CITATION: R. v. Dadabhai #3, 2025 ONSC 2589
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABUBAKAR YUSUF DADABHAI
Defendant
D. Spence, for the Crown
J. Greenspan, B. Greenshields, and Z. Kay, for the Defendant
HEARD: March 21, 2025
molloy j.:
REASONS FOR JUDGMENT
(Mistrial Application)
A. INTRODUCTION
1Abubakar Dadabhai was charged with having sexually assaulted his 12-year-old cousin (A.T.) in April 1991. She became pregnant and had an abortion on May 28, 1991. Although the Children’s Aid Society (“CAS”) and police were notified, no charges were laid at that time. A.T. was sent off to India to attend a Muslim religious school and to live with relatives she had never met. A.T.’s father died in October 2022. Following his death, A.T. reported to the police that she had been sexually assaulted by Mr. Dadabhai in 1991 and that nothing had been done about it. The current charge of sexual assault was laid in the fall of 2022, alleging sexual assault between April 2 and 9, 1991, approximately 31 years after the alleged assault.
2Mr. Dadabhai elected to be tried by a judge sitting alone and the trial proceeded before me, commencing on October 9, 2024. Some of the issues were dealt with by way of an Agreed Statement of Facts. I heard viva voce testimony from the complainant, her mother, and the accused. On October 15, 2024, I heard the submissions of counsel and reserved my decision to December 4, 2024.
3At the request of the defence, I did not release my decision on December 4, 2024, to enable them to file a lost evidence application. That application would have been heard on February 3, 2025, but on that date, I granted a further adjournment so that the defence could bring this application for a mistrial. Subsequently, the defence brought an application requesting that I recuse myself from hearing the two pending applications on the basis of a reasonable apprehension of bias. I heard the recusal motion first, and dismissed it on March 21, 2025. My reasons for that decision are reported separately at R. v. Dadabhai #2, 2025 ONSC 2588. I then heard argument on the lost evidence application. I reserved my decision on that application. Subsequently, I decided to dismiss that application as well, and advised the parties of that ruling in court on May 1, 2025. Those reasons are also reported separately at R. v. Dadabhai #4, 2025 ONSC 2590.
4The accused in the trial before me is Abubakar Dadabhai. He has three brothers. The same complainant in the case before me (A.T.) also alleged that she had been sexually assaulted by those three brothers at various times, which assaults were not alleged to include vaginal intercourse. Those three accused were tried together on those charges before my colleague, Dineen J., in January 2025. Abubakar Dadabhai was not a party to that proceeding, but the allegation that he assaulted and impregnated A.T. was the subject of some evidence in that trial. A.T. testified in that trial on January 6, 7, and 8, 2025.
5The defence submits that there are material differences between what A.T. said in her evidence in the January 2025 trial and what she said in her testimony before me in October 2024. The defence further submits that these differences have impaired the ability of the accused to make full answer and defence and that the only adequate remedy is a mistrial.
6For the reasons that follow, this application is dismissed. The essence of the complainant’s evidence in January 2025 is the same as it was in October 2024 in the trial before me. Any minor differences are insignificant and would have had no impact on my findings of A.T.’s credibility and reliability as a witness before me. Further, there is nothing about the complainant’s testimony at the January 2025 trial that renders the trial unfair to the accused.
B. CASE AUTHORITY RELIED UPON BY THE DEFENCE
7As pointed out by the Crown, none of the case law cited by the defence as authority for the proposition that they are entitled to a mistrial in these circumstances deals with circumstances similar to the case before me. The defence relies primarily on the Supreme Court of Canada decisions in R. v. Dixon and R. v. Skinner, both of which relate to appeals from convictions at trial based on the failure of the Crown to make disclosure of material to which the defence was entitled.1 At the time of this mistrial application, there had been no conviction in this case, the trial was not over, and the Crown had not breached any duty of disclosure.
8The defence also relies upon R. v. Jiang.2 This is also a case in which the Crown breached its duty of disclosure, only producing relevant medical records partway through the cross-examination of the accused on an issue to which those records were relevant. The trial judge dismissed a mistrial application, although she held that there had been a serious breach of the accused’s s. 7 Charter rights. The accused was convicted by a jury, which was overturned on appeal based on the Court of Appeal’s finding that it was reasonably possible that the defence would have been conducted differently had defence counsel had the undisclosed medical records in advance.
