SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: CR-20-40000282-0000

DATE: 20231127

RE: R. v. Zhuxi Shen

BEFORE: Justice N. J. Spies

COUNSEL: Daniel DeSantis, for the Crown/Respondent

Peter Thorning, for the Defendant/Applicant, Zhuxi Xi Shen

HEARD: October 4, 11 and 12, 2023

RULING on DEFENCE Application for a MISTRIAL

SPIES J.

Overview

[1] In September 2019, Zhuxi Xi Shen was charged with administering a noxious substance and sexual assault in relation to a single complainant. The former charge was withdrawn on December 13, 2019. In June 2022, Mr. Shen was tried by judge and jury on the single count of sexual assault. This trial resulted in a hung jury on June 23, 2022.

[2] Mr. Shen was then tried before me, without a jury. He pleaded not guilty to the charge of sexual assault and was represented by Taro Inoue. On May 23, 2023, I convicted Mr. Shen: see R. v. Shen, 2023 ONSC 2943 (“Reasons for Judgment” or “Reasons”). I found that Mr. Shen had sexually assaulted the complainant twice; first, he engaged in sexual intercourse while she was incapacitated and second, after she awoke, he forced her to have sexual intercourse without her consent.

[3] At the trial before me, the Crown led evidence of two videos extracted from a cell phone alleged to belong to Mr. Shen, that I referred to in my Reasons for Judgment as “the iPhone.” There was no objection to the introduction of the video evidence and other evidence extracted from the iPhone pursuant to a search warrant (the “Warrant”) by defence trial counsel. I found that the iPhone belonged to Mr. Shen and my Reasons for Judgement refer to the two videos extracted from the iPhone. The video that is now in issue is five minutes and 27 seconds long and is referred to as the “Hotel Video” in my Reasons. For virtually all this video, all that can be seen is a black screen, and there is audio that I found to be words and sounds between Mr. Shen and the complainant. In the final ten seconds, a naked woman who appears to be sleeping can be seen lying on the bed, whom I found to be the complainant.

[4] Before his sentencing hearing, Mr. Shen discharged his trial counsel and retained Brauti Thorning LLP and in particular Peter Thorning. After Mr. Thorning received and reviewed Crown disclosure from Mr. Inoue, he became aware of the fact that a copy of the Information to Obtain the Warrant (“ITO”) to search electronic devices - five cell phones and single laptop - had never been disclosed to (or requested by) the defence. Mr. Thorning asked Crown counsel, Mr. Daniel DeSantis, for a copy of the ITO and other disclosure relevant to the Warrant and the extraction of data from the electronic devices. I granted an adjournment of Mr. Shen’s sentencing hearing to give time for this disclosure to be obtained and provided to defence counsel.

[5] Initially, Mr. DeSantis provided Mr. Thorning with a copy of the ITO retained by the Officer-in-Charge. He advised that the copy was expected to be a duplicate of what was submitted to the justice for authorization. Mr. Thorning then advised Mr. DeSantis that the defence was considering bringing an application to reopen Mr. Shen’s conviction and/or ask this court to declare a mistrial based on a potential legal issue surrounding the seizure and search of Mr. Shen’s cell phones and in particular breach of s. 8 of the Charter. I granted an adjournment of the sentencing hearing at the defence’s request so that the original ITO could be unsealed and a copy of it, as well as the remaining disclosure, could be disclosed. There is no dispute that the original ITO is identical to the copy originally provided to Mr. Thorning.

[6] Mr. Shen has now brought this application for an order pursuant to the common law, or ss. 24(1) or 24(2) of the Charter of Rights and Freedoms (“Charter”) for alleged violations of s. 7 and s. 8 of the Charter.

Positions of Counsel

[7] The applicant is not challenging the issuance of the Warrant. The focus is on the manner of search of the iPhone. The applicant asserts that it was an unreasonable search resulting in a s. 8 breach of Mr. Shen’s Charter rights and that the Hotel Video should not have been admitted as evidence at trial. The applicant submits that a plain reading of the Warrant on its face did not authorize the extraction of videos from Mr. Shen’s electronic devices; it only authorized the extraction of photographs. It is also argued that the ITO does not include a request or permission to extract or seize any video from Mr. Shen’s electronic devices. This position is disputed by the Crown.

[8] At trial, I heard the evidence of Detective Constable (“DC”) Ken Lam who was tasked with reviewing the information extracted from the iPhone by a Cellebrite Reader extraction program. I also heard from DC Todd Morden who explained how he used the Cellebrite extraction program to extract content from the iPhone. He was also qualified to give expert opinion evidence in the forensic analysis of computer devices, cellular phones, and digital media and gave specific evidence about the Hotel Video and other items extracted from the iPhone. For this defence Charter application, counsel agreed that the trial evidence of these officers applied to this hearing. In addition, at the request of the defence, Mr. DeSantis called both officers again on this application.

[9] The initial application record alleged only a s. 8 Charter breach and the remedies that might flow if a breach were found. An amended application record was later filed, asserting that the inadvertent late disclosure of the ITO by the Crown violated Mr. Shen’s right to have a fair trial as guaranteed by s. 7 of the Charter by denying him the opportunity to seek exclusion of the Hotel Video evidence that is alleged to have been vital to the prosecution's case and to the decision of this court to convict Mr. Shen.

[10] In the alternative, the defence argues that the evidence on the voir dire of the two officers who were involved in the extraction of the video evidence from the iPhone establishes a prima facie case that s. 8 of the Charter was violated and that this court should not consider the merits of a s. 8 application because to do so could reasonably be viewed as an after-the-fact justification for reliance on the Hotel Video in convicting Mr. Shen. In the further alternative, if the s. 8 Charter issue is to be decided on the merits, it is argued that if the Hotel Video should be excluded from the trial evidence, this court should not reconsider the decision to convict Mr. Shen without reliance on this evidence as, again, to do so could reasonably be viewed as an after-the-fact justification for convicting Mr. Shen. For these reasons, it is submitted that a mistrial is the only appropriate remedy that can ameliorate the prejudice to Mr. Shen.

[11] It is the position of the Crown that Mr. Shen’s s. 7 Charter rights were not violated as prior defence counsel did not exercise due diligence in requesting that the ITO be unsealed so that it could be disclosed. Therefore, it is submitted that any prejudice that may arise from non-disclosure of the ITO before the defence request is attributable to the applicant. Mr. DeSantis also takes the position that this court can permit a reopening of the trial for the purpose of Mr. Shen bringing a s.8 Charter application. The Crown is not opposed to reopening the trial so that this court can hear this application.

[12] It is Mr. DeSantis’ position that there was no s. 8 Charter breach as the Warrant’s terms and conditions provided for a search of the iPhone's data in the manner conducted. In the alternative, it is argued that s. 24(2) of the Charter necessitates the inclusion of such evidence. Finally, if this court concludes that the Hotel Video evidence ought to have been excluded from the evidence at trial, then Mr. DeSantis agrees with Mr. Thorning that this court should not reconsider the decision to convict Mr. Shen without considering the Hotel Video, but rather direct a mistrial.

[13] At the commencement of closing submissions on this application a few days after I heard the additional evidence of officers Lam and Morden, Mr. Thorning submitted that based on DC Lam’s evidence, he had reviewed a large number of emails that were subject to solicitor-client privilege, including emails between Mr. Shen and a civil litigation lawyer and between Mr. Shen and a criminal lawyer that were related to this case and others. There was no evidence that DC Lam in fact reviewed privileged emails and so Mr. Thorning wanted to file those emails with this court under seal, so that I could be satisfied of this assertion of privilege. Mr. Thorning also asked to reopen the evidence and re-call DC Lam so he could ask him questions about this. Mr. DeSantis objected to this and, after hearing brief submissions, I advised Mr. Thorning that I was not prepared to look at any solicitor-client privileged communications and that I would not hear further from the officer. In my view, as Mr. DeSantis conceded, there is a great deal of sensitive personal information on a person’s cell phone, including the iPhone and that the search of an iPhone like this would be highly intrusive. Whether Mr. Shen’s iPhone in fact included privileged information would not impact my analysis of the issues on this application. Furthermore, Mr. Thorning had already had an opportunity to cross-examine DC Lam and as Mr. DeSantis argued, there would have been no way of DC Lam knowing in advance of his search of the iPhone that it contained solicitor-client privileged information. Accordingly, closing submissions proceeded on the evidence that I had already heard.

[14] The issues that flow from the application now before me are complex and I agree with Mr. Thorning that the situation that has arisen appears to be unique.

Issues

[15] Considering these positions of counsel, the issues to be determined are as follows:

(a) Has Mr. Shen proven that his s. 7 Charter rights were breached by the fact that the Crown did not disclose the ITO in advance of his trial?

(b) If so, should this court direct a mistrial as a remedy or reopen Mr. Shen’s conviction and decide the s. 8 Charter application on its merits?

(c) If a decision is made to decide the s. 8 Charter application on its merits, should the Hotel Video be excluded from the trial evidence? If so, should this court conduct a s. 24(2) Charter analysis to consider whether to permit the inclusion of the evidence in any event?

(d) If this court decides that the Hotel Video should be excluded from the trial evidence, should this court direct a mistrial as a remedy or is there another appropriate remedy?

Has Mr. Shen proven that his s. 7 Charter rights were breached by the fact that the Crown did not disclose the ITO in advance of his trial?

Evidence Related to the Disclosure Issue

[16] The Hotel Video that was extracted from Mr. Shen’s iPhone, pursuant to the Warrant, was provided to Mr. Shen’s trial counsel shortly after June 8, 2022. At this time, the first trial before a jury had commenced. That is presumably why the Hotel Video was not entered into evidence in that trial. Mr. Shen’s second trial was initially scheduled to commence on October 11, 2022. An adjournment was granted at the request of defence trial counsel on October 4, 2022, to review the Cellebrite extraction report and the accompanying report of DC Morden related to the Hotel Video and other data.

[17] There is no dispute that defence trial counsel had a copy of the Warrant that had been executed and that he knew of the resulting seizure of multiple electronic devices, including the iPhone. There is also no dispute that defence trial counsel never expressly asked for a copy of the ITO, nor did it have a copy of the ITO until after Mr. Shen was convicted. The ITO was first provided to counsel for Mr. Shen after he discharged trial counsel and retained Mr. Thorning, who requested a copy of the ITO.

[18] Just before argument on this application was to begin, Mr. Thorning provided a copy of an email exchange between Mr. Inoue and the case management coordinator for the Crown’s office between July 31, 2020 and August 4, 2020. The subject line was “Replacement Disclosure”, no doubt because Mr. Inoue took over carriage for the trial of this matter from the first lawyer Mr. Shen retained. Mr. Inoue provided a list of what he “was missing” and there is no reference to the ITO in this exchange. The coordinator responded advising that a copy of “all of the disclosure” was being provided. Although I accept that Mr. Inoue was in effect requesting disclosure, in my view he was asking for what he was missing from the first disclosure package from the Crown. There is no dispute that defence trial counsel never expressly asked the Crown for a copy of the ITO nor asked the Crown to unseal the ITO.

[19] The amended application record includes an affidavit sworn by Mr. Thorning’s law clerk. Attached to that affidavit as an exhibit is a letter dated September 12, 2023 from Mr. Inoue to Mr. Thorning. This letter was not referred to in the applicant’s factum, nor was it made an exhibit during the hearing of this application. It was not referred to in argument by Mr. Thorning until his submissions in reply. I have not relied on this letter in considering this application. I refer to it only to note that it would not have been admissible evidence in any event without the express consent of Mr. DeSantis as it is not in the form of an affidavit, which would have made Mr. Inoue subject to cross-examination and questions from this Court.

[20] Mr. DeSantis did not argue that the decision by defence trial counsel not to challenge the Warrant was a tactical decision. He did argue, however, that Mr. Shen’s trial counsel did have a copy of the Warrant which on its face did not refer expressly refer to videos, only photographs. Although Mr. Thorning referred to the terms of the ITO in argument, he did not challenge the issuance of the Warrant. In other words, the issues raised with the Warrant on this application were obvious to defence trial counsel even before the ITO was disclosed. In addition, I note that in cross-examining DC Morden, Mr. Inoue stated that he is familiar with the extraction process and asked DC Morden to agree that the extraction system using Cellebrite gave him a “dump of the entire file system”. DC Morden agreed that was done.

