COURT FILE NO.: CR-21-10000003-0000 DATE: 20230717 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Monica Gharabaway for the Crown

• and -

TAL AMDURSKI Nate Jackson for Tal Amdurski

HEARD: June 16, 2023

RULING ON LOST EVIDENCE APPLICATION

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

CORRICK J.

Introduction

[1] Following a trial before me without a jury, on March 3, 2023, I found the Applicant, Mr. Amdurski, guilty of the following eight offences:

▪ Trafficking in persons, contrary to s. 279.01(1) ▪ Material benefit, contrary to s. 279.02(1) ▪ Material benefit from sexual services of a person under 18 years of age, contrary to s. 286.2(2) ▪ Procuring, contrary to s. 286.3(2) ▪ Sexual assault, contrary to s. 271 ▪ Sexual interference, contrary to s. 151 ▪ Obtain for consideration the sexual services of a person under 18 years of age, contrary to s. 286.1(2) ▪ Communicate for the purpose of obtaining the sexual services of a person under 18 years of age, contrary to s. 286.1(2)

[2] The offences occurred between June 1 and 13, 2018, and involve a 13-year-old complainant.

[3] The Applicant applies for a stay of proceedings, pursuant to s. 24(1) of the Charter, alleging that his rights protected by s. 7 of the Charter were violated when the police lost relevant evidence, denying him the ability to make full answer and defence.

Facts Giving Rise to the Lost Evidence

[4] In the early morning hours of June 13, 2018, the complainant’s mother discovered the complainant was missing from her bedroom. Her mother found an old iPhone 4 in the complainant’s bedroom and discovered text messages between the complainant and the Applicant indicating that the complainant had been engaging in sex work. She photographed the text messages using her own cellphone.

[5] Two days later, the complainant and her mother met with Officers Correa and Pischedda from the Human Trafficking Enforcement Team. The complainant was not willing to provide a statement to the officers at that time but consented to having the contents of her cellphone downloaded. At the conclusion of the meeting, the complainant’s mother gave Officer Pischedda the iPhone 4 that contained the messages she had photographed as well as an iPhone 6, which the complainant had been using.

[6] Later the same day, Officer Pischedda turned the cellphones over to Officer Correa, who was going to download the contents. Officer Correa put the cellphones in the property room, a place intended to store items temporarily. His plan was to download the contents of the cellphones and then return them to the complainant. This was the usual practice of the Human Trafficking Enforcement Team to avoid depriving complainants of their cellphones for lengthy periods of time.

[7] Officer Correa downloaded the contents of the two cellphones to a standalone computer on June 25, 2018, using proprietary software known as “Mobilize.” Once he was satisfied that the contents had downloaded, he transferred them to a USB drive. He did not label the USB drive or put it in a property bag with a tag. He gave the USB drive to Officer Pischedda, and then deleted the contents from the standalone computer to free up its limited memory space.

[8] Officer Pischedda had no recollection of receiving this USB drive from Officer Correa. However, he testified that Officer Correa often downloaded the contents of cellphones for him and gave him USB drives. The practice of the Human Trafficking Enforcement Team was to have the officer in charge of the case maintain the downloaded contents of complainants’ cellphones. The USB drives were not bagged and tagged as other exhibits would be. Officer Pischedda, as the officer in charge of this case, testified that he would have put the USB drive in his desk drawer.

[9] On September 4, 2018, Officer Pischedda returned the cellphones to the complainant’s mother, at her request. The complainant’s mother told the officer that she intended to reset the phones to their factory settings.

[10] At some point, the police realized that the USB drive with the contents of the complainant’s cellphones had been misplaced. It is unclear when that happened, but it may have been in November 2020, when Officer Pischedda was transferred to 51 Division and a new officer in charge had been appointed. By that time, the Human Trafficking Enforcement Team had moved offices and Officer Pischedda was no longer part of the team. Despite an extensive search, the USB drive was not located.

[11] At trial, the photographs of the text messages taken by the complainant’s mother were filed as an exhibit. It is not disputed that the photographs are an incomplete record of the text messages between the complainant and the Applicant.

