CITATION: R. v. Dadabhai #4, 2025 ONSC 2590

COURT FILE NO.: CR-23-70000502-0000

DATE: 20250612

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ABUBAKAR YUSUF DADABHAI

Defendant

COUNSEL:

D. Spence, for the Crown

J. Greenspan, B. Greenshields, and Z. Kay, for the Defendant

HEARD: March 21, 2025

molloy j.:

REASONS FOR JUDGMENT

(Lost Evidence Application)

A. BACKGROUND FACTS

1In April 1991, the complainant (A.T.) became pregnant. She was 12 years old. When the complainant’s mother realized her daughter had missed her regular menstrual cycles, she took her to the family doctor. A pregnancy test was done, which came back positive. The doctor reported this to the Children’s Aid Society (“CAS”), as was his duty. A.T. told her parents that the person who impregnated her was her 21-year-old cousin, Abubakar Dadabhai. The family were strict and religiously observant Muslims.

2On May 15, 1991, A.T. was interviewed at the CAS offices by two CAS workers, in the presence of two police officers. Her father and another male friend of the family (Mr. Mullabhai) were also present. At that time, she was still pregnant. However, the police and the CAS were told at that meeting that A.T. would be having an abortion in the week of May 20 and that thereafter she was being sent to a religious school in India for six years. A.T. also told the CAS and police that the man who impregnated her was her first cousin, Abubakar Dadabhai. No charges were laid at that time.

3A.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. Mr. Mullabhai was still alive at the time the charges were laid and he provided a statement to the police at that time, which was disclosed to the defence. However, he died in March 2024, months prior to the commencement of the trial.

4As part of its Stinchcombe disclosure, the Crown provided to the defence the handwritten notes of Barbara Sinclair, the CAS Intake Worker handling the matter, and a typed Closing Summary from the CAS file summarizing the information the CAS had at the time it closed its file. These documents include summaries of the interview meeting with the complainant held at the CAS offices on May 15, 1991. Ms. Sinclair is now deceased. The Closing Summary also bears the name of the Intake Supervisor, Corrie Tuyl, but she has no independent notes and no memory of the matter. The CAS taped the interview session. The police did not obtain a copy of the tape at the time, and the CAS can no longer locate it.

5Two police officers were involved: P.C. Lorne Fisher and P.C. Doug Cossar. P.C. Fisher had no notes and no memory of the 1991 investigation. P.C. Cossar’s notes were retrieved from storage and disclosed to the defence. However, he also has no present memory of the 1991 investigation.

6The abortion was performed on May 28, 1991, at the Toronto General Hospital. The medical records were disclosed to the defence. Those records confirmed that the fetus had a gestational age of approximately seven to eight weeks. The records also included a consent form in which A.T.’s mother consented to “the retention by the hospital (for the purpose of diagnosis) or the disposal in accordance with the accustomed practice, of any material that may be removed during the diagnostic, operative or treatment procedure.” The police did not obtain or preserve any of the tissue from the abortion and did not seek to have any testing done of the fetus for the purpose of determining parentage.

7In August 2024, the Crown brought an application to have the CAS records from 1991 admitted as evidence at trial as business records. This application was opposed by the defence on the basis that they were “records made in the course of an investigation or inquiry” and therefore inadmissible pursuant to s. 30(10)(a)(i) of the Canada Evidence Act.¹ In the face of that objection, the Crown withdrew its application.

8Justice Himel conducted three judicial pre-trials in this case: August 30, 2023; September 16, 2024; and September 20, 2024. The defence did not indicate at any of those pre-trials that it would be bringing a lost evidence application. Indeed, in her memo following the September 16, 2024 pre-trial, Himel J. wrote, “Defence counsel has advised that the defence is not bringing a s. 7 lost evidence application.” At the pre-trial, defence counsel raised the possibility of requesting an adjournment of the trial, and Himel J. directed that such a request should be brought immediately after the next judicial pre-trial scheduled for September 20, 2024.

9In December 2022, the police had contacted the hospital to see if they still had any of the tissue from the procedure. On October 1, 2024, the Crown disclosed to the defence that the Toronto General Hospital advised that they had updated their health information system in 2021 and that all materials and records prior to 2003 were destroyed. Therefore, even if the hospital did retain any of the material in 1991, it had been destroyed prior to the charge laid in 2022. On the basis of this disclosure, the defence brought an application returnable on October 3, 2024, seeking an adjournment of the trial scheduled for October 9, 2024.