[21] Mr. Thorning made an argument for the first time in his preliminary submissions on this application that since Mr. DeSantis provided a copy of the ITO to him after he asked for it, and before it was unsealed by court order, that Mr. DeSantis could have and should have provided a copy with initial Crown disclosure to trial counsel. Mr. DeSantis responded to this argument and candidly advised that he has since realized that he was in breach of the sealing order and ought not to have provided Mr. Thorning with a copy of the ITO before seeking a court order to have the ITO unsealed. I accept that submission from Mr. DeSantis and his explanation for why he failed to take this necessary step.

The Relevant Law With Respect to Disclosure and S. 7 of the Charter

[22] It is the position of the applicant that the Crown's failure to disclose the ITO violated his right to make a full answer and defence, contrary to s. 7 of the Charter even though defence trial counsel did not ask for disclosure of the ITO. It is the Crown’s position that the Crown must wait until the defence makes a disclosure request to unseal an ITO and that no such request was made, and as such there was no s. 7 Charter breach.

[23] The disclosure obligation on the Crown as discussed by the Supreme Court of Canada in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 and R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 was summarized in R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, as follows:

[18] In R. v. Stinchcombe … this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown's duty to disclose corresponds to the accused's constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. Dixon … at para. 22. The purpose of disclosure is to protect the accused's Charter right to full answer and defence, which will be impaired where there is a "reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence" …

[19] The Crown's duty to disclose is triggered upon request and does not require an application to court: Stinchcombe, at pp. 342-43. The duty is ongoing; new information must be disclosed when it is received….

[20] The "Crown" for the purposes of Stinchcombe does not refer to all Crown entities, but only to the prosecuting Crown … All other Crown entities, including police, are third parties for the purposes of disclosure. They are not subject to the Stinchcombe regime. This is because the law cannot impose an obligation on the Crown to disclose material that it does not have or cannot obtain …

[24] As Mr. DeSantis argued, the law is clear that the defence cannot sit idly by while the Crown divulges the 'fruits' of an investigation. In Dixon, at para. 37, the Supreme Court of Canada quoted Stinchcombe and described defence counsel's duty to be diligent:

In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel's duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. … Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure‚ … As officers of the court, defence counsel have an obligation to pursue disclosure diligently‚ … [Emphasis Added]

[25] It is Mr. Shen’s position that the Crown’s obligation of disclosure included the ITO and that the Crown was required to disclose it even without a specific request by the defence. Mr. Thorning relies upon R. v. Osei (2007), 2007 5681 (ON SC), 152 C.R.R. (2d) 152, (Ont. S.C.J.), a decision by Nordheimer J., as he then was. In considering a s. 11(b) application in Osei, Nordheimer J. stated at para. 24:

Once the warrants were executed, and persons arrested, the Crown should have immediately proceeded to get the court file unsealed and the material edited, copied and disclosed to the defence. Indeed, one would have expected a disclosure copy of the material to have been included in the court file when the search warrant was obtained and the court file sealed. The Crown cannot foist its disclosure obligations on to the defence in this regard and, in particular, cannot sit back and insist that it is not offside regarding its disclosure obligations until such time as the defence has brought an application to unseal the court file so that the Crown is then able to obtain the information for editing and disclosure. To hold otherwise would reverse the burden of disclosure between the parties. [Emphasis added]

[26] In his factum, Mr. Thorning, relying on Osei, states that “since at least 2007, this Court has made clear that it is the responsibility of the Crown to obtain the ITO and disclose to the Defence” [emphasis added]. He provided no additional authority for this proposition from this court. It is the position of the Crown that the jurisprudence after Osei takes the opposite position and holds that it is incumbent on defence counsel to initiate the unsealing process by sending a disclosure request. Although the cases relied upon by Mr. DeSantis all dealt with a s. 11(b) Charter application, I agree with Mr. DeSantis that that is not a reason to distinguish those cases.

[27] All the cases relied upon by the Crown were from the Ontario Court of Justice (“OCJ”), save for one I will come to. Although there is some conflict in those authorities from the OCJ, the predominant view is that Osei was wrongly decided, although I note it was binding on those justices. In any event, Osei is not binding on this court and so I have considered the OCJ cases I was provided with. The decision I find most persuasive is R. v. Lu, 2012 ONCJ 386.

[28] A central issue in Lu was whether any delay fell due to the late disclosure of the ITOs. Justice Brown found that the defence did not send a request for the ITO for three months and almost three weeks and was thereby responsible for any such delay. Justice Brown examined the control and possession of the ITO and how it differs from Stinchcombe stating as follows at paras. 28 and 29:

[28] […] In this case, the applicant/defendant has submitted that it should not be required to make the request for this material. Ironically, this argument was not based upon any principled justification such as the material being within the control and/or possession of the Crown or police. It is noted that the information in support of a search warrant is not in the possession or control of the Crown or police. It is sealed and within the control of the Ontario Court of Justice. It can only be obtained by a party, be it Crown or defence, if a party makes an application to the Ontario Court of Justice to unseal the material before the relevant judge or justice of the court, and that judge or justice orders that the material be unsealed, that the material be released and the terms of the release.

[29] The procedure for providing initial disclosure by the Crown to the defence is treated differently than for any information to obtain in support of search warrant materials. The principles of Crown disclosure obligations set out by the Supreme Court in Stinchcombe are triggered by a request by defence counsel. Nonetheless, it is apparent in this case, as in most criminal cases, that the Crown put together a package of initial disclosure without waiting for a defence request for initial disclosure. If any further disclosure material is requested, following the Stinchcombe rules, the defence can request the further material. As noted above, the information in support of the search warrant is not material in the possession or control of the Crown. It is sealed by the Court of Justice, and retained by the Court of Justice subject to any subsequent order that it be released, and on the terms of any release order. [Emphasis added]

[29] Brown J. went on to consider the policy reasons for why she disagreed with the ruling in Osei at para. 30:

The defence in this case has submitted that the Crown should in all cases be required to take steps at the outset, potentially for all search warrant cases where charges are laid, that there be orders unsealing all of the search warrants which are executed and culminate in the seizure of exhibits which form the basis of charges before the court. This submission seems to echo the comments of Justice Nordheimer in R. v. Osei … Many cases in court are not contested at preliminary hearings or trials. If the Crown were to bring such applications to court to unseal all of the search warrant material and prepare the informations to obtain for release to the defence in case it is ever requested at some date in the future, this would clearly increase the need for resources in such cases. On the other hand, a requirement that the defence simply make a request for this material is not onerous for the defence, and would at least signal an intention to want to review material to make decisions required in the representation of a client. This is not an onerous burden to place upon the defence, particularly in light of the vast resources, energy and time required to comply with such a request. [Emphasis added]

[30] The only other decision that was provided to me from this court, on this issue, was the decision of R. v. Abdel-Gadir, 2015 ONSC 2503. In that case, Justice Sproat at para. 59 referred to Osei and a number of the OCJ cases that diverge on this issue, but he did not rule on the issue. In that case, the Crown conceded delay as the defence had made multiple requests of the Crown to unseal the ITO.

[31] Setting aside the issue of whether the onus was on the Crown to disclose the ITO, with respect to the remedy for late disclosure, both counsel relied on R. v. Dixon, supra, which concerned a failure by the Crown to disclose four witness statements. Justice Cory, speaking for the majority, held that to make out a violation to the right to a full answer and defence, a defendant must make out: (1) a violation of the right to disclosure; and (2) a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process: at paras. 33-34. Once a defendant establishes impairment to the right to make a full answer and defence due to a failure to disclose, they are entitled to a remedy under s. 24(1) of the Charter.

[32] As that case was an appeal, reopening was not possible. Justice Cory specifically contemplated a stay and a new trial: at para. 35. A stay requires the defendant to demonstrate irreparable prejudice to the right to a full answer and defence. A new trial only requires the defendant to persuade the Court of Appeal that there is a reasonable possibility that the failure to disclose affected either the outcome at trial or the overall fairness of the trial process.

[33] In R. v. Jiang, 2018 ONCA 108, 370 C.C.C. (3d) 373, at para. 4, Pardu J.A. confirmed the Dixon test that a trial is unfair if it is "reasonably possible that disclosure [of the undisclosed item] would have had an impact on the conduct of the defence at trial". In R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at para. 140, the court held that the focus must be on the reasonable possible uses of the late disclosure at trial or in its value in preparing for the trial and stated:

This reasonable possibility must not be entirely speculative. It must be grounded on reasonably possible uses of the non-disclosed or untimely-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant because of the non-disclosure or late disclosure. If this possibility is shown to exist, then the appellants' right to make full answer and defence was impaired: Dixon, at para. 34. [Emphasis in original]

[34] Mr. Thorning fairly pointed out that, at para. 147 of the Barra decision, the court stated the test for a mistrial somewhat differently in that the court stated that: “[t]he judge must take into account all the circumstances to determine whether there is a real danger that trial fairness has been compromised. It is a remedy of last resort since it terminates the trial prematurely without adjudication on the merits” [emphasis added]. Arguably the requirement for a “real danger” to trial fairness is a higher test for the defence to meet. I did not apply this higher standard although Mr. Thorning did argue that this test had been met in the case at bar as well.

[35] I accept, as Mr. Thorning argued, that the fairness of the trial process can be affected by the late disclosure of evidence that could have been used to seek a Charter remedy: see R. v. Sandeson, 2020 NSCA 47, at para. 76; R. v. Alcantara, 2013 ABCA 163, 544 A.R. 379, at para. 29. That, however, does not end my analysis on this issue. I must consider if and how the lack of due diligence by defence trial counsel affects my determination of whether Mr. Shen’s s. 7 Charter rights were violated.

[36] Justice Cory addressed the issue of lack of due diligence on the part of defence counsel in Dixon at para. 39 as follows:

… where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial. …

[37] In this case, I find that to apply the law set out by Cory J. in Dixon I would need to consider the materiality of the Hotel Video evidence, but this would only be a consideration if in fact it ought to have been excluded at trial.

Application of the Law to the Facts

[38] Mr. Thorning argued that the late disclosure of the ITO affected both the reliability of Mr. Shen’s conviction and the overall fairness of the trial process. With respect to the overall fairness of the trial process, he submits that the fact that defence trial counsel did not have the ITO led directly to the inability to subject the Hotel Video to an admissibility challenge and that Mr. Shen had the right to seek to exclude the Hotel Video extracted from his iPhone. With respect to the reliability of the conviction, it is the defence’s position that the Hotel Video played an essential role in the conviction of Mr. Shen.

[39] Having considered the cases referred to by counsel, with respect, I disagree with the views expressed in Osei. I prefer instead the views expressed by Justice Brown in the passages I have set out from Lu. Once a search warrant is obtained and the ITO is sealed by court order, as it was in this case, it is not in the possession of the Crown. Although an argument can be made that it is in the Crown’s control, the ITO, once sealed, can only be produced legally by the Crown to the defence if an order is obtained from the court to unseal it. Taking such a step would require notice to the defence and a court application. Furthermore, such an application can also be brought by the defence. In that regard, it is important that, in this case, defence trial counsel had a copy of the Warrant which did not expressly refer to the right to search for videos on its face. Although bringing such an application would not be difficult for either party, if the Crown is required to do so in every case it does increase the need for judicial resources in cases where that may not be necessary. More importantly in my view, although not applicable in the case at bar, it is not unusual for an ITO to contain sensitive information such as that of a confidential informant. In such a case, the Crown would have to carefully vet and redact that information before the ITO could be disclosed to the defence. This would take time by the Crown’s office and is unnecessary unless the ITO is requested by the defence.

[40] For these reasons, I find that defence trial counsel in this case failed to exercise due diligence and ask the Crown to take steps to have the ITO unsealed so that a copy could be disclosed to the defence. Had he done so, that would have required the Crown to bring the necessary application, with the consent of the defence, for an order asking the court to unseal the ITO. I agree with Mr. DeSantis that only then could the Crown be held responsible for any prejudice suffered by Mr. Shen due to delay in taking the necessary steps to have the ITO unsealed.

