be drawn from all of this would amount to more than speculation about what text messages were not preserved, and how they were lost.

[56] The authorities offer direction to address these circumstances. The Court in La examined what conduct arising from the failure to disclosure would look like in an abuse of process situation. The Court held that an abuse of process must include conduct on the part of government authorities that “violates those fundamental principles that underlie the community’s sense of decency and fair play.” [94] This conduct includes, but is not limited to, deliberate destruction of evidence by the police or officers of the Crown in order to avoid disclosure. [95]

[57] Even where conduct amounts to an abuse of process, a stay is only an appropriate remedy in “the rarest cases”. [96] An accused who wishes to make out a Charter breach where the Crown has met its disclosure obligations must establish actual prejudice to the right to make full answer and defence. [97]

[58] The Supreme Court in R. v. Babos pronounced that cases that trigger a stay of proceedings due to abuse of process fall generally into two categories: (1) where state conduct compromises an accused’s right to a fair trial; and (2) where the state’s conduct creates no trial fairness issues, however, risks undermining the integrity of the judicial process. [98] The test to determine whether a stay is warranted is the same in both categories and is as follows: [99]

1. There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 54);

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against the interest that society has in having a final decision on merits (Regan at para. 57).

[59] In a case dealing with destroyed notes related to allegations of sexual assault, the Supreme Court held in R. v. Carosella that an accused must demonstrate that there was actually some harm to the defence, and it is not enough to speculate as to the potential harm. [100]

[60] In this case, the Applicant invites the Court to infer that the police deliberately directed T.P. to delete certain text messages sent to her by Sleiman in order to maintain her narrative, thereby revealing a motive on the part of the OPS to avoid relevant disclosure. The Applicant argues that T.P. would have had no reason to lie at the preliminary inquiry about police telling her to delete these messages – and if we are not to believe her in that regard – points to Detective Smith’s notes that refer to multiple text messages received from Sleiman between October 20 and 21, 2013. The Applicant also points to the chain of custody, noting that the OPS were in sole custody of the phone when the messages would have been deleted. The Applicant posits that this, combined with their failure to order a data dump of T.P.’s phone prior to the October 20-21 timeframe, as well as the other investigative deficiencies noted, was part of an overall scheme to push T.P.’s narrative forward and secure Sleiman’s conviction on the aggravating charges of forcible confinement and threatening.

[61] In my opinion, Detective Riopel presented as a very credible witness and freely admitted that there were faults in his investigation. However, he strongly denied that he ever instructed T.P. to delete anything from her phone. He was unimpeached in this regard. To find the Applicant’s allegations on this matter rise to the level warranting a stay for abuse of process would require the court to draw a number of inferences that are not strongly supported in the evidence. Further, the Applicant’s argument regarding the motive behind police to engage in such destruction of evidence as premised on the “we believe”, or “#metoo” movement is not supported in the evidence before the court, and is largely speculative. The OPS in this matter did not conduct a perfect investigation, but the law does not entitle the Applicant to a perfect investigation. He was entitled to a fair trial, and I find that he received one.

[62] That is not to suggest that the text messages were not extremely material to the defence in this case. They were instrumental in the cross-examination of T.P. as they related to her overall credibility. However, the Applicant had possession of these text messages the entire time and was able to use them to support his ultimate acquittal. In my opinion, there is no greater remedy afforded to the Applicant in this case than an acquittal.

Issue 3: Did these alleged failures require Sleiman to needlessly engage in the Hearing, thereby infringing on his right to a trial without delay in accordance with s. 11(b) of the Charter?

[63] It is the Applicant’s position that he was forced into a Gardiner hearing on account of the police failure to adequately investigate, gather and preserve evidence. [101] For this reason, the Applicant maintains, Sleiman became a “victim of an incomplete, biased investigation which thwarted him from resolving matters within a reasonable time.” [102]

[64] The Applicant attributes fault in this matter to what he contends are serious systemic issues related to the investigation of sexual assault complaints. The Applicant’s position is that ss. 7 and 11(b) of the Charter operate in unison due to the cumulative effects of the allegedly negligent police investigative tactics. [103] In both written and oral submissions, the Applicant lays fault with the OPS, going so far as to make abuse of process arguments premised on the alleged purposeful destruction of evidence.