Other Relevant Facts

[12] The complainant and the Applicant communicated by way of text messages and over an application known as “Whisper.” The Whisper communications were not photographed by the complainant’s mother. There was no record of them before the court at the trial.

[13] The missing downloads were raised by defence counsel, Mr. Jackson, when he noted them as outstanding disclosure in a Form 17 that he filed on December 30, 2020, in advance of a judicial pre-trial in the Superior Court of Justice. The missing disclosure was discussed at the pre-trial on January 4, 2021. Between January and December 2021, Mr. Jackson enquired multiple times about the status of the missing downloads. It was not until December 15, 2021 that he was formally informed by the Crown that the downloads had been lost.

[14] The Applicant’s cellphone was seized by police on August 18, 2018. It has been in police custody since that time. On May 18, 2022, Ms. Gharabaway indicated in an email to Mr. Jackson that she would consent to an application to have the Applicant’s cellphone released to him to mitigate any impact the lost downloads had on the Applicant’s right to make full answer and defence. Ms. Gharabaway’s consent was not contingent on the Applicant disclosing the contents of his cellphone to the Crown. Ms. Gharabaway’s suggestion to Mr. Jackson came after the complainant’s testimony at the trial had finished. Mr. Jackson did not make the application.

[15] The Applicant testified at the outset of this hearing that his cellphone does not contain any of the lost evidence. He testified that on June 30, 2018, he emailed Whisper Support asking that his account be deleted. On August 22, 2018, he received a reply email advising him that his account and all posted content in it would be deleted. Both of those emails have been marked as exhibits on this application. He has not asked Whisper to reinstate his account. The communications between him and the complainant over Whisper are therefore not available to him on his cellphone.

[16] The Applicant further testified that he used an application called SUDO to send the complainant text messages. SUDO is an application that provides the user with five different telephone numbers. The Applicant used a SUDO number to communicate with the complainant. He deleted that number in late June 2018. Once the number was deleted, the records related to that number were also deleted, according to the Applicant. He looked for a contact person at SUDO to inquire about obtaining the deleted records but was unable to find anyone to contact. His cellphone therefore has no record of any of his text conversations with the complainant.

The Legal Framework

[17] The analysis of an application to stay proceedings for a breach of s. 7 of the Charter due to lost evidence proceeds in two stages. At the first stage, the court must determine whether there has been a breach of s. 7. If there has been, the second stage requires the court to determine what remedy, if any, is owed to the Applicant.

[18] The basic principles governing the court’s analysis were set out by the Supreme Court of Canada in R. v. La, [1997] 2 SCR 680. They were summarized as follows by the Nova Scotia Court of Appeal in R. v. F.C.B., 2000 NSCA 35, at para. 10:

(1) The Crown has an obligation to disclose all relevant information in its possession. (2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence. (3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence. (4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. (5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it. (6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights. (7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation. (8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor. (9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy. (10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

[19] An accused whose s. 7 rights have been breached as a result of lost evidence is not automatically entitled to a stay of proceedings. An “appropriate and just” remedy provided for in s. 24(1) of the Charter is determined by the prejudice caused to the accused by the breach: La, at para. 25; R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 42; R. v. Atwima, 2022 ONCA 268, at para. 101.

[20] A stay of proceedings is a remedy of last resort and should only be granted in the clearest of cases: R. v. Carosella, [1997] 1 S.C.R. 80, at para. 52; Bero, at para. 42. The clearest of cases are those where the prejudice to the accused’s right to make full answer and defence cannot be remedied through other means, or where the integrity of the justice system would be harmed if the prosecution were allowed to continue: Bero, at para. 42; Atwima, at para. 103.

[21] The prejudice caused by the lost evidence must be considered in the context of the case as a whole, including any other evidence that was available to the defence to bridge the gap left by the lost evidence. There is actual prejudice when the lost evidence prevents the accused from putting forward a defence, not when it simply makes it more difficult: R. v. Bradford (2001), 151 C.C.C. (3d) 363 (Ont. C.A.), at para. 8.