[41] I must make two additional points on the issue of due diligence of trial counsel. The issues raised on this application with respect to the reasonableness of the search were obvious on the face of the Warrant. This could raise an inference that the decision not to bring a s. 8 Charter application at trial was a strategic one: see Alcantara, at para. 38. I did not consider this argument as it was not advanced by the Crown.

[42] Furthermore, although a good argument could be made that the late disclosure of the ITO did not result in any inability to challenge the admissibility of the Hotel Video, as it could have been challenged on the face of the Warrant by defence trial counsel without the ITO, I have not considered that argument. Although Mr. DeSantis did make this point in his submissions, he did so more in passing and instead focused on the disclosure issue. In any event, this is simply a further argument based on the lack of due diligence by defence trial counsel. Given the principles set out in Dixon at para. 39, defence trial counsel’s lack of due diligence does not mean that no finding of a s. 7 Charter breach can be made. It depends on the materiality of the evidence in question and presumes that the evidence would have been admissible at trial. Mr. Thorning argues that the fact that Mr. Shen’s trial counsel was unable to bring a s. 8 Charter application at trial and seek an order excluding the Hotel Video, impaired his right to make full answer and defence resulting in a s. 7 Charter breach. However, that submission presumes that the application would have succeeded and that the materiality of the Hotel Video is sufficient to overcome the lack of due diligence by trial counsel.

[43] I have concluded that it is not possible to determine if there was any impact on Mr. Shen’s s. 7 Charter rights given the late disclosure of the ITO without determining if the Hotel Video should have been excluded because of the alleged s. 8 Charter breach. Furthermore, even if the Hotel Video should have been excluded as evidence at trial, the materiality of that evidence would still need to be determined given the lack of due diligence of defence counsel before determining if there was a breach of Mr. Shen’s s. 7 Charter rights.

[44] To resolve this dilemma, I am prepared to proceed as if there has been a finding of a s. 7 Charter breach, reserving my final decision on this issue until I have considered the other submissions made by counsel.

Should this Court direct a mistrial as a remedy for the s. 7 Charter breach or reopen Mr. Shen’s conviction and decide the s. 8 Charter application on its merits?

Positions of Counsel

[45] Counsel agree that if Mr. Shen’s s. 7 Charter rights were violated, I have the discretion to order a mistrial or to reopen Mr. Shen’s conviction for the purpose of hearing and deciding the s. 8 Charter application. As already stated, it is Mr. Thorning’s position that upon finding a s. 7 Charter breach, the only remedy capable of ameliorating the prejudice caused by late disclosure of the ITO is a mistrial. He argued that beyond determining whether there is reasonable possibility that the ITO could have been useful in determining the admissibility of the Hotel Video, which he submitted was a central piece of the Crown's case, any further determination of the outcome of such an application by this court, could be seen as an "after the fact justification" for the Reasons for Judgment issued in this case, relying on R. v. Arnaout, 2015 ONCA 655, 127 O.R. (3d) 241.

[46] Mr. DeSantis, on the other hand, argued that a mistrial is not warranted as any impairment to Mr. Shen’s s. 7 Charter right to full answer and defence is cured by the Crown consenting to the reopening of the matter so that this court can hear the s. 8 Charter application on its merits.

Relevant Law With Respect to Mistrials and Reopening

[47] Counsel agree that the legal test established by the Ontario Court of Appeal is that a mistrial must be ordered only in the "clearest of cases". To aid in the interpretation of "clearest of cases", R. v. T. (L.A.), 1993 3382 (ON CA), [1993] 14 O.R. (3d) 378 (C.A.), at para. 8 provides that a mistrial is appropriate when the defendant’s ability to make a full answer and defence has been impaired.

[48] The Supreme Court of Canada in R. v. Burke, 2002 SCC 55, at para. 74 highlighted circumstances where the threshold was met in declaring a mistrial and thereby represented the “clearest of cases”. The Court held:

…Mistrials have been ordered or considered as a potential solution in a range of situations: where a jury member is discharged; … where inadmissible evidence is adduced during trial which might influence the jury; … where there is inadmissible communication between a witness and a juror causing prejudice; where disclosure is made immediately prior to or during the trial; … and where the jury had already rendered a verdict but had not decided on the issue of mental disorder, making it impossible for the judge to enter the intended conviction without 'taint' … The common theme running through this case law is the test of whether there is a [TRANSLATION] "real danger" of prejudice to the accused or danger of a miscarriage of justice… [Citations omitted, emphasis added]

[49] In R. v. G. (A.), 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50 the court held:

As the trial judge correctly noted, a mistrial is a remedy of last resort and should be ordered only where necessary to prevent a miscarriage of justice. Before granting this extraordinary remedy, the court should consider and reject as inadequate other less extreme remedies, such as a mid-trial instruction: R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, at para. 14; R. v. Toutissani, [2007] O.J. No. 4364, 2007 ONCA 773, at para. 9; R. v. Burke, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 2002 SCC 55, at para. 77. [Emphasis added]

[50] In R. v. Arabia, 2008 ONCA 565, 240 O.A.C. 104, defence counsel brought an application at the sentencing hearing to reopen the trial or alternatively, to declare a mistrial. It is therefore directly on point as the question of whether to direct a mistrial arose before sentencing as it did in the case at bar. The difference from the case at bar is that this was because of a request to file new evidence, not to bring a Charter application. The trial judge dismissed both applications. An appeal was dismissed. Although Watt J.A., speaking for the court, found that the trial judge had applied the wrong test to reopen, he agreed with the trial judge that neither affidavit supported reopening. What is important to the case at bar is that Watt J.A. concluded at para. 49 that two remedies are available where parties seek to adduce further evidence after a finding of guilt has been recorded: (1) reopen the defence case; or (2) order a mistrial. If reopening, the trial judge must set aside the finding of guilt, receive the further evidence, receive reply evidence, hear submissions, and render a decision. At para. 52, he concluded that the “clearest of cases” test for a mistrial is the same before verdict and after verdict.

[51] In R. v. Toutissani, 2007 ONCA 773, the trial judge ordered a mistrial despite both counsels’ protests because he believed he could be perceived as being biased against the defendant. The defendant had challenged the production of transcripts and the judge had previously written letters of reference for the court reporter who had to appear as a witness. On a summary conviction appeal of that decision, a judge of this court quashed the mistrial. On a further appeal, MacPherson J.A. found the mistrial to be inappropriate. At paras. 9 and 10 he stated:

Third, I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.”

There is good reason for such a strong statement, as highlighted by this case. A seemingly simple criminal trial consumed 45 days of court time spread over an incredible 81 months. Near the end of the trial, the trial judge declared a mistrial, and he did so over the objections of both the Crown and the accused. The “actual harm” caused by this ruling was a manifest failure of justice for the prosecution and accused alike, a substantial allocation of court resources and staff to no effect, and dislocation and stress experienced by many witnesses, again to no effect. It is crucial that trial judges try to avoid these consequences. The application judge’s reasoning and order are faithful to this goal. [Emphasis added]

[52] In the case at bar, if a mistrial is required, the complainant will have to testify for a third time about her allegations of sexual assault. I note in R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577, where the Supreme Court of Canada considered the key principles of s. 7 of the Charter, commencing at para. 116, the Court held that the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the defendant, the complainant, the community, and the criminal justice system at large. The court noted the “highly invasive privacy consequences for complainants that follow directly from their participation in a trial for a sexual offence in open court”, at para. 121. I accept, however, that any difficulty in re-prosecuting this case a third time must give way to ensuring that any finding of guilt was properly made, but this is another reason why in this case it is crucial that I avoid that consequence of a mistrial if another remedy would be appropriate.

[53] Many of the cases that Mr. Thorning relied upon were cases on appeal where, of course, the only possible remedy for a s. 7 Charter breach is to order a new trial. That is not this case. In this case, the alternative remedy for the late disclosure of the ITO is to permit the reopening of the conviction and hear the s. 8 application on its merits.

[54] Although both counsel agree that I have authority to reopen the conviction, and Crown counsel consented to the reopening, that does not mean that this is an appropriate remedy in this case. Counsel referred to R. v. Kutynec (1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), where the Court of Appeal held that a trial judge can consider the admissibility of evidence which has been tendered at trial without objection “where the interests of justice so warrant”.

[55] The test for when to reopen a conviction has been refined in the recent case from the Court of Appeal, R. v. R.G., 2023 ONCA 343, 166 O.R. (3d) 347, a case where the appellant was convicted of numerous offences arising from the sexual abuse of his daughter on five separate occasions. There was no dispute that certain cell phone records that were not introduced at trial due to a lack of due diligence on the part of defence trial counsel constituted admissible evidence. Fairburn A.C.J.O., speaking for the court, found at para. 6 that:

… the cell phone records rest uneasily with some critical aspects of the complainant’s evidence at trial. Taken at their highest, the phone records suggest that the appellant was not at the location of the fifth alleged incident. [Emphasis added]

[56] The passages from this decision that I found to be of particular assistance are as follows:

[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in "exceptional circumstances" where "its exercise is clearly called for": Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.

[60] […] The question was not whether the cell phone records were "decisive or potentially decisive on [their] own." The question was whether those records bore upon a decisive or potentially decisive issue at trial and whether, if believed, the records could reasonably, when taken with the rest of the evidence adduced at trial, be expected to have affected the result.

[66] …Whatever caused the failure in due diligence - human error, oversight or otherwise - the problematic defence conduct is not rooted in a tactical decision. …

[67] … What now needs to be done is to calibrate the cogency of the new evidence by considering it in the context of the live issues at trial and then to determine whether the degree of cogency of the evidence compelled its admission despite the absence of due diligence.

[104] Due diligence retains an essential purpose at reopening applications. Certainty and finality demand that everyone put their best foot forward at trial. Without a robust application of the due diligence criterion, trials would become trial runs, institutional concerns would abound, and victims would be endlessly revictimized. The integrity of the administration of justice simply cannot invite the relaxation of expectations that all, including defence counsel, advance their cases - their whole cases - the first time around. [Emphasis added]

[57] Fairburn A.C.J.O. concluded at para. 109: “given the high degree of cogency attaching to the phone records, specifically as they relate to crucial issues that required determination at trial, this is one of those rare and exceptional situations where, in the interests of justice, the verdicts of guilt should have been vacated and the trial reopened”. [Emphasis added]

[58] By analogy to the case at bar, before I can consider whether to reopen Mr. Shen’s conviction, I would first have to determine whether the Hotel Video should have been excluded from evidence at trial. If that was the conclusion, I would then need to determine the cogency of the Hotel Video and decide whether the Hotel Video bore upon a decisive or potentially decisive issue at trial and whether, if believed, the records could reasonably, when taken with the rest of the evidence adduced at trial, be expected to have affected the result.

[59] Mr. Thorning submitted that if I decide to reopen the conviction of Mr. Shen, I should go no further than determine whether the s. 8 Charter application has some merit relying on R. v. Arnaout, 2015 ONCA 655, 127 O.R. (3d) 241, and the decision of Trotter J. as he then was, in R. v. Drysdale, 2011 ONSC 5451, 275 C.C.C. (3d) 219.

[60] Although not directly on point, Arnaout sets out the test that I must consider. In that case, the appellant asserted that the appearance of impartiality was lost when the trial judge amended his original reasons. The appellant argued that if the presumption of integrity was rebutted, all the trial judge's decisions should be set aside, and a new trial ordered. At paras. 18-23, the Court of Appeal reviewed the presumption of integrity set out in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at paras. 19-21 as follows:

[18] In [Teskey], … the Supreme Court held that judges benefit from a presumption of integrity. The presumption of integrity encompasses the expectation that judges will strive to overcome personal bias and partiality and will carry out the oath of their office to the best of their ability. An adjudicator is impartial when he or she is disinterested in the outcome and is open to persuasion by the evidence and the submissions. A judge must both weigh the case impartially in his or her own mind and ensure that the circumstances objectively demonstrate his or her impartiality to an informed and reasonable observer.

[19] The test to displace the presumption of integrity is similar to the test to show a reasonable apprehension of bias. Bias, partiality and lack of integrity are all similar concepts; the bar to establish any one of them is high because each calls into question both the integrity of the presiding judge and the administration of justice itself: Teskey, at para. 32. To rebut the presumption of integrity in cases featuring post-decision reasons, the appellant must present cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision: Teskey, at para. 21.