9In addition, the defence referred in their factum to R. v. Barra, R. v. T. (L.A.), R. v. P. (M.B.), and R. v. F.S.M., some of which were cited with respect to what the appropriate remedy would be, but all of which also relate to Crown breaches of the duty of disclosure.3
10Based on these authorities, the defence argues that upon demonstrating “a reasonable possibility” that the failure to disclose affected either the outcome of the trial or the overall fairness of the trial process, the proper remedy is a mistrial.
11The extent of the Crown’s duty of disclosure in this context was not directly addressed. The Crown takes the position that there was no difference between the complainant’s evidence in January 2025 and her testimony in the trial before me. If I accept that position, there was nothing to disclose. It is also unclear what the disclosure responsibilities would be for the Crown when the evidence in one trial is closed and a witness is testifying in a different trial. In this case, Mr. Spence acted for the Crown in both trials, and therefore would have direct knowledge of what the complainant said in both. However, I do not want to be taken as ruling that there is an ongoing duty of disclosure for the Crown to monitor what witnesses say in different proceedings, to check for inconsistencies, and then report to the defence if there are any, including for trials that are already finished.
12It seems to me that the situation before me is more akin to an application for a mistrial based on newly acquired evidence not available to the defence at the time of trial. Even if I had already convicted Mr. Dadabhai, I would have jurisdiction to consider fresh evidence, providing that I had not yet sentenced him. In those situations, however, the more typical remedy would be to hear further evidence, unless the damage done to the defence could not be remedied in that manner. The usual test established in R. v. Palmer would be applicable, whether the remedy was to reopen the trial and hear further evidence, or declare a mistrial.4 Before reopening a case based on fresh evidence, the trial judge must consider: (1) whether the proposed evidence is relevant to a material issue in the case; (2) the potential prejudice to the other party if the case was reopened; and (3) the effect of reopening on the orderly and expeditious conduct of the trial.5
13In R. v. Acevedo, Strathy J. (as he then was) held that in these situations, in addition to the factors listed in R. v. Hayward, it is also relevant to consider the probative value of the evidence and the reason for the failure to introduce the evidence in the normal course.6 I agree that these are appropriate factors to consider. In my view, they mirror the Palmer factors, which are summarized in R. v. Kowall as follows:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases...;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief;
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
14Alternatively, rather than considering this as an application to reopen based on fresh evidence, I believe I would have jurisdiction to provide the relief sought as an exercise of my inherent jurisdiction to control the trial process and to protect the fair trial interests of the accused. Clearly, I would have jurisdiction to do that, provided I am not functus officio, which I was not at the time I heard this application.7
15These alternatives were not raised by the Crown, nor were they addressed in the course of argument. I raise them here, not for the purpose of applying those principles in this decision instead of the case authority cited by the defence, but rather because I do not want to be taken as endorsing which line of authority is the most appropriate. It does not matter to the result which authorities apply. There is no difficulty with the first Palmer criterion that the evidence could not have been obtained earlier. Further, an inconsistency would be relevant to credibility which is a decisive issue in the trial. However, where the defence application fails is at the final criterion of the Palmer test, because it could not reasonably have affected the result at trial. Similarly, applying the test in Hayward, I would not be concerned about the potential prejudice to the Crown, nor the expeditious completion of the trial. Again, the problem is the relevance of the proposed fresh evidence.
16In the result, I will simply apply the test proposed by the defence, which I believe is the least onerous hurdle. The question I will determine is whether there is a “reasonable possibility” that the evidence given by the complainant at the 2025 trial, if it had been known to the defence at the time of this trial, could have affected the outcome of the trial or the overall fairness of the trial process. As I have said, while I do not necessarily agree that this is the proper test, the defence has failed to meet that low bar.
C. THE DIFFERENCES IN THE EVIDENCE
(i) The Position of the Parties
17The defence refers to three categories in which the complainant’s evidence in January 2025 is said to be materially different from her testimony before me: (1) her recollection of the 1991 investigation; (2) her denials of sexual activity prior to the 1991 police statement; and (3) what she told the police in 1991. I will first address the first and third categories, and then address the second category later in these reasons.