[65] The Respondent submits that the Applicant’s failure to move for a stay of proceedings based on a s. 11(b) violation prior to, or at the immediate end of the Hearing should constitute an express waiver of a Charter claim. [104]

Analysis and Conclusion on Issue 3

[66] The Applicant in this matter has characterized the time which has elapsed from the laying of charges to trial as delay stemming from negligent police investigation, without acknowledging that it is not for police to decide whether or not a person charged will face prosecution. As previously discussed, this decision falls squarely within the discretion of the Crown. It would appear that the reason why the s. 11(b) application for a stay is described by the Applicant to be sui generis, is because it is settled in law that, save for an abuse of process or malicious prosecution allegation directed at the Crown, the decision taken by the Attorney General to prosecute an individual is accorded the highest deference. As the Supreme Court remarked in Krieger v. Law Society of Alberta: [105]

The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave political conflict.

[67] In reference to the nature of prosecutorial discretion, the Supreme Court considered the dicta of La Forest J. in R. v. Beare, [1988] 2 SC.R. 387 as follows:

Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when they lay charges, to arrest and conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on. [106]

[68] Of course, prosecutorial discretion does not encroach upon the duty to make disclosure of relevant information. [107] However in this matter, there is no question that the Crown disclosed all relevant information in his possession to the Applicant. The Crown was not made aware of any missing evidence until the Hearing commenced, when the Applicant brought to light by way of cross-examination of T.P., the outstanding text messages that did not appear in the materials provided by police. I am satisfied that in this matter, the Crown discharged his disclosure duties to the Applicant.

[69] Accordingly, there is no ground upon which a s. 11(b) argument premised solely on the very fact that a prosecution occurred can stand. Flawed as it may have been, the OPS conducted its investigation and charged Sleiman. It was completely within the discretion of the Crown, after reviewing the charges and the fruits of the investigation, to pursue the matter further to trial.

[70] The Applicant further argues that the flawed investigation, destruction or failure to preserve evidence by the OPS, and therefore, any delay in this matter from the period Sleiman was charged until trial infringed on his s. 11(b) rights such that responsibility for that delay must be borne by the state. [108] In his submissions, the Applicant asserts that it is the accumulation of these failures that precipitated what he describes as an “otherwise unnecessary Gardiner hearing”. [109]

[71] At the court’s request, the Applicant has provided the court with a breakdown of the time this matter took to hear from the date of the charge until an acquittal was entered, along with a detailed chronological chart of the process, as follows:

Breakdown at a Glance

Time of charge to first date of trial 849 days

Time of charge to date of acquittal: 938 days

Time of charge to preliminary inquiry 176 days

Time between first scheduled trial to second scheduled trial 373 days

Time from when Mr. Lewandowski gets on record to when the second trial date is set: 166 days

JPT’s missed by the Crown 3 - June 19, 2014 - September 3, 2014 - November 19, 2014

Available plea court dates from time of charge to time of acquittal more than 600

[72] Without squarely suggesting that this matter is subject to a Jordan analysis, the Applicant seeks to import into his arguments the reasoning at para. 41 in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631:

The Morin framework does not address this culture of complacency. Delay is condemned or rationalized at the back end. As a result, participants in the justice system – police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament – are not encouraged to take preventative measures to address inefficient practices and resourcing problems. Some courts, with the cooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay, thereby showing that it is possible to do better. Some legislative changes and government initiatives have also been taken, however, much remains to be done.