[20] In Teskey, the trial judge announced a decision with reasons to follow but did not provide reasons until 11 months later. In R. v. Cunningham (2011), 106 O.R. (3d) 641, [2011] O.J. No. 3546, 2011 ONCA 543, on which the appellant also relies, the trial judge delayed 25 months between her decision and her reasons. The question in those cases was whether an informed and reasonable observer would believe the reasons as a whole were an after-the-fact justification for a decision announced months or years earlier.

[21] This case fits only inexactly into that frame. Here, the trial judge gave lengthy reasons when he convicted the appellant. He added only a few words when he amended his reasons over 17 months later. Nevertheless, we can see no principled reason why the test set out in Teskey and Cunningham should not apply.

[22] Whether dealing with reasons released in their entirety after a lengthy delay or an amendment to previously delivered reasons, an appellate court must determine whether the trial judge's explanation for why he reached a particular conclusion constitutes an after-the-fact justification rather than an articulation of the reasoning that led to the decision. [page248]

[23] Therefore, if a judge amends his or her reasons, the test is whether the appellant has presented cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the amendment was an after-the-fact justification for the verdict. [Emphasis added]

[61] The Drysdale decision and cases that have considered this principle are of assistance in deciding whether my hearing the s. 8 Charter application on the merits could cause an informed and reasonable observer to think that the reasons on the application are an after-the-fact justification for the decision to convict Mr. Shen. This, of course, presumes that the s. 8 Charter application is dismissed.

[62] In the Drysdale case, evidence emerged during the sentencing hearing that casted doubt on Justice Trotter’s decision to convict Mr. Drysdale. He found the evidence so significant that he permitted the defence to reopen its case and then declared a mistrial. This was a case where the sole issue was identity. Justice Trotter found Mr. Drysdale had lied about wearing a distinctive hoody which, based on the new evidence, was clearly wrong. Trotter J. held that the only reasonable course of action was to declare a mistrial. He stated at paras. 27-29:

[27] … The problem with continuing the trial was that I had already made a very strong adverse finding of credibility against Mr. Drysdale, one that caused me to reject his evidence as a whole. While it might have been the intention of the Crown to adduce evidence on whether the police would have been able to see the distinctive markings on Mr. Drysdale's hoody in the heat of the moment (and in view of the lighting conditions early that evening), this would not have impacted directly on the specific adverse credibility finding I made.

[28] The Crown also urged me to come to the same conclusion about Mr. Drysdale's evidence and the case as a whole by finding other reasons to disbelieve his evidence. But this would be an artificial and highly unsatisfactory exercise because I was very clear about what it was that caused me to disbelieve Mr. Drysdale's evidence. Any attempt to re-build my credibility findings on a different footing would be disingenuous. The reasoning process would have to look something like this: "I said that the hoody issue caused me to reject all of Mr. Drysdale's evidence, but what I really meant was that it was just one of the many things that caused me to reject his evidence." This chain of reasoning could not be relied upon as authentic.

[29] Let me put it another way. If I were to continue the trial and permit further evidence to be called, short of finding Mr. Drysdale not guilty on all counts (a result I am not sure is warranted either), he, along with reasonably informed members of the public, would always wonder whether my "new" conclusions and reasons were infected by my prior adverse finding of credibility. Whatever result I reached would always be open to question. The only way to address this issue in a manner that is fair to both sides is to start all over again. [Emphasis added]

[63] I have reviewed other decisions that have considered Drysdale or the concerns raised in that case: see R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, and the cases referred to therein. They are all cases where a strong finding of credibility has been made in favour or against a particular witness and the new evidence would require the judge receiving the new evidence to reconsider that finding of credibility.

Application of the Law to this Case

[64] In my view, the Drysdale decision is clearly distinguishable from the situation before me. To decide the s. 8 Charter application, I must focus on the evidence of officers Morden and Lam and the law that applies to determine whether the extraction and search of information from the iPhone was reasonable or not. If I were to decide the s. 8 Charter application on the merits, I am not considering the credibility of any witness save for DC Morden and DC Lam, but their credibility was not challenged. All I am deciding is the admissibility of the Hotel Video. Furthermore, as I have set out, the decision as to what remedy is available to Mr. Shen depends on the actual cogency of the evidence. In my view, it is not enough to consider the drastic remedy of a mistrial or a new trial by simply finding that there is some merit to the s. 8 Charter application, or more accurately find that it ought not to be dismissed summarily without considering the merits.

[65] Even if I get to a s. 24(2) analysis, I am considering the Grant factors rather than my reasons for conviction. It is true that one of the Grant factors would require me to consider the importance of the Hotel Video to the Crown’s case, but that is something that this court must do in every case where such a Charter application is made. Mr. Thorning argued that in those cases there has been no conviction, but I disagree. I do not see how this is different from, for example, a case where the only evidence the Crown has is a firearm, clearly found in the possession of the defendant, which I must determine whether the firearm should be excluded from evidence at trial. In other words, this court is regularly required to consider Charter applications to exclude evidence in cases where it is obvious that by excluding evidence the Crown has no case and will have to ask for a stay of the charges where the defendant would otherwise be found guilty of a serious offence. Similarly, it is not uncommon for this Court to hear s. 11(b) Charter applications after conviction. I know of no case where it is suggested that the trial judge in those circumstances is trying to justify his or her decision to convict if the decision is made to dismiss the s. 11(b) Charter application. Furthermore, there is no way for me to determine whether the conviction of Mr. Shen should even be reopened without determining whether the Hotel Video ought to have been excluded given the test set out in R.G. or whether there has been a s. 7 Charter breach without considering the materiality of the evidence.

[66] For these reasons, the applicant has not persuaded me that I should not proceed to decide the s. 8 Charter application on the merits. I agree with Mr. DeSantis that by hearing the s. 8 Charter application and deciding it on the merits remedies any prejudice Mr. Shen suffered because of a possible s. 7 Charter breach. If I decide that the Hotel Video should not be excluded from trial evidence, then Mr. Shen is not entitled to any further remedy. If, on the other hand, I determine that the Hotel Video ought to have been excluded, then I must consider what remedy is appropriate.

The Merits of the s. 8 Charter Application - Should the Hotel Video be Excluded from the Trial Evidence?

Evidence Related to the Seizure and Search of the iPhone

The Warrant and ITO

[67] On September 19, 2019, when Mr. Shen was arrested, search warrants were executed on his vehicle as well as his residence. Among other things, five cell phones, including the iPhone, and one laptop were seized (collectively, the “electronic devices”). On December 19, 2019, the police applied for the Warrant, which was granted, to search the electronic devices. While the Warrant authorized the extraction of all of the electronic devices, only information from the iPhone was ultimately extracted and disclosed to the defence.

[68] The ITO, sworn by DC Judy Kim on December 19, 2019, included information from DC Wookey, who was the affiant for the search warrant application for Mr. Shen’s residence. The information he set out in support of that warrant application is included in Appendix “D” of the ITO. The allegations of the complainant are set out in detail there, including the fact that the complainant and Mr. Shen had met previously, that they became acquaintances and exchanged social media information, the fact that after the alleged assaults the complainant messaged Mr. Shen on Instagram and what Mr. Shen’s Instagram username was. In addition, the evidence of the complainant’s friend, who was with her when she met Mr. Shen, is included along with the fact that she was brought to the hotel by two males, one of whom it was reasonable to believe at that time was Mr. Shen and the other who was unidentified but presumably a friend of his.

[69] The grounds for searching Mr. Shen’s residence are also included in the ITO and include the statement that Mr. Shen’s “cellular phone could provide evidence to confirm the suspect’s identification based on evidence of his Instagram account” and that his cellular phone “serves many purposes including granting access to social media. It is believed that Mark Shen uses Instagram with the handle markshen918. He could use a cell phone to access Instagram”.

[70] DC Kim set out in the ITO that she had reasonable grounds to believe that the cell phones seized will afford evidence of the offences as Mr. Shen and the complainant “communicated through their cellular phones (through social media platforms)”. In addition, she stated that the complainant had disclosed to police that “she was having flashbacks of the incident and recalls flashes of light (like from a cellular phone/camera) and Shen being naked on top of her sexually assaulting her”.

[71] Appendix "B" of the Warrant sets out the things to be sought “as evidence in respect to the commission of an offence” as follows:

The contents of five cellular phones and one laptop, which are electronically stored within, which may include but are not limited to photographs, text messages, electronic messages, emails, telephone logs or any communication between individuals who may be involved in this offence ….

Terms and Conditions

The examination and analysis of the five mobile cellular devices and one laptop referred to above will be based on the offence set out in this warrant, [at that time both the stupefying and sexual assault offence] and will be conducted by a member of the Toronto Police Service Technological Crime Section who is a Certified Forensic Computer Examiner. It is my intention that these searches will be conducted using computer forensic software that allows for the search of these items without modifying, destroying, or damaging any of the data.

The five mobile cellular devices and one laptop will be taken to the Intelligence Division building of the Toronto Police Service in the City of Toronto …

Once secured at the Intelligence Division, the seized items will be forensically examined by trained police personnel.

The seized items listed in Appendix “B-1,” as a result of the investigative techniques used, will be dealt with in accordance with the following terms:

1. That the items be stored at the Intelligence Division building of the Toronto Police Service, City of Toronto, Province of Ontario, for further examination by the Technological Crime Section of the Toronto Police Service.

2. That the member of the Technological Crime Section will extract:

Data relating to use, ownership, and access

Data relating to text messages, emails, electronic messages, emails, telephone logs, or any communication between individuals who may be involved in this offence;

Data relating to any possible photographs that may be involved and/or relevant to this offence. [Emphasis added]

[72] At trial, I heard the evidence of DC Morden, who extracted content from the iPhone using a Cellebrite extraction program, and DC Lam, who was tasked to review the information extracted from the iPhone. DC Morden was also qualified to give expert opinion evidence in the forensic analysis of computer devices, cellular phones, and digital media. He testified that he verified that the extraction was successful and that he ensured that what was given to DC Lam was factually accurate. DC Morden also presented a PowerPoint presentation to explain his evidence that there was a “high probability” that three specific files he looked at, which included the Hotel Video, came from the iPhone. DC Lam identified certain images and videos and testified to when they were created on the iPhone according to the information extracted by the Cellebrite Reader. Neither the evidence of DC Lam nor DC Morden was seriously challenged in cross-examination at trial and, as stated in my Reasons for Judgment, I accepted their evidence.

[73] As part of the s. 8 Charter application, both DC Morden and DC Lam gave further evidence. A summary of their evidence relevant to this application is as follows.

Further Evidence of DC Todd Morden

[74] DC Morden has been an examiner with the Tech Crimes Unit (“TCU”) of the Toronto Police Service (“TPS”) since 1996. He is the senior analyst with the most time in the unit. On February 17, 2020, DC Morden connected the iPhone to a system police maintain to keep it powered in the police property vault. A technique is then employed to try to determine the password for the iPhone so that the iPhone can be unlocked. The iPhone was not unlocked until June 7, 2022.

[75] Once the iPhone was unlocked, DC Morden used the Cellebrite extraction program to have all the files on the iPhone decrypted and downloaded into a large, compressed zip file. He ended up with 137 gigabytes of data in the file. DC Morden testified that he did not have a choice but to extract the entire contents of the iPhone because at that point he was not conducting the search. Rather he was building what he called a “safe container” so that he could be certain that the files could not be changed to protect continuity of the files.

[76] DC Morden testified that he read the Warrant when he first took possession of the iPhone and again once it was unlocked. He did not have the ITO and almost never does. DC Morden did not have a lot of conversation with an investigator about the case and generally only does if he has concerns about the warrant. DC Morden did not see anything glaring or any obvious red flags for information that should be removed initially and so he decided to extract all the data from the iPhone. DC Morden testified that he believed that he was acting within the scope of the Warrant when he extracted all the data from the iPhone. Because the trial had begun, there was a concern about whether it was already too late.

[77] In cross-examination, DC Morden agreed that he extracted information from the iPhone that was beyond the scope of the Warrant. He denied that, as a result, he did not govern himself by the terms of the Warrant. According to DC Morden, his definition of “extract” is to provide the data to the investigators who then define what they want out of the device. He sees his “extraction” as different from an extraction by the investigator.