18The Crown submits that there is no discrepancy in what the complainant said in the two trials. She was consistent throughout.
(ii) The Alleged Differences in the Evidence About the Investigation
19With respect to the testimony at the trial before me on Category 1 (memory of the investigation), the defence asserts that the complainant said that she only had a “vague memory” of speaking to the CAS and the police in 1991. That is a correct characterization of her evidence before me. She did not say anything different at the trial in January 2025. She was asked if she gave a statement to the CAS and the police and she agreed that she had. There was no examination with respect to how detailed her memory was of those statements, and therefore no conflict.
20On Category 3 (the 1991 police statement), the defence relies on three excerpts from the complainant’s testimony before me.8 The defence asserts that the complainant maintained that she had no memory of what she told the police in 1991, apart from what she read in the CAS notes (which she obtained in 2022) and her “vague memories” of her father and his brothers coaching her on what she should and should not say to the police. That is a fair summary of her evidence.
21The defence relies on two excerpts of the complainant’s evidence from the January 2025 trial as being contradictory to what she said in the trial before me. In addition, the defence relies on para. 4 of the Agreed Statement of Facts, which was marked as Exhibit 1 in the 2025 trial. It stated:
- [A.T.] was instructed to lie to investigating authorities, telling them that the sexual intercourse with Abubakar was “consensual” and that there was no force or coercion involved.
22The Crown provided a more comprehensive version of the complainant’s evidence given at the two trials with respect to the 1991 investigation and 1991 police statement and helpfully set them out in side-by-side charts. I found that format to be helpful. A combined version of all of the relevant testimony relied on by the Crown and defence is set out below, similar in format to the appendix prepared by the Crown, but with some additions.
23On the right-hand side of the chart are the statements made by A.T. at the January 2025 trial about this issue. The first two entries in that column are the two excerpts which are alleged by the defence to be different from what she said at the trial before me. The remaining entries in that column are additional excerpts from the January 2025 trial. On the left-hand side are statements made by A.T. at the trial before me. I have added underlining to highlight the key aspects of her evidence.
Abubakar Dadabhai Trial (2024)
Dadabhai Brothers’ Trial (2025)
Cross-examination by Ms. Greenspan, October 10, 2024, at pp. 35-37, lines 18-32, 1-2, and 2-13.
J. GREENSPAN: Okay. And you told them that you had had sex on a couple of occasions and described a relationship as following, falling in love. Right?
A.T.: Not my [indiscernible] memory.
Q. I am sorry. Pardon me?
A. Not my own memory.
Q. Okay. But you at least, looking at the notes, you accept that that is what you said in 1991?
A. That’s what’s documented in the notes.
Q. Do you accept that that is what you said to CAS and the police, is that you had had sex on a couple of occasions and described your relationship as falling in love?
A. I do not have a memory of that.
Q. Okay. Again, I just, apologize to, to repeat that. Do you accept without having a memory that that is something that you could have said?
A. No.
Q. And you said to the police:
[As read] The CAS, um, from what I recall, did do an investigation. I believe I did make a statement that was a, a lie, um.
OFFICER: To the CAS worker?
A.T.: To the CAS worker. My dad and his side of the family made sure that what I reported to them was that it was consensual ’cause they didn’t want to press charges.
Q. You remember saying that to the police?
A. I do.
- Examination-in-chief by Mr. Spence, January 6, 2025, at p. 23, lines 11-21.
D. SPENCE: And did you speak to anyone from the Children’s Aid Society at the time?
A.T.: I did.
Q. And what about the Toronto Police Service?
A. I did.
Q. And did your father tell you to say anything to these people?
A. My father and his brothers basically coached me on trying to control the narrative, that it was consensual, that it was – that we were in a relationship, that, you know, no harm was really done to me.
Cross-examination, October 10, 2024, at p. 37, lines 14-21.
Q. Okay. And you accept that that’s different from what you had said two weeks before to the police on November 5, which is that you had no memory of that. Right?
A. When I went to, when I made a, when I made a statement to the police on November 19th, that was based on mostly what I was reading in the CAS document and the vague memories that I had of my father and his brothers coaching me on what I should and what I should not say to the CAS people.