[73] The Applicant contends that, because of the shift in culture required post-Jordan, any analysis under Askov / Morin [110] for this matter would be fundamentally altered because of the alleged state misconduct. It is clear that the Applicant wishes the court to undertake a retrospective analysis of this issue, infused with the culture shift articulated in Jordan, in order to determine whether a s. 11(b) infringement occurred in this case. However, with the exception of arguments proffered by the Applicant that address the investigative issues that brought Sleiman before the courts, which I have already dealt with, the Applicant has not provided the court with any other argument regarding delay during the period required in a traditional s. 11(b) application, that is, the period from the time Sleiman was charged until the end of trial. [111] In fact, the only reference to such delay the Applicant makes is that “[q]uibbling over whether a change in counsel would have been inevitable due to Justice Konyer’s appointment is immaterial; debating whether Mr. Sleiman should have opted to have a preliminary inquiry is to misunderstand the problem that has manifest.” [112] It is clear that the Applicant only wishes to draw the Court’s attention to the investigative deficiencies as a basis for delay. It is my understanding, following the September 24, 2018 hearing, that the Applicant reserves his right to put forth a subsequent s. 11(b) Charter application with respect to the sentencing portion of these proceedings.

[74] Like the Applicant, the Respondent has not provided the court with any substantive legal argument on any of the traditional considerations in a s. 11(b) application. It is the Respondent’s position that this is a pre-Jordan case, and that the Askov and Morin principles should apply. However, the Crown acknowledges an understanding that the Applicant does not wish the court to take a traditional approach, particularly in light of the Applicant’s failure to break out delay into component parts (“Crown Delay”, “Defence Delay”, “Intake”, etc.) as required by law at that time. [113]

[75] I agree that this is a pre-Jordan case. I have addressed Sleiman’s s. 11(b) Charter rights in relation to the contention that the negligent police investigation caused an unnecessary Hearing which infringed Sleiman’s Charter rights. I decline to undertake a s. 11(b) Charter analysis using the traditional approach without the appropriate analysis from counsel. Neither Applicant nor Respondent have provided the Court with any argument or explanation for delay caused by the institution, Crown, Defence, or otherwise.

[76] This Application is accordingly dismissed.

Madam Justice Toscano Roccamo

Released: September 28, 2018

[1] R. v. Sleiman, Defence Factum Re: Charter ss. 7 and 11(b) Motion at para 13. [Defence Factum]

[2] R. v. Sleiman, Notice of Application, page 2 at para 3. [NOA]

[3] Defence Factum, supra note 1 at para 166.

[4] Ibid at para 167.

[5] R. v. Sleiman, 2016 ONSC 3125 at paras 1-2.

[6] Ibid at para 3

[7] Ibid at para 3.

[8] Ibid at para 4.

[9] Ibid at paras 12-13.

[10] Ibid at para 5.

[11] Ibid at para 7.

[12] Ibid at para 9.

[13] Ibid at para 31.

[14] Ibid at para 33.

[15] R. v. Sleiman, Exhibit 14.

[16] Defence Factum, supra note 1 at paras 2-3.

[17] Ibid at para 5.

[18] Ibid at para 14.

[19] R. v. Sleiman, Respondent’s Argument #2 at para 12. [Respondent’s Argument 2]

[20] Ibid at para 18.

[21] Ibid at para 20.

[22] Ibid at paras 23-24.

[23] Ibid at para 126.

[24] Defence Factum, supra note 1 at paras 22-23.

[25] Ibid at para 76.

[26] Ibid at para 77.

[27] Ibid at paras 94-97.

[28] Ibid at paras 109-110. According to LEGISinfo, Parliament’s legislative tracking website, Bill C-75 completed its second reading and referral to the Committee in the House of Commons on June 11, 2018; and Bill C-51 completed its second reading in the Senate on May 10, 2018. https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9002286

[29] Defence Factum, supra note 1 at para 119.

[30] Samuel Osborne, “Liam Allen: Met Police Apologize to 22-year-old man falsely accused of rape after failing to disclose crucial text messages, Independent (January 30, 2018).

[31] Ibid

[32] Ibid

[33] Defence Factum, supra note 1 at para 125.

[34] Respondent’s Argument 2, supra note 19 at para 15.

[35] R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177 at para 108. [Spackman]

[36] Ibid at para 108; R. v. Barnes, 2009 ONCA 432, at para 1.

[37] Ibid at para 109; R. v. Darwish, 2010 ONCA 124, at para 31; R. v. Grant, 2007 MBQB 154, 217 Man. R. (2d) 208 at para 20.