[78] DC Morden did not look at any of the data extracted from the iPhone, but rather prepared a report to allow the investigator to access the data. As one of only ten examiners in the TCU, DC Morden did not have time to do the analysis, and this is not something he generally does. He agreed to create the report and the analysis role was going to be passed on to an investigator who would do the actual search of the content of the iPhone. As he did not have intimate knowledge of the investigation, it would be the investigator who would be the “gatekeeper” to conduct their search within the scope of the Warrant. He believes that, with the resources of the TPS, he can transfer this power to the investigators.

[79] To make it easier to search and to make a “human readable version” of the contents of the iPhone, DC Morden used the Cellebrite Reader program to parse and organize the file into different categories - a kind of structure that is commonly used by a user of an iPhone. He removed a lot of the underlying original data bases, system files and logs that would not mean anything to an investigator. He then created a report that set out different categories of what a user would normally see on an iPhone. The categories in this case were summarized in an extraction summary and included call logs, chats, emails, documents, images, photos/images, videos, text messages, audio files, social media, web history etc. The entire report created by DC Morden was provided for that purpose and DC Morden let the investigator determine whether the information that he was looking at, using the Cellebrite Reader, was within the scope of the Warrant.

[80] With respect to the language of the Warrant, according to DC Morden, data relating to text messages, emails, electronic messages, telephone logs, or any communication between individuals who may be involved in this offence is “pretty broad”. He testified that communication can also be by audio files and videos. The same is true of the use, ownership and access term of the Warrant because the fact that someone owns a device does not mean that on a specific date, they were necessarily the person using the device. DC Morden also testified that even if an investigator puts a time parameter using the Cellebrite Reader to search the data, there could be data that was in fact generated within that time parameter that would not have a time stamp and therefore would not be captured in the search within that time parameter.

[81] DC Morden testified that in an Apple iPhone, the camera app is used both to take photographs or videos simply by the user using their finger to swipe between different options. On an iPhone, any chat-based app such as WhatsApp or Snapchat can take pictures and store them, though not necessarily where the camera app would.

[82] In cross-examination, DC Morden testified that the Cellebrite extraction program could be used to extract only certain categories of information from a phone such as pictures, videos or documents. The Cellebrite Reader allows the investigator to look at content by category, which means an investigator could look at photographs but decide not to look at videos for example.

[83] In re-examination, DC Morden testified that, with respect to text messages, emails, electronic communications, or any communication between individuals in this offence, he would not have been able to only extract those from the iPhone without looking at the data itself. He would have to look at the data to see if it was relevant. DC Morden testified that even if he had known the names of the persons involved in the offence, he would still need to examine the particular communication to determine who was involved. Even once the data is parsed into the different categories, you must go in and look at each of the conversation threads to see who the individuals involved are and whether they are an individual involved in the offence. The same would be true of anything including photos or videos. With respect to a photograph at the extraction stage and even at the parsing stage you would have to look at it to see if it was relevant.

[84] The first report provided by DC Morden was so big that the investigators were unable to open it (the “full extraction report”). As a result, on June 8, 2022, DC Morden created a smaller report that focused a few days around the date of the offence of September 15, 2019 (the “time limited extraction report”). He stated however that timelines are difficult because there could be data on the device that could have been received or sent or created that may not have a time stamp on it.

Further Evidence of DC Ken Lam

[85] DC Lam has been a member of the TPS for almost 14 years. He had experience on one prior occasion using the Cellebrite Reader program to search the contents of a cell phone, after receiving a brief run-through of the program from a Tech Crimes officer. On June 9, 2022, he was instructed by Detective Charles Lee to review the extraction report prepared by DC Morden. At first, DC Lam was given a block of data of about 2.5 gigabytes with dates between September 14 to 17, 2019. I presume that this was the smaller report that DC Morden said he produced when the investigators could not open the entire file. DC Lam knew that the iPhone had just been unlocked and that the trial had just started, so there was a sense of urgency.

[86] DC Lam recalled only a conversation with Detective Lee about the case. He was asked to analyze all the data on the iPhone within the timeline of the offence. He did not talk with any of the other investigators before doing his searches on June 9, 2022. DC Lam did read the initial officer’s report and the prosecutor’s summary/synopsis to obtain certain details of the alleged offences along with the SOCO photos so that he knew what he was looking for. He knew the name of the defendant, the complainant, the names of any witnesses if they were in those documents, where the complainant and Mr. Shen met earlier, and the location of the offence.

[87] DC Lam did not read the Warrant although he assumed that there was one because otherwise, he would not be able to do his job. In cross-examination, DC Lam testified that he did not need to look at the Warrant even though he never had a discussion regarding the Warrant. He did receive instructions regarding what he was detailed to do from Detective Lee.

[88] DC Lam testified that with the time limited extraction report from DC Morden, he started with the videos category. He reviewed all 339 of them. This is when he found the Hotel Video that he noted had a male talking to a female. When he found this video, DC Lam compared it to the SOCO photos of the hotel room where the offence was alleged to have occurred and the complainant’s clothing. He determined that the Hotel Video was taken in the hotel room and that the clothing shown in the Hotel Video belonged to the complainant. After doing that comparison, DC Lam testified that he “extracted” the Hotel Video and created a PDF file so that the video could be saved. DC Lam then reviewed 190 chats and then 35,304 images. In the images, he found one of the photos that was introduced into evidence at the trial. When DC Lam found the photo, he compared it to the Hotel Video to ensure that it related to the case, and after confirming that, he copied it. He then brought the file with the Hotel Video and the photo to Mr. DeSantis. This all occurred on June 9, 2022.

[89] Between August 29 to September 2, 2022, DC Lam reviewed the full extraction report provided by DC Morden - the one with 137 gigabytes of data. DC Lam did not read the Warrant before doing so. Again, he took oral instructions from Detective Lee.

[90] DC Lam testified that he decided to review the images first – there were 535,369 of them. He filtered these before looking at any in a number of ways. First, he only searched for anything above 101 kilobytes to over 500 kilobytes in order to focus on photos that were taken by the iPhone because those would usually be a larger size because of the number of pixels. In addition, he applied a date filter of September 13 to 16, 2019 which would provide photos with a creation date in that period. He also added a filter of “img” in front of the file name. As a result of these three filters, DC Lam had 284 images to review. Of those, he identified 14 as being relevant to the investigation, which included a photo of the Rolls Royce Mr. Shen was driving at the time of the alleged offence that was entered as an exhibit at trial.

[91] DC Lam next reviewed the videos applying the same three filters. This reduced the 12,677 videos to 33. He found six that were relevant which included a very short video of Mr. Shen in the Rebel Nightclub with two other males which was entered into evidence at trial.

[92] DC Lam then proceeded to do the email extraction. He applied the same date period filter and found two emails that were entered into evidence at trial which established that Mr. Shen had booked a room at the Hilton. He did the same for the text messages and found an image of a text message that was entered into evidence at trial.

[93] After DC Lam completed these extractions using the filters he testified to, he went on to review all the data he had from the iPhone. When asked why, DC Lam testified that he believed that there might be additional photos, emails and videos and other conversations between Mr. Shen and the complainant that might not be timestamped and so would not be captured by the date period filter he used. Later in cross-examination DC Lam testified that he would have looked at most but did not look at all the images, social media and emails.

[94] DC Lam knew he could search the data such as emails or chats for a name and then see all the emails or chats in which that name appeared. DC Lam remembered typing in the first name of the complainant in the search bar, but he testified that if the name in the email or chat did not match 100 percent to the name he put in for the search, the email or chat would not come up. This would only work on text. He could not do this for photos or videos unless they were tagged with a name.

[95] In cross-examination, DC Lam testified that he did not go through the data in every single category in the extraction summary prepared by DC Morden. He thinks that the only two categories that he did not go through were the Cookies and the Wireless Networks. As for the rest, DC Lam admitted that he “looked at” over 500,000 images, over 12,000 videos, 895 emails, 52,880 social media messages, not knowing whether they were related to the offence. According to DC Lam, Detective Lee would have been aware of how much content was on the iPhone. Based on the instructions he received from Detective Lee, DC Lam believed that he was authorized to look at the entire extraction.

[96] DC Lam also reviewed the extractions from the four other cell phones seized in this case. He believes that the data from those cell phones had been extracted in the same way. DC Lam did not look at all the data on these phones because the dates from the extraction from those phones did not fall within the time frame for this offence for when those phones were operated.

[97] I did not hear from Detective Lee.

Relevant Law With Respect to s. 8 of the Charter and the Search of Cell Phones

[98] The Supreme Court has repeatedly held that there is a high privacy interest in the type of information that most people routinely keep on their electronic devices, including cell phones: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 38; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 34; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 28-37; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 50-52; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 105.

[99] The defence application does not raise any issues with respect to the issuance of the Warrant. The only time in oral argument that Mr. Thorning stated that the Warrant would be constitutionally overbroad would be if the term: “[d]ata relating to text messages, emails, electronic messages, emails, telephone logs” was interpreted to allow for a search of any such communications regardless of whether those communications were between persons involved in the offence. Although that term of the Warrant using the word “or” could be stretched to allow for such an interpretation, the only reasonable interpretation of that term is that all communications in this category had to be between persons involved in the offence. That is how this term was interpreted by DC Lam. Accordingly, the only issue before me is whether the extraction of data from the iPhone and the search of that data was reasonable and in compliance with s. 8 of the Charter and the common law, with this understanding of the meaning of that term of the Warrant.

[100] Section 8 of the Charter provides everyone with the right to be free of unreasonable searches and seizures. Both counsel relied heavily upon R. v. Vu. Justice Cromwell, for the Court, set out the governing principles that apply to computer searches, which also apply to cell phones as they are functionally equivalent. First, the police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant, which was done in this case, and second, the authorized search must be conducted in a reasonable manner, to ensure that the search is no more intrusive than is reasonably necessary to achieve its objectives: Vu, at para. 22. As a general rule, search protocols do not need to be imposed in advance of the search because, as Cory J. stated at para. 57:

… At that point, an authorizing justice is unlikely to be able to predict, in advance, the kinds of investigative techniques that police can and should employ in a given search or foresee the challenges that will present themselves once police begin their search. In particular, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for. For example, an authorizing justice’s decision to limit a search for child pornography to image files may cause police to miss child pornography that is stored as a picture in a Word document. In short, attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process. These problems are magnified by rapid and constant technological change. [Emphasis added]

[101] However, Cory J. also made it clear at para. 61 that his finding that a search protocol was not constitutionally required “does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so”. [Emphasis added]

[102] R. v. McGregor, 2023 SCC 4, 422 C.C.C. (3d) 415, deals with a different factual situation but para. 29 is instructive:

The fact that a search of an electronic device is expressly authorized by warrant does not mean that any file contained therein may be analyzed — even where no search protocol has been imposed. Cromwell J. stressed in Vu that police officers are “bound, in their search, to adhere to the rule that the manner of the search must be reasonable” (para. 61). Consequently, they cannot “scour the devices indiscriminately” (para. 61) but must limit their search to the types of files that are “reasonably necessary to achieve [the warrant’s] objectives” (para. 22). Should “the officers realiz[e] that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so” (para. 61) … [Emphasis added]

[103] Mr. DeSantis also relies on R. v. McNeill, 2020 ONCA 313, and R. v. Millard, 2016 ONSC 348. Both cases referenced the Supreme Court of Canada’s decision in CanadianOxy Chemicals Ltd v. Canada (Attorney General), 1999 680 (SCC), [1998] S.C.J. No. 87, where the Court explained why it is appropriate to interpret s. 487 and the purpose of search warrants broadly. Justice Major, for a unanimous court, stated in part as follows:

[15] On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.

[19] While s. 487(1) is part of the Criminal Code, and may occasion significant invasions of privacy, the public interest requires prompt and thorough investigation of potential offences. It is with respect to that interest that all relevant information and evidence should be located and preserved as soon as possible. …

[21] At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light.