10The adjournment application was heard by Bawden J. and dismissed for oral reasons given at the conclusion of the application. Defence counsel argued before Bawden J. that the adjournment was necessary so that they could investigate what steps were taken in 1991 to preserve tissue samples for potential DNA analysis and the existence of police or hospital policies at that time concerning the retention of such tissue. Prior to this time, the defence had not taken any steps to obtain tissue for testing, nor had they made any inquiries about the policies for retention of such evidence. Their first inquiry about it was after discovering that the tissue was no longer available. Justice Bawden ruled that any lost evidence motion would not be heard until the completion of the trial when the full consequences of the lost evidence could be assessed, citing R. v. La.² He further held that the late disclosure of the emails to and from the police and the hospital about the existence of any tissue would not have any bearing on the conduct of the trial itself, given that the Crown was prepared to admit that the police took no steps to preserve the evidence. He refused the adjournment. At that point, it was contemplated that this case would be proceeding to trial before a jury.

11However, at the outset of trial, the accused re-elected to be tried by a judge sitting without a jury and the case started before me on October 9, 2024. The parties filed an Agreed Statement of Fact with respect to the lost evidence issue, which was Exhibit 1 at trial. That Statement provided as follows:

1. In May 1991, the Toronto Police Service opened a file 910150964001 in relation to an investigation concerning [A.T.’s] pregnancy.

2. Standard police protocol required all police activity relating to an investigation by all police officers involved to be documented in occurrence reports, for example.

3. No occurrence report, in relation to the 1991 investigation, if it was created, can be located.

4. Police officers have a legal and professional duty to prepare and maintain accurate, detailed, and comprehensive notes in a timely manner as soon as practicable after an investigation.

5. The investigating officers in 1991 were PC Fisher and PC Cossar.

6. PC Cossar took notes of his investigation but did not take notes of the content of any statements made by [A.T.], her family members, or friends of the family.

7. The notes of PC Fisher, if such notes ever existed, cannot be located.

8. On May 15, 1991, PC Fisher and PC Cossar attended at the Children’s Aid Society Toronto (“CAST”) office at 180 Duncan Mills Rd., North York. Also present were: [A.T.], [E.T.], [M.T.], an uncle, and llyas Mullabhai.

9. After a discussion with the adult persons in attendance, PC Fisher and PC Cossar spoke to [A.T.] with llyas Mullabhai present. The May 15, 1991 police interview was tape recorded. The original recording was not secured by the police, and was maintained at CAST. No copies were made.

10. The May 15, 1991 tape recording cannot be located.

11. PC Fisher and PC Cossar were notified on May 15, 1991 that [A.T.] was scheduled to have an abortion at Toronto General Hospital the following week.

12. The abortion was performed at Toronto General Hospital on May 28, 1991. The aborted fetus had a gestational age of approximately 7 to 8 weeks.

13. PC Fisher and PC Cossar failed to seize and examine tissue evidence from the abortion. There is no evidence that the police in 1991 made any effort to obtain or preserve tissue samples from the abortion.

14. In November 2022, the Toronto Police Service opened a new file 22-2157218 in relation to this case.

15. The Toronto Police Service first contacted the Toronto General Hospital to inquire on the availability of biological material on [November/December] 2022, in relation to establishing parentage through DNA testing.

16. In response to the [November/December] 2022 inquiry, the Toronto Police Service were notified that as of the summer of 2022, any biological and diagnostic material that had been retained by the hospital prior to 2003 was destroyed, as a result of updating to a new health information system.

12Notwithstanding the position taken by defence counsel on the adjournment application, the defence did not file a notice of application with respect to the lost evidence, nor did they alert me to any intention of bringing such an application in the future.

13The University Health Network (UHN) (which includes the Toronto General Hospital) has policies for retention of materials recovered in surgical procedures. A letter from a doctor at the UHN sets out the minimum retention periods. This was disclosed to the defence, but not until this application was brought in late November 2024. The minimum retention periods are:

• Wet tissue: 30 days following issuance of the case report
• Paraffin blocks: 20 years from the creation of the blocks
• Slides: 20 years from the creation of the slides
• Requisitions: 2 years from the date of receipt.