[38] Tremblay v. Ottawa (City) Police Services Board, 2018 ONCA 497 at para 60. [Tremblay]

[39] Ibid at para 65.

[40] Ibid at para 75; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para 50. [Hill]

[41] Ibid at para 50.

[42] Ibid at para 50.

[43] Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 at para 46. [Krieger]

[44] Ibid at para 46.

[45] Ibid at para 47.

[46] Ibid at para 49.

[47] R. v. D.N., 2004 NLCA 44, 188 C.C.C. (3d) 89 at para 12.

[48] Ibid at para 12.

[49] Spackman, supra note 35 at para 108.

[50] Ibid at para 108.

[51] Defence Factum, supra note 1 at para 27.

[52] R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 at para 140. [Seaboyer]

[53] Defence Factum, supra note 1 at para 54.

[54] Defence Factum, supra note 1 at para 87.

[55] Respondent’s Argument 2, supra note 19 at para 24.

[56] Ibid at para 31.

[57] Ibid at p. 8-10.

[58] Ibid at para 113.

[59] Ibid at p. 4.

[60] Ibid at p. 30.

[61] R. v. Stinchcombe, [1991] 3 S.C.R. 326 at para 29. [Stinchcombe]

[62] R. v. Dixon, [1998] 1 S.C.R. 244 at para 21. [Dixon]

[63] R. v. Egger, [1993] 2 S.C.R. 451 at p. 472. [Egger]

[64] Dixon, supra note 62 at para 22.

[65] R. v. O’Connor, [1995] 4 SC.R. 411 at para 74. [O’Connor]

[66] Ibid at para 74.

[67] Ibid at para 74.

[68] Ibid at para 74.

[69] Ibid at para 74.

[70] Ibid at para 76.

[71] Ibid at para 77.

[72] Ibid at para 78.

[73] Ibid at para 79-81.

[74] Ibid at para 82.

[75] Dixon, supra note 62 at para 27.

[76] R. v. Kish, 2011 ONSC 1243, at para 15. [Kish]

[77] R. v. Nkemka (2013), 287 C.R.R. (2d) 197 at para 42. [Nkemka]

[78] Kish, supra note 72 at para 1.

[79] Ibid at para 6.

[80] Ibid at para 9.

[81] Ibid at para 12.

[82] Ibid at paras 18, 19.

[83] Ibid at para 24.

[84] Ibid at para 26.

[85] Respondent’s Argument 2, supra note 19 at para 48

[86] R. v. La, [1997] 2 S.C.R. 680 at para 20. [La]

[87] R. v. G.S. (2010), 2010 ONCA 296, 254 C.C.C. (3d) 153 (Ont. C.A.) at para 47. [G.S.]

[88] Nkemka, supra note 78 at para 6.

[89] Ibid at para 21.

[90] Ibid at para 48.

[91] Ibid at para 48.

[92] Defence Factum, supra note 1 at para 35.

[93] Respondent’s Argument 2, supra note 19, tab 2, page 86.

[94] La, supra note 86 at para 22.

[95] Ibid at para 22.

[96] Ibid at para 23.

[97] Ibid at para 25.

[98] R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para 31. [Babos]

[99] Ibid at para 32.

[100] R. v. Carosella, [1997] 1 S.C.R. 80 at para 75.

[101] Applicant’s Factum, supra note 1 at para 13.

[102] NOA, supra note 2 at para 48.

[103] Applicant’s Factum, supra note 1 at para 153.

[104] Respondent’s Argument 2, supra note 19 at para 126.

[105] Krieger, supra note 41 at para 32.

[106] Ibid at para 48.

[107] Ibid at para 54.

[108] Applicant’s Factum, supra note 1 at paras 155-158.

[109] Ibid at para 131.

[110] R. v. Askov, [1990] 2 S.C.R. 1199 [Askov]; R. v. Morin, [1992] 1 S.C.R. 771. [Morin]

[111] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 at para 163; R. v. Morin, [1992] 1 S.C.R. at para 32.

[112] Applicant’s Factum, supra note 1 at para 154.

[113] Respondent’s Argument 2, supra note 19 at para 127.