[22] The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. …

[29] The broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations. This is particularly true with respect to personnel records which may contain a great deal of highly personal information unrelated to the investigation at hand. Judges and magistrates should continue to apply the standards and safeguards which protect privacy from unjustified searches and seizures. [Emphasis added]

Relevant Law With Respect to the Reasonableness of the Search of the iPhone

[104] Although the legal principles that govern the seizure and search of cell phones and computers can be easily stated, what is required of a reasonable search in the case at bar is more difficult to ascertain. Most of the cases I was provided with deal with a situation where police are searching for evidence of one crime and find evidence of a different one. This involves a discussion of the plain view doctrine. Mr. DeSantis raised this originally but then during oral submissions advised that he was not relying on this argument.

[105] A search conducted under the authority of a judicial authorization is presumed to be valid: R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at para. 83; R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, at para. 19.

[106] Mr. Thorning argued that in considering the reasonableness of the search that I must consider the ITO, even though he has not challenged the issuance of the warrant. I disagree. In R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at paras. 59 and 60, the Court of Appeal held that police officers who are executing a search warrant must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched. The function of the warrant is to guide and limit the actions of the police officers.

[107] In Millard, Goodman J. at paras. 64-65 rejected an argument that the language in the Warrant under the “communications” heading should be limited to a temporal connection. There, communications were defined as follows: “[c]ommunications can be completed through voice transmission, text message transmission, multimedia message transmission, instant messaging/chat, email, video”. In addition, in that case, the applicant argued that ownership and usage could be ascertained by simply reviewing a user log or a sign-in screen, at para. 97. Justice Goodman also rejected that argument and held at paras. 98-99 as follows:

[98] The Supreme Court's remarks in Vu are helpful on this issue. In that case the court observed that evidence of ownership and use is not easily predicted from the outside of a computer. That is, until police look, they have no way of knowing precisely where and in what form evidence of ownership may be located.

[99] I agree with the Crown in that a computer with an account in, say, Milliard's name, is some evidence of ownership and of usage. But it does not conclusively prove he used a device or computer [at] a particular time or did a specific act. The persuasive force of the contents of the computer, for example, emails or photos, provide more compelling evidence of user and ownership. There is no legal basis to suggest police are to be limited to the worse [sic] evidence when better evidence is at their fingertips. More to the point, it was open to the jurist to permit police to secure the best evidence.

[108] The Crown also relies on the Ontario Court of Appeal's decision in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241. In that case, the police obtained a warrant to search the defendant’s home and computers for evidence of fraud. During the computer search, the police discovered images of child pornography. The reviewing officer then conducted a full search of the hard drive, including a search of video files that the officer would not have examined for the purposes of the fraud investigation. The Court of Appeal held that this went beyond the scope of the warrant. The facts of this case are distinguishable from the case at bar, and the decision was made before the Supreme Court of Canada decided Vu, but statements made by Blair J.A., writing for a unanimous court, are of assistance to the issue before me of whether the search of the iPhone was reasonable.

[109] Justice Blair made it clear that given the highly private and confidential personal information that can be expected to be found on personal computers, the search of a computer pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant: at para. 42. In Jones, the warrant did not contain any restriction on the types of computer files that could be searched and as Blair J. A. observed, authorized "unlimited access to the computer's files and folders in order to accomplish its search objectives” namely evidence of fraud: at para. 42.

[110] Justice Blair held that the focus in a warrant on the types of evidence being sought as opposed to the type of files that may be examined is helpful in cases where it may be "necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged": at para. 43. He went on to hold that:

To the extent they [the police] are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the police are entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking ... [at para. 44, emphasis added]

[111] The Jones decision was considered again by the Court of Appeal in R. v. John, 2018 ONCA 702, 142 OR (3d) 670, at paras. 43-44 and stated as follows at paras. 24 and 26:

[24] I do not accept the argument that there must be prior evidence of concealment of incriminating evidence before police can look at all images and videos stored on a computer in this kind of investigation where some child pornography has been located on the computer on initial examination. Rather, a search of all images and videos is appropriate in an investigation like this precisely to determine whether there is more child pornography on the computer. To limit police to searches by hash values, file names and download folders would be to provide a roadmap for concealment of files containing child pornography.

[26] Finally, I reject the argument that the search of all images and videos here was overly invasive because the vast majority of the offending material would have been located using a combination of hash value comparison, keyword searching of file name and searching the file folders most likely to contain child pornography. This argument fails because it uses the ultimate results or fruits of the search to dictate whether the scope of the search was reasonable. Given the limitations of searching only by hash value or file or folder name discussed above, hindsight should not be used in this way to turn what was once a reasonable search in all the circumstances into an unreasonable one.

[112] Mr. DeSantis relies on R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303 for the proposition that the execution of a warrant by someone who does not look at the warrant is not necessarily a breach of the warrant. The case is not on point as the warrant in question set out how keys to the locker should be obtained. A different method was used to access the locker because the officer in charge did not read the warrant. The court found there was no breach of the terms of the warrant as the core of the warrant was to covertly enter the locker: at para. 199. In the case at bar, in my view, the fact that DC Lam did not read the warrant does not automatically result in a breach of the Warrant, provided that the search of the iPhone he conducted was in fact in compliance with the terms of the Warrant.

Application of the Law to the Facts

[113] In the case before me, the Warrant did not impose time-limited search protocols. Furthermore, the Warrant did not set out the way the search of the electronic devices was to be conducted. This approach accords precisely with the approach by the Supreme Court of Canada in Vu. As noted above, the Court held in Vu that although pre-authorization is necessary for a search of electronic devices, a search warrant spelling out in advance the manner of searching a computer or cell phone would generally be neither necessary nor appropriate. The issuing justice in this case left it to the police to search in a reasonable manner for the data specified in the Warrant for evidence of the two offences Mr. Shen was charged with at that time.

[114] The first issue I must consider is how to interpret the language of the Warrant and whether its terms precluded a search for videos, as submitted by Mr. Thorning. He argued that there were no reasonable grounds to believe that videos would lead to any relevant evidence in this case.

[115] Neither the Warrant nor the ITO specifically refer to any potential videos. Mr. Thorning argued that this was because the ITO stated that the complainant had disclosed to police that “she was having flashbacks of the incident and recalls flashes of light (like from a cellular phone/camera) and Shen being naked on top of her sexually assaulting her”. Mr. Thorning argued that this is why photographs were specifically mentioned in the Warrant, although I note the complainant only mentioned flashes of light. Although he conceded that a flash may be on while a video is taken by a cell phone, he submitted that this does not produce a brief "flash" of light but rather a continuous stream of light akin to a phone's flashlight function being on. He submitted that DC Lam could have had no doubt that the video tendered at trial was not a photograph (let alone a flash photograph) since videos have their own file type and the video in question is a few minutes of black screen at the outset.

[116] The evidence of DC Lam is clear that he deliberately searched for videos. Videos were a separate category in the Extraction Report and so he could have avoided doing so. I do not agree, however, that his doing so was contrary to the terms and conditions of the Warrant. As I have stated, in this case where the only attack is the reasonableness of the search, it is the terms of the Warrant that govern. In accordance with the CanadianOxy Chemicals decision I have referred to, the law is clear that I should apply a liberal and purposeful interpretation to the terms of the Warrant. This approach is consistent with the wording of Appendix "B" of the Warrant which begins by setting out the things to be sought “as evidence in respect to the commission of an offence” and in reference to the electronic devices that they “may include but are not limited to” photographs, text messages, etc.

[117] In this case, in my view, I can rely simply on the terms of the Warrant. The Hotel Video is clearly a communication between Mr. Shen and the complainant, and it is related to the offence alleged of sexual assault. It fits squarely within the term authorizing the search for “any communication between individuals who may be involved in this offence”. The fact that photographs are specifically mentioned is no doubt due to the recollection of the complainant referred to in the ITO, but in my view that does not mean that only photographs could be searched for. Clearly a photograph could not constitute a “communication” and so to search for photographs would require a separate term as set out in the Warrant in this case.

[118] It is also argued on behalf of Mr. Shen generally that the search of his iPhone was not reasonable. Mr. Thorning submitted that what occurred here was a “dump” of the entire contents of Mr. Shen’s iPhone. Mr. Thorning’s argument was not so much directed at what DC Morden did, but rather at the fact that DC Lam looked at most of the content on the iPhone, but I will deal with the evidence of DC Morden as he testified that he used the Cellebrite extraction program to have all the files on the iPhone downloaded into one large file.

[119] I accept DC Morden’s evidence that he did not have a choice but to download all the contents of the iPhone because at that point he was not conducting the search. This was not a case where the Warrant put a temporal time frame on the search of the iPhone. I also accept DC Morden’s evidence that by creating a copy of all the data on the iPhone he was building a “safe container” to protect continuity of the files. Pursuant to s. 490(1)>(b) of the Criminal Code, police have a statutory obligation to take care to preserve the integrity of the iPhone (and its data) pending completion of the proceedings. Had he not taken this step, continuity of the data on the iPhone could have been a live issue at trial.

[120] Furthermore, I accept DC Morden’s evidence, which was not challenged, that he did not look at any of the files when he did this download. As such, this procedure did not infringe Mr. Shen’s s. 8 Charter rights. The police had judicial authority to seize the iPhone and performing this download did not intrude Mr. Shen’s privacy interests as it simply created a duplicate of the data already in the possession of the police. Mr. Shen’s privacy interests were not engaged until DC Lam began to do his search of the extraction file that DC Morden downloaded. For these reasons, I find that the full extraction of the data on the iPhone was reasonable and not in breach of the terms and conditions of the Warrant.

[121] The question then is whether the actual search of the data from Mr. Shen’s iPhone was reasonable and complied with the terms and conditions of the Warrant.

[122] Although I do not wish my Reasons to be seen as endorsing the fact that DC Lam conducted his search of electronic devices without looking at or preferably having a copy of the actual Warrant in his possession when he was conducting his search of the iPhone, he did receive instructions from Detective Lee as to what he was to search for. In my view, if I find that DC Lam in fact complied with the terms and conditions of the Warrant, and his search was reasonable, the fact he did not have a copy of the Warrant could not result in a finding of a s. 8 Charter breach. If I find his search was unreasonable, then this evidence would go to the seriousness of the Charter breach.

[123] DC Lam began his search by looking only at the time limited extraction report DC Morden created that focused on a few days around the date of the offence of September 15, 2019. Although I appreciate that was because he was unable to access the full extraction report, I find that DC Lam was making a good faith effort to search only for evidence related to the offences in the Warrant. He began his search of the time limited extraction report by narrowing the date even further. As I have set out, he used three filters to reduce the amount of data that he was looking at even further and focus on the time period of the offence. In this first search he found the Hotel Video. At this point, there was urgency to the search as the trial had just begun. Once there was more time and DC Lam was able to search the full extraction report, he began again with using the same three filters to reduce the amount of data that he was looking at to focus on a few days around the date of the offence.

[124] Once DC Lam completed his search of the full extraction report using the three filters, he looked at most of the data extracted from the iPhone. Based on the evidence, this included the call log, chats, emails, instant messages, social media, audio files, documents, images, and videos. Apart from the search of the videos, there was no argument before me that any of the other categories DC Lam searched were outside the scope of the warrant in terms of the data that the police were authorized to search for, save for the argument that it was all looked at regardless of the date, which I will come to. Before I do, I will consider the fact that DC Lam did not restrict his search to the time limited extraction report and consider the categories of information that DC Lam looked at and whether his search in these two respects was reasonable.

[125] I find the fact that DC Lam did not restrict his search to the time limited extraction report was reasonable. Although it is clear that a filter can be used to limit a search to data within a particular time frame, that was not a term of the Warrant and in my view, on the evidence, there is a good reason for that. As DC Morden testified, even if an investigator puts a time parameter using the Cellebrite Reader to search the data, there could be data that was in fact generated within that time parameter that would not have a time stamp and therefore would not be captured in the search within that time parameter. Furthermore, the evidence is undisputed that photographs and videos may not be found by a time parameter limited search because they are usually not date stamped. I therefore find that DC Lam was not restricted to searching the time limited extraction report.