It follows that by 2022, when the charges were laid, all the retention periods had expired. That is simply confirmation of what the defence already knew about the availability of the tissue.

14In addition to the Agreed Facts, I heard viva voce evidence from the complainant, her mother, and Mr. Dadabhai. The Crown offered to call the two investigating police officers from 1991 for cross-examination, but the defence declined that offer. Mr. Mullabhai (who was present when the complainant was interviewed by the police in 1991) provided a videotaped and cautioned statement to the police in 2022. He died prior to trial. The defence did not seek to have his statement tendered as evidence at trial. In cross-examination of the complainant, defence counsel made liberal use of the CAS records, but did not seek to tender any of those records as evidence at trial.

15In the course of her closing submissions, Ms. Greenspan raised the issue of the absence of crucial evidence from the 1991 investigation. I interrupted to ask if there was a lost evidence application, as I had not seen one in the materials. Ms. Greenspan responded that this was not a lost evidence application, but rather, her position was that the absence of such evidence was relevant to whether there was a reasonable doubt as to the guilt of the accused.

16At the close of the arguments on October 15, 2024, I reserved my decision to December 4, 2024.

17At the request of the defence in mid to late November, I did not release my decision on December 4, 2024, to enable them to file this lost evidence application. However, by the time the defence gave notice of their intention to bring this application, I had already prepared written reasons that I planned to release on December 4, 2024. I did not provide those reasons to counsel, but I did file them as a sealed exhibit (Exhibit A) in the court file later in the proceeding. I scheduled the lost evidence application to be heard on February 3, 2025, and imposed deadlines for filing material. However, due to two additional applications brought by the defence, this application was not heard until March 21, 2025. I reserved my decision on that date.

18On May 1, 2025, I advised the parties that I would be dismissing this lost evidence application, and that written reasons would follow. I had already dismissed the other two applications, and I therefore issued my reasons finding the accused guilty of sexual assault.³

19My reasons for dismissing this lost evidence application are set out below.

B. POSITION OF THE PARTIES

20The defence submits that the failure of the state to preserve critical evidence and the pre-charge delay (over 30 years between the alleged assault and the laying of this charge) have resulted in an unfair trial. The defence further submits that the resulting prejudice to the accused’s right to make full answer and defence is such that the only appropriate remedy is a stay of proceedings. The defence points to the following missing evidence: (a) tissue from the 1991 abortion capable of genetic testing; (b) the tape recording of the May 15, 1991 police interview; (c) the police notes of the May 1991 interview; (d) notes of P.C. Fisher; (e) failure of the police to interview Mr. Mullabhai and the complainant’s parents in 1991; (f) the police occurrence report from 1991; (g) evidence of CAS worker Barbara Sinclair (deceased); (h) evidence of the complainant’s father (deceased); (i) evidence of Mr. Mullabhai (deceased); and (j) the absence of any memory on the part of the two police officers. The defence position is that there has been unacceptable negligence by the police, resulting in relevant evidence not being available for disclosure. Further, they submit that even without unacceptable negligence, the prejudice to the defence as a result of the delay and missing evidence is so great that the only fair remedy is to stay the charge, as anything else would amount to an abuse of process.

21The Crown’s position is that there has been no unacceptable negligence, no actual prejudice to the defence, and no basis to issue a stay of the proceedings.

C. APPLICABLE LEGAL PRINCIPLES

22The Crown has a duty to disclose to the defence all material in its possession or control that is relevant. This includes material where there is a “reasonable possibility” that it may be of “some use” to the defence and is not clearly irrelevant. There is a corresponding duty on the police to disclose any such material to the Crown.⁴ Included in the duty of disclosure is an obligation on both the Crown and the police to preserve any such material in their possession.⁵

23If evidence that would have been subject to the duty of disclosure has been lost, the burden is on the Crown to establish that the loss was not deliberate, nor was it caused by unacceptable negligence. If the Crown fails to discharge that burden, the loss of the evidence constitutes a breach of the accused’s Charter rights under s. 7 of the Charter. Conversely, if there is an acceptable explanation for the loss, there is no s. 7 breach. However, in exceptional cases, a breach of s. 7 may be found, even in the absence of unacceptable negligence, if the loss of the evidence is so prejudicial to the accused that his right to a fair trial has been breached.⁶

24A helpful summary of these principles was provided by Roscoe J.A. in R. v. F.C.B., which was adopted by the Court of Appeal for Ontario in Bero, as follows:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.⁷

25In determining whether there has been unacceptable negligence in failing to preserve evidence, it is important to take a contextual approach, considering the circumstances at the time and how the relevance of the material might have been appreciated in those circumstances. As stated in La, at para. 21:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. [Emphasis added.]