- Cross-examination by Mr. Zbarsky, Jan. 8, 2025, at pp. 15-16, lines 15-
D. ZBARSKY: Could you explain the circumstances in which you were told to lie and make up a story?
A.T.: Just pretty much coached on trying to make sure that I say that it was consensual so that Abubakar doesn’t get in trouble.
Q. When did this conver... - approximately, when did this conversation, or conversations, take place?
A. It would have - I don’t know if it was after they found out I was pregnant or after I had the abortion, I can’t put a time on it.
Q. Could you describe the circumstances in which who approached you and talked to you about what you should say about what had happened?
A. I don’t remember that.
Q. So, what you’re really saying is, “All I can tell the court is at some point my father...” - was it your father who told you to lie?
A. And his brothers, yeah.
Q. And his brothers. Was there a - did you sit down with all of them, or was this done on separate occasions?
A. I can’t remember that.
Q. So, you have no recollection of the circumstances in which you say you were told to lie about it being consensual?
THE COURT: Just to be clear, it is an agreed fact that this happened.
D. ZBARSKY: Yeah - no, no, but what I’m –
THE COURT: I understand where –
D. ZBARSKY: - curious about is –
THE COURT: Just, yeah, the way that question was phrased.
D. ZBARSKY: Okay. Sorry.
THE COURT: Go ahead. Sorry.
A. I don’t know if someone was drinking a coffee at that time. I don’t know what room I was in. I don’t know what address I was in. I don’t know if it was day or if it was night. But I do remember the conversations that I had.
Examination-in-chief by Mr. Spence, October 9, 2024, p. 39-40, lines 32, 1-3.
A. [F]or far too long everyone else controlled my story, everyone else controlled my narrative, but I didn't. And I wanted to take the power back. I wanna tell my story. It's my truth, not anybody else's. It's my truth.
Cross-examination, October 10, 2024, at p. 38, lines 10-21.
Q. But at least just to get to that, but it is that you see that was said in the CAS records. What you tell the police on November 19th is whatever that was that you said - at least I guess you accept you said - was a lie as directed by your father. Right?
A. Where it's documented in the CAS record about myself and Abubakar being in a relationship – oh, sorry. That’s, I can’t read his name. So myself being in a consensual relationship and falling in love, I have no memory of that. What I do recall is my dad and his brothers talking to me about what to say and what not to say so that, I mean, the ultimate, I guess, is to, to protect Abubakar.
Examination-in-chief, January 6, 2025, at p. 23, lines 22-30.
A. You know, ultimately the goal was, you know, to protect him, and I guess, I don’t know, I was someone that they can just – I don’t know how else to say it, but like, discard. I – my – my feelings and my trauma was not of importance.
Like, between my dad and his brothers, it wasn’t a shock of, “Oh my God, a crime has been committed here.” It’s, “Oh my God, like, how do we make sure that Abubakar doesn’t go to jail?”
Cross-examination by Mr. Foda, Jan. 7, 2025, at pp. 6-7, lines 25-32, 1-2.
S. FODA: At the time that you became pregnant and the fallout ensued, you knew that what Abubakar did was legally wrong?
A.T.: I didn't know if it was legally wrong.
Q. You were instructed to lie to the authorities?
A. Yes, I was.
Q. What was your understanding as to why you had to lie?
A. To cover it up so he doesn’t get in trouble.
Cross-examination by Mr. Foda, Jan. 7, 2025, at p. 7 lines 17-22.
Q. Yeah. What was your understanding at the time as to why you had to lie?
A. To cover up to protect Abubakar.
Q. From going to jail?
A. From going to – well, yeah, from going to jail and getting in trouble.
Cross-examination, October 10, 2024, at p. 36, lines 18-28.
Q. Okay. And not only did you recall making a statement, but your explanation to the police was that you said that it was a lie. Right?
A. Correct.
Q. And this is at least looking at the CAS notes and then speaking with Mr. Mullabhai, et cetera. Right?
A. Not Mr. Mullabhai.
Q. You claim that you recall telling the police that it was your father and his side of the family that you say made you lie?
A. That is correct.
Cross-examination, October 10, 2024, at p. 39, lines 21-25.