[126] I turn then to the categories of evidence that DC Lam searched. Again, I come back to the evidence of DC Morden which I accept. He testified that the first two terms of the Warrant are “pretty broad”. With respect to the use, ownership and access term of the Warrant he explained that just because someone owns a device does not mean that on a specific date, they were necessarily the person using the device. I have set out the passages from Millard, where Goodman J. at paras. 98-99 set out why this category should be broadly construed and not limited to a temporal connection to the offence because the police have no way of knowing precisely where and in what form evidence of ownership may be located. I agree with his reasoning.

[127] DC Morden also explained that the terms of the Warrant relating to text messages, emails, electronic messages, telephone logs, or any communication between individuals who may be involved in this offence can include communication by audio files and videos. I note that in this case, those communications could include not only Mr. Shen and the complainant but also the unidentified male who was present when the complainant was brought to the hotel and the complainant’s friend who was interviewed as a witness.

[128] I am not persuaded that the categories of data that DC Lam looked at fell outside the terms and conditions of the Warrant.

[129] I turn then to what was the second primary position of the applicant as to why the search by DC Lam was unreasonable. Mr. Thorning’s argument is that by looking at everything, DC Lam was scouring the iPhone indiscriminately, in breach of the principles set out in Vu.

[130] The term “scouring” was used by the Court in Vu, and I presume that was deliberate. In my view, it is important that the Court used this term as opposed to simply stating that an officer could not “look” at a data file. The term “scouring” should be given its ordinary meaning in this context, namely, to search a place or thing very carefully in order to try to find something. In my view, Vu does not prevent the police from looking through much of the data on a cell phone, at least in a cursory fashion. This is consistent with the language of Blair J.A. in Jones, at para. 44, which was decided before Vu, that police should be able to look at a file at least in a “cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking”. As I have set out, the Court of Appeal came to the same conclusion in John.

[131] There is good reason for finding that police could look at most of the data on the iPhone, at least in cursory fashion. First, as I have explained, the data that the police could search for, as described in the Warrant, was broad. Second, for the reasons I have set out, using a time parameter filter would not result in police finding all data within the scope of the Warrant. Furthermore, things stored on a computer are not always what they seem to be based on their location or description. There is the obvious possibility that a file may be innocently misnamed and in fact may not be what the name suggests. For example, a photograph can be found in a document. Although not argued in this case, there is also the fact that, as noted in Vu at para. 57, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for.

[132] Given my finding that the categories DC Lam opened were within the terms of the Warrant, I find he did not exceed those terms by looking at the contents of the data in those categories even though they were outside the time period first established for the search of the data and would have contained data not relevant to the offences Mr. Shen was charged with at that time. Although DC Lam was not asked, there is no evidence that he did anything more than look at the data on the iPhone in a cursory fashion to determine if it was evidence of the offences the police were investigating. Although I appreciate that this resulted in DC Lam looking at most of the content of the iPhone, given the evidence of DC Morden and the principles I have set out from Jones, John and Vu, there was no way for DC Lam to limit his search in any way to avoid this if he wanted to be sure that he did not miss any data that was within the scope of the Warrant. Given that DC Lam conducted two searches with filters, I find that he was making a good faith effort to search only for evidence specified in the Warrant related to the offences. Each time DC Lam found a document, image or video that he believed was related to the offence he first double checked that by looking at the SOCO photos before extracting and copying that document, image or video to provide to the Crown. There is absolutely no evidence that DC Lam was looking for any evidence of other criminal conduct. The applicant has not persuaded me that DC Lam’s review of the data on the iPhone amounted to an indiscriminate scouring of that device.

[133] For these reasons, I am not persuaded that the applicant has demonstrated that there was a breach of his s. 8 Charter rights with respect to the search of the electronic devices and in particular the iPhone. There was therefore no basis to exclude the Hotel Video from the evidence at trial. The s. 8 application is dismissed. This finding also necessarily results in a finding that there was no breach of Mr. Shen’s s. 7 Charter rights.

[134] There is one more matter I must address with respect to this Charter application. I have explained my reasons for concluding that the fact Mr. Shen’s trial counsel did not have a copy of the ITO was due to his lack of due diligence. I have proceeded to consider what Charter remedies Mr. Shen has, based on the arguments of both the defence and the Crown that this lack of due diligence and resulted in Mr. Shen’s inability to bring a s. 8 Charter application. I do not want these reasons to be taken as accepting that Mr. Shen’s trial counsel was unable to bring a s. 8 Charter application because he did not have a copy of the ITO. As is readily apparent now, as I have set out, the focus of the s. 8 Charter argument before me was that the search of the iPhone was not done in accordance with the terms of the Warrant, a document defence trial counsel had in his possession well in advance of the trial before me. In my view, the fact the ITO was not in his possession did not prevent defence trial counsel from bringing a s. 8 Charter application at trial. However, that was not argued before me, and so I have proceeded on the basis that he was unable to do so when considering the remedies available now to Mr. Shen.

[135] If this application had been argued at trial, I would likely have gone on in any event to conduct an analysis pursuant to s. 24(2) of the Charter and considered the Hotel Video evidence according to the Grant factors in the event an appellate court finds that I erred in coming to this conclusion. I see no reason for doing so in this case.

[136] I have, however, decided that I should consider how the Hotel Video in fact impacted my decision to convict Mr. Shen in the event an appellate court finds that I erred in deciding that the Hotel Video would not have been excluded from evidence at trial if a s. 8 Charter application had been brought. It is clear from the law I have considered with respect to whether Mr. Shen’s s. 7 Charter rights have been breached that what remedy he is entitled to, given the lack of due diligence, depends on the materiality of the Hotel Video. The same is true with respect to whether his conviction should be reopened to consider the admissibility of the Hotel Video.

[137] I do not wish the fact that I proceeded in this case as if there had been a s. 7 Charter breach and decided the s. 8 Charter application on its merits to be taken as agreeing with the position of counsel that the Hotel Video was, as Mr. Thorning put it, vital to my decision to convict Mr. Shen of sexual assault as that is far from correct based on my Reasons for Judgment. To my surprise, Mr. DeSantis agreed with Mr. Thorning that if I find that the Hotel Video ought to have been excluded from the evidence at trial that it had sufficient significance to my determination of the complainant’s credibility that I would have no choice but to order a new trial. I disagree.

The Materiality of the Hotel Video to the Decision to Convict Mr. Shen

[138] Given that the degree of materiality of the Hotel Video is important, in the event I have erred in concluding that it was admissible evidence at trial, given my findings of the lack of due diligence of defence trial counsel, I will address this issue. As A.C.J.O. Fairburn stated in R.G., a robust application of the due diligence criterion is essential. It is for that purpose, therefore, that I will set out my view as to the materiality of the Hotel Video in convicting Mr. Shen and I will do so only by considering what I stated in my Reasons for Judgement, which were 41 pages – 191 paragraphs in length.

[139] The applicant submits that it “cannot be gainsaid that the [Hotel] Video played a vital role” in the conviction of Mr. Shen and that its contents are “central” to that decision. I will explain why that is clearly not the case but first I will deal with a secondary argument made by Mr. Thorning. He argued that Mr. Shen’s first trial resulted in a hung jury because the jury did not have the Hotel Video evidence. In my opinion, that submission is totally without merit as there could be any number of reasons why that trial resulted in a hung jury. It certainly does not mean that if the Hotel Video was not tendered in the trial that I conducted, that Mr. Shen would have been acquitted. My Reasons make that abundantly clear.

[140] Paragraphs six through 129 of my Reasons for Judgment set out my summary of the evidence and preliminary findings of fact. My first reference to a video found on the iPhone was at paras. 11 and 12 of my Reasons for Judgment, which I described as a video of three young males. I note that Mr. Thorning did not argue that the extraction of this video was a breach of the Warrant. It is a good example of how a video can be evidence of “use, ownership and access” as I relied on this video in part to determine that the iPhone belonged to Mr. Shen and that this video was taken at the time of the offence and that it was found on the iPhone.

[141] At para. 12, I stated the following:

I find based on this content on the iPhone and the fact that this iPhone was found in the Rolls Royce being driven on more than one occasion by Mr. Shen, that this iPhone belonged to Mr. Shen. That fact was never disputed during the trial. This finding is important as a second lengthy video identified by DC Lan that was on this iPhone is very important to the issues I must determine. Mr. DeSantis alleges that the complainant was sexually assaulted by Mr. Shen while she was unconscious, and that the first part of the sexual assault is recorded on this video. This video is five minutes and 27 seconds long. For virtually all of this video, all that can see is a black screen, with only audio, but in the final 1 0 seconds, a naked woman who appears to be sleeping can be seen lying on the bed. The complainant testified that this woman was her. This portion of the video also clearly shows clothing on the floor that appears to be what the woman was wearing, which matches what the complainant was wearing at Rebel Nightclub. For these reasons as well as the evidence from the WP Video, I have no difficulty in finding that this woman was the complainant. [Emphasis added]

[142] Although the applicant relies heavily on the statement that the Hotel Video is “very important to the issues I must determine,” the context of this statement is important because I made that statement in connection with the assertion by Mr. DeSantis that the Hotel Video recorded the first part of a sexual assault by Mr. Shen while the complainant was unconscious.

[143] At para. 14 of my Reasons, I explain why I found that the Hotel Video was taken on Mr. Shen's iPhone when he was alone with the complainant at the Westin in Room 274. I did not need the contents of the Hotel Video to come to that conclusion as that was obvious from the video from inside the Westin Prince hotel, that I referred to as the WP videos in my reasons at para. 70 where I found that Mr. Shen and the other male whom I referred to as the Unknown Male, brought the complainant to Room 274 by getting her into the elevator and that the Unknown Male then left the hotel on foot.

[144] I did not need the Hotel Video to conclude that the complainant was unconscious when Mr. Shen brought her to Room 274 or that they were alone. Although the exchange between Mr. Shen and the complaint that could be heard on the Hotel Video, that I set out at paras. 76-77 of my Reasons, and what I found Mr. Shen said and the complainant’s responses is consistent with that conclusion. The fact that the complainant lacked capacity and was unconscious was obvious from the videos taken at the Rebel Nightclub of Mr. Shen and the complainant leaving, and more importantly the WP videos of how Mr. Shen and the Unknown Male took her out of the Rolls Royce and carried her to the hotel elevator.

[145] My analysis of the evidence begins at para. 130 of my Reasons and I dealt with the reliability and credibility of the complainant’s evidence starting at para. 135 where I stated:

Mr. Inoue argued that the credibility of the complainant is the central issue on this trial. I agree the complainant's credibility is important but as I will come to, there is video and other evidence that corroborates a lot of her evidence. [Emphasis added]

[146] I then went on to consider the complainant’s demeanour while she testified and some general attacks on her credibility made by Mr. Inoue and found at para. 152:

Although I therefore do not find these various issues raised by the Defence to impact adversely on the complainant’s credibility, I must also assess the reliability of her evidence as like Ms. B…, she was consuming alcohol. I will be mindful of that as I assess the evidence to determine whether or not the Crown has proven the charge beyond a reasonable doubt.

[147] Having reviewed the evidence and made preliminary findings of fact and considered some preliminary issues with respect to the credibility and reliability of the complainant’s evidence, starting at para. 158 of my Reasons I considered the first alleged sexual assault that was alleged to have occurred while the complainant lacked capacity to consent to sexual activity including intercourse.

[148] I first dealt with the complainant’s allegation that Mr. Shen kissed her without her consent while they were at the Rebel Nightclub. There was no issue that he kissed her but the defence alleged it was consensual. I gave reasons for why I accepted her evidence on this point, relying on her evidence and the videos taken inside and outside the Rebel Nightclub that I referred to as the RN videos. I did not rely on the Hotel Video.