26The defence submits that I should order a stay of all proceedings against Mr. Dadabhai. The case law is replete with references to a stay of proceedings being an “exceptional remedy” that is “rare” and available only in the “clearest of cases.”⁸ There are two situations in which an accused may be entitled to a remedy due to an abuse of process: (1) where the prosecution is conducted in a manner that contravenes the community’s basic sense of fair play and decency, compromising the accused’s right to a fair trial (“the main category”); and (2) where the prosecutorial conduct undermines the integrity of the judicial system (“the residual category”).⁹

27In Babos, the Supreme Court of Canada established a three-part test for determining whether a stay of proceedings is warranted, as follows:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

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

(3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.” [Citations omitted.]¹⁰

D. THE FACTUAL CONTEXT

28With those legal principles in mind, it is important to look at the context in which the police failed to preserve some of the evidence that would have been in existence in 1991, but which is no longer available.

29First of all, it must be borne in mind that this was a single-issue trial – identity. There is no doubt that somebody sexually assaulted A.T. in early April 1991. She was pregnant, and she was only 12 years old. The medical reports from her abortion procedure on May 28, 1991 showed that the fetus had a gestational age of 7 to 8 weeks. It is clear that she had sexual intercourse. Given her age, consent is simply not an issue. The only issue is the identity of the perpetrator.

30Second, this is not a situation in which 30 years elapsed before the potential of a criminal charge against Mr. Dadabhai was made known to him. He knew the accusation had been made within weeks of the event.

31Third, this is not a situation in which there is no evidence whatsoever available from the limited investigation that was done in 1991. The handwritten notes of the CAS worker have been preserved, although she has since died. There are also other records from the CAS file, including an extensive report on the whole CAS investigation. In addition, there are some notes from one of the investigating officers, even though that officer maintains that he no longer has any memory of the investigation. What is apparent from these records is that A.T. identified Mr. Dadabhai as the person who impregnated her as soon as she knew she was pregnant. That is confirmed by the complainant, her mother, her doctor, the CAS file, and the notes of one of the police officers.

32Fourth, the family of Mr. Dadabhai united in a concerted effort to persuade the authorities, both the CAS and the police, not to proceed with charges against Mr. Dadabhai. A.T. testified, and I accepted at trial, that she was coached by her father and his brothers to lie to the CAS and police in order to protect her cousin (Mr. Dadabhai) and to keep him out of trouble. The handwritten notes of the May 15, 1991 interview taken by the social worker indicate that A.T. described her relationship with her cousin as “falling in love” and that both her parents and Mr. Mullabhai were “satisfied there has been no coercion or force involved.”

33Mr. Mullabhai was described as a “friend of the family” and a “leader in the community.” He was present for the CAS meetings and the complainant’s interview with the police. The CAS records refer to Mr. Mullabhai telling them that he had himself conducted interviews of everyone involved. Some of what he told the CAS is recorded in the CAS records. In addition, Mr. Mullabhai gave a formal cautioned, videotaped statement to the police in 2022 in which he confirmed some of the information set out in the CAS records. He also confirmed in that 2022 interview that he knew A.T. had been coached about what to say in her interviews with the authorities, and in particular that she was told to say it was consensual and that no force was involved.

34I was not aware during the course of the trial of the extent of the material in the CAS file. The defence had the material and used it to cross-examine A.T., but apart from what was put to A.T. by Ms. Greenspan during cross-examination, the extent of the available records was unknown to me. However, the full records were filed on this lost evidence application, which was appropriate in order to provide context, and to assist in determining whether there was any prejudice to the defence.