Q. Okay. And then when you come to the police on November 19th, as I’ve just sort of [indiscernible] to you, that your, what you say them is, is things that you told to the CAS in 1991 were a lie. Right?
A. Correct.
Cross-examination by Mr. Nishio, January 7, 2025, at p. 39, lines 29-32.
C. NISHIO: You’re told to lie to them in order to protect, whether it’s Abu, or the family, or both, yo’re told to lie to them to protect someone else?
A.T.: Correct.
Cross-examination, October 10, 2024, at p. 35, lines 3-6.
Q. So bringing it to the, when you were confronted at least with the pregnancy, it could no longer be said that you had not had consensual sex. Right?
A. I did not have consensual sex.
Cross-examination, October 10, 2024, at p. 35, lines 14-17.
Q. Okay. And that is how you described things when you spoke with the CAS and the police in 1991. You recall looking at the CAS sort of, slash, police notes. Right?
A. Correct.
Cross-examination, October 10, 2024, at p. 37, lines 23-29.
Q. So at least when we talk about that, and does that mean that you accept that in 1991 you said to the CAS and the police that you had had sex on a couple of occasions, and that you were falling in love?
A. I did not. I don’t have a memory of telling anyone that I was sexually active or in a consensual relationship with anyone at the age of 12.
(iii) Analysis: Categories 1 and 3 (Memory of the 1991 Investigation and 1991 Statement to the Police)
24There is a good deal of overlap between the defence argument on Category 1 (Recollection of the 1991 Investigation) and Category 3 (the 1991 Police Statement). This was particularly the case in the oral submissions. However, it appears that the main argument of the defence is that in the January 2025 testimony, the complainant testified that her father and brothers coached her to lie to the authorities by telling them that the intercourse with Mr. Dadabhai “was consensual” and that they were “in a relationship.” She further testified that these statements to the authorities were lies. The defence contrasts this to the complainant’s testimony at the trial before me in which she repeatedly said that she had no memory of the specifics of what she told the police in 1991, but that she was coached by her father and his brothers as to what she could and could not say so that Mr. Dadabhai would not get into trouble, and that what she told them about the nature of her relationship with Mr. Dadabhai was a lie.
25At the trial before me, A.T. was cross-examined with respect to various things attributed to her in the CAS notes of that interview, including that the intercourse was consensual and that they were in a relationship. She repeatedly acknowledged that the notes said that, but did not confirm that this was what she said, because she had no actual memory of the specifics of what she said. However, she was completely consistent through her evidence in both trials that what she told the CAS/police was untrue and that she had been instructed by her father and his brothers to say those things to keep Mr. Dadabhai out of trouble. Further, she did not dispute that the CAS notes were accurate, but merely that she had no memory of the specifics and therefore could not confirm it. Indeed, on at least one occasion she did say that she accepted what was in the notes, stating:
Q. But just, now that you've seen the CAS records, do you accept that that's what happened?
A. If that's what's documented in the paper, I can say yes, but I don't have my own memory of that. 9
26The 1991 interview was conducted at the office of the CAS, although police officers were present. It must be borne in mind that the complainant was pregnant at the time and 12 years old. At the time of the trial before me, the complainant was being asked to recall what she said over 33 years earlier when she was a 12-year-old child. She has testified consistently in both trials that she remembers the interview but not specifically what she said, although she does remember that she was instructed by her father and his brothers to lie to the authorities about what happened in order to protect Mr. Dadabhai. In terms of her memory of that investigation, I see nothing inconsistent in her evidence between the two trials.
27In the Agreed Statement of Facts at the January 2025 trial, the parties stipulated that the complainant lied to the authorities in 1991 when she told them that the sexual intercourse with Mr. Dadabhai was “consensual” and “that there was no force or coercion involved.” In her testimony at that trial, she said it was her father and his brothers who instructed her to tell those lies. She also testified that the purpose of these lies was so that Mr. Dadabhai would not get into trouble.