[149] I went on to consider the complainant’s state of intoxication and at para. 166 found as follows:

Mr. Inoue submitted that the complainant was only sleepy or tired because it was 5:00 a.m. and that she seems conscious because her legs were moving, and she was walking with some assistance. For the reasons stated, that is definitely not what can be seen on the RN and WP videos. Furthermore, Mr. Inoue never suggested to the complainant that she was tired, although I expect if he had, she would have said she did not recall. If the complainant was sleeping when Mr. Shen and the Unknown Man brought her into the Westin, it was obviously a deep sleep which was equivalent to her being unconscious for the purpose of incapacity to consent to sexual activity. I find based on what can be observed of the complainant during the WP Videos, she was unconscious. She was clearly not conscious or in any way aware of where she was, who she was with, or what was happening to her. [Emphasis added]

[150] Mr. Thorning relies upon paragraph 166, where I state:

Having driven around for one-and one-half hours looking for a hotel room Mr. Shen brought the unconscious complainant up to Room 274 at the Westin with the help of the Unknown Man. Within minutes of the Unknown Man leaving the room, Mr. Shen began to kiss the complainant while he removed all of her clothing. It is obvious from listening to the Hotel Video that Mr. Shen recorded, that the complainant was not awake and conscious as all that can be heard from her are simply sounds, moans, and groans. I have found that based on what can be heard on the Hotel Video and seen at the end, that Mr. Shen not only removed all of the complainant's clothing, but he was also kissing her, and I find that this occurred while she was unconscious and lacked capacity to consent to any sexual activity, That is enough for a conviction of sexual assault, but I must consider whether or not the Crown has proven that Mr. Shen engaged in sexual intercourse with the complainant while she was unconscious as alleged. [Emphasis added]

[151] The applicant argues that the Hotel Video was important because I found in this paragraph that: “the video itself evidenced a sexual assault” and that without anything more, the applicant would have been convicted. It is important to note that although I relied on the Hotel Video to find that Mr. Shen removed the complainant’s clothing while she was unconscious and lacked capacity to consent to any sexual activity and that the removal of her clothing and kissing her was enough for a conviction of sexual assault, I was clear that I needed to go on to determine whether or not the Crown had proven that Mr. Shen engaged in sexual intercourse with the complainant while she was unconscious as alleged. I did not find that the sexual intercourse the complainant alleged that she had little memory of was recorded on the Hotel Video.

[152] Counsel suggested that the Hotel Video was important to my finding the complainant to be a credible witness and “assisted the verdict by corroborating the credibility and reliability of the complainant” but as I have already stated, I did not rely on it in finding that before they got to the hotel, Mr. Shen had kissed her without her consent, which also would constitute a sexual assault on its own. Furthermore, I did not refer to the Hotel Video as corroborating the complainant’s evidence of what she recalled had happened while she was incapacitated. In fact, it was clear from her evidence that she was remembering something that happened after the Hotel Video was recorded. At para. 75 of my Reasons for Judgment, I set out what the complainant remembered while she was initially in the hotel room as follows:

The next memory the complainant has is that she felt a sharp pain in her vaginal area that woke her up for a second and she remembers that she was trying to push someone from her body that was causing her pain. When she was trying to wake up, she opened her eyes and saw light coming from the ceiling. The room was half lit but it was not a bright light as in the courtroom. The complainant testified that she could see someone on top of her and she was lying down on her back. She saw Mr. Shen's face staring at her, right on top of her. She had her hands flat out down by her stomach area trying to push him away. The complainant did not know where she was. She did not know if anyone else was in the room. She did not know if she was wearing clothing or where she was. She didn't see anything else. The complainant testified that she does not recall what happened after that until she woke up again. [Emphasis added]

[153] At paras. 168-169, I deal with this evidence of the complainant about her two memories as follows:

I have set out the complainant's evidence of the two memories that she has from the time she had the vodka drink in Rebel Nightclub that Mr. Shen gave to her, to waking up on the morning of September 15, 2019. The first, vodka being poured down her mouth, is important because it would explain the unconscious condition of the complainant at the Westin that I have just reviewed. The complainant was clearly far more incapacitated by the time they arrived at the Westin.

The second memory is the complainant waking up on her back briefly to a sharp pain in her vaginal area, seeing Mr. Shen's face right on top, staring at her, and using her hands to push him away. The complainant testified that when she woke up later in the morning, she was wet in her vaginal area, and we know Mr. Shen' s semen was found inside her vagina, although I appreciate that this could also have occurred during the second sexual assault alleged by the complainant. The only explanation for this memory is that Mr. Shen was having vaginal intercourse with the complainant while she was unconscious. [Emphasis added]

[154] I then went on to consider the reliability of this evidence about the two memories. I note that I did not refer to the Hotel Video to find that the complainant was unconscious at the Westin. I stated at para. 170: “I have no difficulty in finding that the complainant has told the truth as to what she remembers”. I then went on to deal with the defence argument that the complainant testified that she was not incapacitated by alcohol, that she believes she was drugged and that the Crown had not proved that she was drugged. At paras. 172-173, I found that it was likely that the complainant was intoxicated by alcohol and that her belief she was drugged was not unreasonable and did not impact my assessment of her credibility.

[155] At para. 174 of my Reasons, I considered the fact that the complainant’s lack of recall on its own was not enough to establish incapacity as that could be consistent with some level of intoxication short of incapacity. I went on to find:

In this case however, I have the RN and WP Videos and the Hotel Video. By the time she got to the Westin, the complainant was obviously unconscious which goes well beyond just a lack of memory or simply being intoxicated. She was unconscious and incapable of consenting to any sexual activity. Based on what can be heard on the Hotel Video and seen at the end, minutes after getting the complainant into Room 274, her condition was unchanged.

[156] Although I appreciate that I referred to the Hotel Video at this point, it was in the context of having found that the complainant was unconscious when she arrived at the hotel and my finding that the Hotel Video was taken within minutes of their arrival in the hotel room and the Unknown Male leaving. I made no reference to the Hotel Video in paras. 175 to 177, where I set out some reasons for why I accepted the complainant’s evidence with respect to the first alleged sexual assault.

[157] At para. 178 of my Reasons, I conclude my analysis of the first alleged sexual assault as follows:

Based on this evidence which I accept, I am satisfied beyond a reasonable doubt that at that time the complainant woke up briefly to pain in her vaginal area and that Mr. Shen was engaging in vaginal intercourse with her at a time when she was unconscious and had no capacity to consent. On the evidence, there no other reasonable explanation for the memory or flashback the complainant testified to. My conclusion is also consistent with what Mr. Shen clearly intended when he took the complainant to the Rolls Royce in the intoxicated state she was clearly in. Instead of taking her home or asking Ms. B… to help her get home, Mr. Shen and the Unknown Man drove around for an hour and a half looking for a hotel room and once Mr. Shen checked into the Westin, they dragged the complainant to Room 274 where Mr. Shen immediately stripped the complainant naked while kissing her. His intentions were clear. The only reasonable inference from this evidence is that Mr. Shen took these steps so he could have intercourse with the complainant. I also find given her state, that Mr. Shen knew the complainant was unconscious and that she did not have an operating mind, and thus was unaware of what she was doing and had no capacity to consent to any form of sexual activity with him.

[158] The finding set out in para. 178 that Mr. Shen “immediately stripped the complainant naked while kissing her” is of course a reference to the Hotel Video. However, in the context of all the other evidence that I relied upon as set in my Reasons, I am confident that I would have made the same finding and accepted the complainant’s evidence that Mr. Shen forced her to have sexual intercourse while she was incapacitated even if the Hotel Video had not been entered into evidence at trial. The Hotel Video did not corroborate the complainant’s evidence in any way, as she had no recall of this part of the time she was with Mr. Shen, and I found that the forced sexual intercourse occurred later.

[159] The next issue to consider is even if I had not found that Mr. Shen committed the first sexual assault, would I have found that he committed what I found to be the second sexual assault once the complainant was awake? My analysis of the evidence relevant to that assault is set out starting at para. 179 of my Reasons. Mr. Inoue did not argue that the sexual intercourse did not occur, as the DNA evidence confirmed that Mr. Shen’s semen was found inside the complainant’s vagina. His argument was that the complainant consented to sexual intercourse once she was awake and had capacity to do so.

[160] At paras. 187-188 of my Reasons for Judgment I stated:

… given all the evidence that I do accept, I find that the complainant would not have consented to sexual intercourse with Mr. Shen. We also know that she woke up and did not know where she was or how she got there. Her last memory was being in Rebel Nightclub the night before and she was expected to go home to her boyfriend, according to the evidence of Mr. X... Instead, she woke up naked and in bed with a man who was practically a stranger to her and whom she did not particularly like. I accept her evidence that when she was conscious, she knew she wanted no physical contact with Mr. Shen.

… I have already explained why I disagree with the suggestion that the complainant was kissing Mr. Shen back. There is no video evidence of them dancing, but based on the dancing I do see, when the complainant was dancing with James or Ms. B… they were simply moving to the music, separate and apart, at the edge of the booth. There is certainly no evidence that the complainant and Mr. Shen were dancing while embracing each other. I appreciate that as a matter of law, I must be careful in the area of alleged sexual assaults to apply what I consider to be a matter of common sense and experience, but in my view, to suggest the complainant consented to intercourse with Mr. Shen in these circumstances defies common sense, reason, and human experience. [Emphasis added]

[161] I concluded my reasons as follows at para. 189:

The question that remains is whether or not Mr. Shen did forcibly engage in sexual intercourse with the complainant a second time, this time without her consent. I accept the complainant's evidence that this occurred and considering all the evidence, I find that the Crown has proven beyond a reasonable doubt that the Mr. Shen forcibly engaged in vaginal intercourse with the complainant once she was awake without her consent. I appreciate the complainant's evidence that she felt disgusted and felt that she could not do anything, but considering s. 273.1(1) of the Criminal Code, I find that she certainly did not express by words or her conduct that she was consenting to sexual intercourse with Mr. Shen. I also find that it would have been clear to Mr. Shen, given all of the circumstances, that the complainant was not consenting, and there is no evidence of any reasonable steps by Mr. Shen to determine if she was consenting. For these reasons, I am satisfied beyond a reasonable doubt that Mr. Shen engaged in sexual intercourse with the complainant a second time without her consent.

[162] Mr. Thorning submitted that in para. 187 of my Reasons, I stated that I relied on “all the evidence” that I accepted, which includes the Hotel Video and that it is too late for me to parse my words now. In my view, my Reasons for Judgment must be considered as a whole when considering whether at this point, I was even thinking of the Hotel Video. Given the rest of para. 187, I was considering the evidence that confirmed that the complainant would not have consented to engaging in sexual intercourse with Mr. Shen once she woke up. The Hotel Video did not assist the Crown in any way on the issue of whether the complainant consented to sexual intercourse with Mr. Shen.

[163] I determined on other evidence that is not in dispute that she was unconscious when she was brought to the hotel and the Hotel Video was taken within minutes of that. Although the Hotel Video did demonstrate that the complainant was unresponsive when Mr. Shen was undressing and kissing her, it did not assist in my concluding that the complainant did not have capacity to consent to sexual activity with Mr. Shen. The fact that the complainant was not responsive would not have been enough as that could have been due to intoxication falling short of incapacity. It was the video evidence before the Hotel Video was taken and, in particular, the WP videos, that made it clear the complainant was unconscious when Mr. Shen and the Unknown Male brought her up to the hotel room and the Unknown Male immediately left. It was this other evidence that corroborated the complainant’s evidence of lack of memory save for the two memories she did have. Although I appreciate that it will likely be for others to decide, as I have already said, the Hotel Video did not corroborate the complainant’s evidence in any way, as she had no recall of this part of the time she was with Mr. Shen.

[164] The Hotel Video did establish, based on what I could hear, that once Mr. Shen was alone with the complainant in the hotel room, he immediately undressed her and was kissing her. To that extent, it did corroborate his intention to engage in sexual activity with the complainant although that does not mean he intended to engage in sexual intercourse. As I explained in my Reasons, given all the other evidence that did not depend on the credibility of the complainant, Mr. Shen’s intention in taking the complainant to the hotel, given her state of unconsciousness, was obvious. As I said in my Reasons, what Mr. Shen intended when he took the complainant to the Rolls Royce in the intoxicated state she was obviously in, with the help of the Unknown Man, was clear. Instead of taking her home or asking her friend to help her get home, Mr. Shen and the Unknown Man drove around for an hour and a half looking for a hotel room. Once Mr. Shen checked into the Westin and he and the Unknown Male dragged the complainant to the hotel room so that he could be alone with her, his intentions to engage in sexual intercourse with her, which was corroborated by the undisputed DNA evidence, were obvious.

Disposition

[165] For these reasons, the application for an order declaring a mistrial is dismissed.

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SPIES J.

Date: November 27, 2023

Edited Reasons Released: December 11,2023