[22] The integrity of the justice system will be put at risk when there has been a deliberate attempt to compromise an accused’s ability to make full answer and defence, to frustrate the ability of the court to reach a proper verdict, or the trial process is otherwise undermined by the state conduct: Bero, at para. 44.

Positions of the Parties

[23] The Applicant argues that the police had a duty to preserve and disclose the downloaded contents of the complainant’s cellphones. The cellphone downloads were lost due to the unacceptable negligence of the police. They were relevant evidence essential to his ability to make full answer and defence. This was a clear breach of s. 7 of the Charter.

[24] The only way to remedy this breach is a stay of proceedings, according to the Applicant. In this case, the police demonstrated a wilful disregard for their disclosure obligations. The cellphones were seized, and their contents downloaded in 2018, and the police did nothing to prepare them for disclosure to the defence. They were not disclosed prior to the preliminary hearing, and their loss was not confirmed to Crown or defence counsel until December 2021. To permit the prosecution to continue would be to condone this police misconduct, in the Applicant’s submission.

[25] Crown counsel focused her submissions on whether the Applicant was owed any remedy for the loss of the evidence. In her submission, the Applicant suffered no prejudice as a result of the lost evidence because other evidence was available to him to present his defence. He was therefore owed no remedy, and certainly not a stay of proceedings, an extraordinary remedy that is granted only in the clearest of cases.

Analysis

Has s. 7 Been Breached?

[26] Unquestionably, the downloaded contents of the complainant’s cellphone were relevant evidence in the possession of the police. The police were required to disclose them and were thus required to preserve them. They failed to do so.

[27] It is not contested that Officers Pischedda and Correa knew that the cellphones contained highly relevant evidence when their contents were downloaded. Officer Pischedda also knew that the photographs provided by the complainant’s mother were not a complete record of the text messages between the Applicant and the complainant or a complete record of the contents of the cellphones.

[28] The USB drive with the downloaded contents was important evidence. It contained the only copy of the evidence. The fact that it was not labelled, bagged or tagged, or kept for safekeeping in a secure location is unacceptable negligence. That there was no protocol or procedure in place for the safekeeping of USB drives containing this type of evidence other than entrusting the officers-in-charge to keep them in their desk drawers is equally unacceptable negligence.

[29] The loss of this evidence was not intentional. It was due to human error or inadvertence. Accidents do happen but can be prevented by proper procedures designed to prevent them. No satisfactory explanation has been advanced to explain this loss. I therefore find that the Applicant’s s. 7 rights were breached.

The Remedy

[30] The Applicant argues that the proceedings against him should be stayed for two reasons. The first is that he has been denied the ability to make full answer and defence. The second is that permitting the proceedings to continue would cause irreparable harm to the administration of justice given the police officers’ blatant disregard for their disclosure obligations and the Applicant’s s. 7 rights.

[31] Dealing first with the second argument, I am of the view that this is not one of the extremely rare cases where the court should intervene to prevent an abuse of process that could bring the administration of justice into disrepute. Court intervention is necessary “where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed:” R. v. Power, [1994] 1 S.C.R. 601, at para. 12. As I have already indicated, the cellphone downloads were lost due to negligence and human error or inadvertence. There is no evidence of intentional wrongdoing or of an attempt to thwart the Applicant’s ability to make full answer and defence on the part of the officers.

[32] The conduct of the officers in this case does not rise to the level of offending society’s notions of fair play or decency. I find that the Applicant has not met the high standard of establishing that this is the clearest of cases calling for a stay on the second basis.

[33] I turn now to the submission that the lost downloads deprived the Applicant of the ability to make full answer and defence. The Applicant argues that the downloads were probative of the true nature of his relationship with the complainant and the reasonableness of the Applicant’s acceptance of the complainant’s misrepresented age of 18. The downloads would have corroborated the Applicant’s evidence and helped to raise a reasonable doubt.

[34] Whether a remedy is granted turns on the prejudice caused by the breach to the Applicant’s right to make full answer and defence. To determine the degree of prejudice consideration must be had of the other evidence available to the defence.

[35] One of the main issues in the trial was whether the Applicant took all reasonable steps to ascertain the complainant’s age. I found that he had not. He had accepted her word that she was 18 years old without making any further inquiries. He argues that the steps he took were reasonable given the surrounding circumstances, which included photographs that the complainant had sent him on Whisper.