28The tiny difference between the complainant’s evidence in the second trial and the first is her statement in the second trial, consistent with the Agreed Statement of Facts, that she was instructed to lie to the authorities by telling them that it was consensual. The defence points to this as evidence that the complainant lied at the trial before me about what she remembers from 1991. I disagree. The distinction is of no importance at all. In the first trial, the complainant did not maintain that she never said any of these things to the CAS. She merely said that she did not remember. For the most part, she simply could not confirm saying what she cannot remember saying. I do not find this difference to be of any consequence in my assessment of the complainant’s credibility.
29Finally, there was considerable emphasis by the defence in the mistrial application about one point in the complainant’s testimony when she was asked if she could have made the statements attributed to her in the CAS records and she said “No.” The defence argued from this one exchange that this meant the complainant was rejecting the possibility that she ever told the CAS that she “had sex on a couple of occasions” and described being “in a relationship” and “falling in love.” That was not my understanding of the complainant’s evidence at the time of the trial, nor has my original impression changed. The entire exchange needs to be seen in context, which is as follows (from the cross-examination by Ms. Greenspan at trial):
Q. Okay. And that is how you described things when you spoke with the CAS and the police in 1991. You recall looking at the CAS sort of, slash police notes. Right?
A. Correct.
Q. Okay. And you told them that you had had sex on a couple of occasions and described a relationship as following, falling in love. Right?
A. Not my [indiscernible] memory.
Q. I’m sorry. Pardon me?
A. Not my own memory.
Q. Okay, but at least, looking at the notes, you accept that that is what you said in 1991?
A. That’s what’s documented in the notes.
Q. Do you accept that that is what you said to CAS and the police, is that you had had sex on a couple of occasions and described your relationship as falling in love?
A. I do not have a memory of that.
Q. Okay. Again, I just, I apologize to, to repeat that. Do you accept without having a memory that that is something that you could have said?
A. No.
30At the time, I did not take this answer as meaning that the complainant was alleging the CAS records were inaccurate because she never would have said such a thing. Her position throughout the trial was that she could not specifically confirm what was attributed to her in the notes because she had no actual memory of saying that. However, she did confirm that the statements attributed to her about the nature of her relationship with Mr. Dadabhai were untrue and that she recalled her father and his brothers coaching her on what she had to say in order to protect Mr. Dadabhai. I interpreted her answer to that specific question as being consistent with her other evidence, which was that if she did not have a memory of specifically saying something, she could not confirm that she said it. What is important is that she did not deny having said it, and consistently maintained that statements of that nature were untrue. The manner in which the following question was put is ambiguous because of the reference to the lack of memory within it: “Do you accept without having a memory that that is something you could have said?” Defence counsel did not ask any follow up or clarifying questions. For example, the complainant was never asked if it was “impossible” that she would ever have said such things, or whether she specifically denied saying it, as opposed to not having a memory.
31In the trial before me, the complainant repeatedly said that she lied at the instruction of her father and his brothers in order to protect Abubakar Dadabhai. It is abundantly clear from her evidence at both trials and the CAS records (which were filed on this application) that there was never a suggestion that anyone other than Abubakar Dadabhai was the man who impregnated her. Simply as an exercise of logic, there would be only two things a complainant could say to protect an accused from a charge that he had impregnated her: (1) that somebody else was responsible; or (2) that the sex was consensual. The complainant never said the former. The only remaining logical inference is that she said the latter (leaving aside that consent should never have been accepted as a defence for the sexual assault of a 12-year-old child by an adult). The complainant never disputed that this was what she said, but only that she had no memory of the specifics. To me, the logical inference is that she did say those things, and the Agreed Statement of Facts and her testimony at the second trial merely reflects that fact.
32In my original decision, which was eventually marked as Exhibit A at the trial and which I completed prior to A.T.’s testimony in the January 2025 trial, I wrote:
12[The complainant’s] memory of the details is not good. She said she had a vague recollection of the CAS and police involvement but could not remember what she told them. She did remember that her father coached her on what she could and could not say to them.
49A.T. was cross-examined about lies she told at the time of the CAS investigation. In particular, A.T. acknowledges that the CAS records show that: (1) she initially denied having had sex until the pregnancy test came back positive; (2) she said the sex was consensual; and (3) she said she was in love. There is no way to verify if the first statement about never having had sex was ever made. Her mother did not remember asking her that, and A.T. did not remember being asked. It is unclear who, if anyone, did ask, but the CAS records are likely hearsay on that point, as A.T.’s mother was never interviewed. It does not matter if A.T. said that the sex was consensual, or if she thought it was, or if she characterized herself as being “in love.” She was only 12 years old. She testified that her father told her what to say to CAS and she did what she was told. The fact that she may have told these falsehoods to CAS in 1991 is irrelevant to whether the accused is the perpetrator of this offence. It says nothing about her credibility as a mature adult under oath in a court of law.
33To the extent the complainant’s evidence at the January 2025 trial about her memory of the 1991 investigation was different at all from that in the trial before me, it was a mere difference in language used. The substance of her evidence is the same. There is nothing in what she said at the January 2025 trial or in the Agreed Statement of Facts at the January 2025 trial that causes me to change my conclusion that the complainant’s evidence at the trial before me was credible.
34The defence maintains that they have been disadvantaged by not having the complainant admit at the trial before me that she told the CAS the sexual intercourse with Mr. Dadabhai was consensual. I do not see any disadvantage. The complainant has always maintained that these statements to the CAS were untrue. She was confronted with that prior inconsistent statement at trial. She did not adopt the statement as true in either trial. That makes the evidence of the prior statement relevant to her credibility, and I have taken it into account for that purpose, along with her explanation for the inconsistency. There is nothing further the defence could do with that statement. I note as well that, as a question of law, the sexual intercourse that caused A.T.’s pregnancy was by definition not consensual, regardless of what the complainant’s father and uncles thought, or even what the complainant may have thought. She was 12 years old and Mr. Dadabhai was 21. She was not capable of consenting.
35The defence argues that they were “unable to impeach the complainant on her prior statements, because there was no source of evidence to establish the predicate fact of her making the statements.” That is simply not the case. They did impeach her on her prior inconsistent statement, multiple times. The complainant admitted making a statement, although she could not remember the content. She said it was untrue, and she explained why she lied. In other words, she accepted that she made a prior inconsistent statement that was an outright lie about the facts in issue. That is all the defence could ever get from her in cross-examination, given that she did not accept the truth of any inconsistency and adopt it as her evidence at trial. It is not necessary for the defence to prove the content of the prior statement in this situation as the complainant admits it is inconsistent with her evidence at trial and that she lied to the authorities. In that situation, nothing about the actual content of the statement becomes admissible evidence at trial for its truth. I could only take it into account in assessing credibility, which I did. The very limited difference in the second trial changes nothing. At most, it is an acceptance that the CAS notes are accurate, which simply makes sense given the circumstances. Had the complainant admitted at the trial before me that she told the CAS that she had consensual intercourse with Mr. Dadabhai, nothing would be different. It would still be a factor relevant only to credibility. The situation might be different if the complainant had no memory whatsoever about any statement to the CAS/police and did not claim to have lied to the authorities at the behest of her relatives. In that situation, the defence would be unable to cross-examine her on the prior inconsistent statement. However, that is not this situation. The defence had a full opportunity to cross-examine, and did so.
36The detailed handwritten notes of the CAS worker taken at the interview, and an even more detailed CAS report about the matter, were disclosed to the defence at an early stage. The complainant has never rejected the authenticity or accuracy of those notes. The only issue is the extent of her memory about what she did or did not say. I fail to see how this difference could have any impact on the conduct of the defence at trial or in preparation for trial. Mr. Greenshields suggested in argument that if the complainant had admitted to telling the CAS some of the things that are attributed to her in the notes, this would advantage the defence by allowing a “development of evidence” based on an “alternative explanation for the pregnancy.” I assume he meant a possible alternative suspect as it is hard to imagine an alternative explanation for a 12-year-old’s pregnancy. There is nothing in the January 2025 trial to suggest any such “alternative explanation for the pregnancy.” Nor was there anything in the trial before me. For that matter, nor is there anything to that effect in the CAS notes themselves. However, to the extent that an alternative explanation is a possibility, it comes from the notes themselves and not from any inconsistency in the evidence of the complainant, and is therefore irrelevant to this mistrial application in any event. There is no merit to the argument that the 2025 testimony created any unfairness in that regard.