[36] At trial, the Applicant testified that the complainant sent him three photographs from which he concluded that there was no reason to question her stated age of 18. The first was a photo of her, clothed. The second was of her face and upper half of her torso, naked. The third was of her naked buttocks. The complainant agreed that she had sent the photos.

[37] The complainant agreed that she had misrepresented her age to the Applicant.

[38] On the Applicant’s evidence at trial, only one of the photos showed the complainant’s face. There was other evidence available to the Applicant at the trial about the complainant’s appearance. There is clear video surveillance of the complainant at the Best Western Hotel taken the day after she and the Applicant had met. The complainant and her mother testified about her appearance at the time. The Applicant testified that two friends, Arif and Surita, were with him when he picked the complainant up in his truck on June 7, 2018, and neither of them thought that the complainant was younger than 18 years old. Neither of those friends testified.

[39] The lost downloads would have also shown the true nature of the relationship between the Applicant and the complainant, according to the Applicant. The nature of the relationship was not in dispute at the trial. The Applicant and complainant agreed that the complainant wanted the Applicant to set up meetings with clients who would pay her for her sexual services. The Applicant did so and received a “booking” fee from the clients. The Applicant arranged the time and place of the meeting and set the fee. He arranged transportation for the complainant to and from the meetings. None of this was contested by the complainant. The Applicant himself described the relationship as a business relationship where he helped her navigate her way through the sex industry. The entire relationship between the complainant and the Applicant lasted only eight days.

[40] It is unclear to me how any of the lost text messages would have assisted the Applicant in raising a doubt, unless the missing text messages directly contradicted the text messages that were before the court.

[41] The text messages that were before the court provided ample support for the conclusion that the Applicant had a persuasive effect on the complainant to provide sexual services for money.

[42] The Applicant submits that the prejudice he suffered as a result of the lost evidence was most acute in relation to a specific message that he alleges is missing in which he tells the complainant that she did not have to see the second client he had arranged for her if she did not want to. The Applicant submits that this missing text message would have corroborated his evidence and helped to raise a reasonable doubt. I did not accept the Applicant’s evidence that he sent such a message, and it was one of the factors that affected my assessment of his credibility.

[43] Other evidence was available to the Applicant to establish that he sent this message to the complainant. The Applicant testified that he dictated this text message to Arif while he was driving but Arif failed to include that information in the messages he sent to the complainant. Both Surita and Arif were in the car when the Applicant dictated that message and could testify about what the Applicant dictated to Arif. As I already indicated, neither of them testified.

[44] This was not the only instance of the Applicant trying to persuade the complainant to provide sexual services for money. He also persuaded her to meet him and his friend at a hotel in North York on June 12, 2018. The Applicant did not testify that any text messages were missing from this message thread.

[45] The Applicant did not accept Crown counsel’s suggestion to make an application to have his own cellphone released to him to attempt to recover the lost evidence. Crown counsel was prepared to consent to such an application with no obligation on the Applicant to disclose the cellphone’s contents to the Crown. The Applicant testified on this application that he believed that none of his communications with the complainant remained on his cellphone. However, the Applicant’s cellphone record, marked as Exhibit 25 on the trial, shows that the Applicant sent the complainant a text message on June 6, 2018, at 13:53:50 from his cellphone number, not a SUDO number. This text message may have assisted the Applicant.

[46] The loss of the evidence did not prevent the Applicant from cross-examining the complainant about other communications she received from him or from calling other evidence to establish that he communicated information to her that was contrary to the information contained in the text messages that were before the court.

[47] The lost evidence did not prevent the Applicant from putting forward a defence.

[48] For all of the foregoing reasons, I find that this is not one of the clearest of cases that requires a stay of proceedings based on a breach of s. 7 of the Charter. The application is dismissed.

Corrick J. Released: July 17, 2023

COURT FILE NO.: CR-21-10000003-0000 DATE: 20230717 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – TAL AMDURSKI RULING ON LOST EVIDENCE APPLICATION Corrick J. Released: July 17, 2023