37There is nothing from the January 2025 trial that causes the trial before me to be unfair. It has no impact, one way or the other. In argument, Mr. Greenshields asserted that if A.T. had said at the trial before me that she remembered telling the CAS/police that the sex with Mr. Dadabhai had been consensual, this would have opened up “additional lines of investigation” for the defence. I asked him what lines of investigation that would be, and he refused to provide specifics. I cannot see how it would change anything at all, given that the complainant maintained that any statement she made to that affect was untrue. In my view, it is purely speculative to suggest that any slight difference in A.T.’s statement to that effect would have changed the defence.
(iv) Analysis: There is No Subsequent Testimony on Category 2
38The defence, in their factum, list as the second category “denials of sexual activity prior to 1991 police statement.” This appears to relate to whether, prior to the positive pregnancy test, the complainant denied having had sex. The portions of the complainant’s evidence cited by the defence under this category relate to references in the CAS records to the complainant making these denials and to Ms. Greenspan’s cross-examination of the complainant on that issue. The complainant denied any memory of such discussions, which would appear to have been with her parents, if they happened at all. The complainant’s mother also denied any memory of this.
39I have already dealt with this point in my original decision, as noted above.
40More importantly, for the purposes of this application, not only is there no inconsistent testimony on this issue in the second trial, there is no reference to it whatsoever. This is completely irrelevant to the motion, which is purportedly based on the complainant having given inconsistent evidence in the second trial.
D. CONCLUSIONS
41In my earlier review of the law, I noted the different approaches that could be taken in the legal analysis. In my view, it does not matter what test I apply, as my decision is essentially fact-driven. I do not consider any differences in what the complainant said in January 2025 and in her testimony before me to be of any consequence. I am in the unique position of being able to say that it would not have altered my assessment of the complainant’s reliability and credibility in any way. I believed the complainant’s testimony that she lied to the police and CAS about the nature of the interaction that caused her pregnancy, and I believed her explanation of why she lied. She was 12 years old and traumatized. Her entire life was in chaos. Her parents were in the process of ending their marriage, which she believed to be “her fault.” She had been pulled out of school and was going to be sent away to India, away from the only family she knew, and her friends. Her father was the dominant force in her traditional Muslim family, described by both her and her mother as a tyrant. She was a child, and she did what she was told. Notwithstanding her previous lies about what happened, which she told when she was 12 years old, I accepted the complainant’s evidence at trial about the incident with Mr. Dadabhai as being truthful and reliable. The degree of memory she now has as to the specific content of the lies she told in 1991 would not cause me to change my assessment of her credibility.
42Any slight difference between what the complainant said in January 2025 as compared to what she said in October 2024 is negligible. It had no impact on the outcome of the trial and created no unfairness to the defence. There is no merit to the application. It is dismissed.
MOLLOY J.
Released: June 12, 2025
CITATION: R. v. Dadabhai #3, 2025 ONSC 2589
COURT FILE NO.: CR-23-70000502-0000
DATE: 20250612
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABUBAKAR YUSUF DADABHAI
Defendant
REASONS FOR JUDGMENT
(MISTRIAL APPLICATION)
Molloy J.
Released: June 12, 2025
Footnotes
- R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244; R. v. Skinner, 1998 CanLII 809 (SCC), [1998] 1 S.C.R. 298.
- R. v. Jiang, 2018 ONCA 1081, 51 C.R. (7th) 284.
- R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196; R. v. T. (L.A.) (1993), 1993 CanLII 3382 (ON CA), 14 O.R. (3d) 378 (Ont. C.A.); R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555; and R. v. F.S.M. (1996), 1996 CanLII 4012 (ON CA), 111 C.C.C. (3d) 90 (Ont. C.A.).
- R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 50 C.R. (4th) 271 (Ont. C.A.); R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.); and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.
- Hayward, at pp. 197-198; R. v. S.H., 2019 ONCA 669, 377 C.C.C. (3d) 335, at para. 72.
- R. v. Acevedo, 2013 ONSC 1736.
- Endean v. British Columbia, 2016 SCC 41, [2016] 2 S.C.R. 162, at para. 23, citing I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at p. 51;
- Transcript of Proceedings at Trial, October 10, 2024, at pp. 35-37.
- Transcript of Proceedings at Trial, October 10, 2024, at p. 32, lines 4-5