35It is clear from the records that a decision was made by the police and CAS to take no further steps, but rather to allow the family to sort the situation out themselves. The CAS records state that the “parents do not want charges pressed.” They also record that A.T. told the police she did not want charges laid. Mr. Mullabhai’s statement says the same thing. The CAS Closing Summary states, “During the course of this interview, [A.T.] was very clear to the officers concerned that she does not want charges pressed against her cousin, as she felt the relationship was a mutually caring one and the responsibility shared with the two young people.”

36The family presented a plan. A.T. would have an abortion. She would then be sent to India for six years or more to attend a religious school so she could become an Islamic scholar. Her family told the authorities that A.T.’s completion of that program would give her “acknowledged status and recognition among the conservative Muslim community.” When she came back to Canada after that program, Mr. Mullabhai and other leaders would assist in finding her a husband in that community who would be prepared to marry her, even though she had “become pregnant by someone else.”

37The CAS records include information received from Mr. Mullabhai about his impressions from speaking to Mr. Dadabhai. The Closing Summary states:

Ilyas [Mr. Mullabhai] noted that he had talked with everyone involved and felt strongly that Abu [Mr. Dadabhai] had no awareness of his activities as criminal. A recent immigrant from India, Ilyas described this young man as naive, genuinely fond of his cousin, and brought up in a culture where male sexual activity was accepted, regardless of the age of the girl, “as long as he could get away with it”. Since the disclosure of [A.T.]’s pregnancy, Ilyas described both the boy and the family as feeling very depressed and ashamed. Ilyas expressed concern that the boy may need psychiatric care and stated his intention to work with both families to ensure that appropriate supports were in place.

38According to the CAS records, before the police would agree to not proceeding with charges, they wanted to speak with Abu (Mr. Dadabhai) and his family. The police did do that and subsequently advised CAS that Mr. Dadabhai was “contrite” and “scared.” The Closing Summary states:

[A.T.] and her parents were advised that P.C. Fisher would get back to them after speaking with Abu [Mr. Dadabhai]; however, he felt that unlikely the charges would be laid in light of [A.T.]’s and the family’s lack of cooperation with such a process as well as the lack of evidence of any form of coercion or force.

Subsequently, PC Fisher advised that he had spoken with Abu and his family, that the boy presented as young for his years, extremely contrite, and the family is sincerely distressed by the situation. PC Fisher stated that he thoroughly reviewed Canadian law with young Abu, and cautioned him that if there were any further occurrence with an underage girl, that he would proceed with charges against him. He stated that Abu had presented as extremely scared and had indicated he fully understood the consequences of his own actions and any such future involvement.

39The CAS Closing Summary concludes with a section entitled “Assessment of Risk” and a final paragraph entitled “Assessment”. The risk assessment concluded that A.T. was at “minimal risk” because she was at school in India, and stated that “her sexual relationship with her cousin did not appear abusive, despite the disparity in their years.” It also noted that the police had cautioned “the young man” and that the police were taking no further action.

40Under the heading “Assessment”, the CAS explained their reasons for closing the file as follows:

Despite being born in Canada, [A.T.] has maintained her primary identity as a Suni Muslim, with her primary contacts in this community within Toronto. Throughout this investigation, she presented as articulate, intelligent, and assertive, with both her and her 19 year old cousin presenting as having little information or preparation around relationships. Parents presented consistently as caring and concerned and supportive of their daughter. At no point did evidence emerge to suggest that the relationship itself had been an abusive one or coercive. Both [A.T.] and her family appear well supported by Ilyas [Mr. Mullabhai], an acknowledged community leader within [her family]’s own community. As there is no further reason for service this file may now be closed.

Case closed.

41This is consistent with the notes of P.C. Cossar, who wrote in his memo book, “charges not laid due to family circumstances . . . for best interests of child – so she can marry in Islamic faith.”

42It is against this factual backdrop that I must assess whether the police were negligent in failing to preserve evidence in this matter and the impact of the missing evidence on the fair trial rights of the accused.

E. ANALYSIS

(i) Failure of the Police to Obtain and Preserve CAS Tape of Interview

43In the normal course, it would be routine for the police to obtain and preserve the recording of an interview with a child sexual assault complainant. The Crown argues that there is no breach of the disclosure duty because the CAS tape was never in the possession of the police. I disagree. The police interview of the complainant was done at the CAS office, ostensibly at the request of the family so as not to exacerbate the shame brought upon them by this situation. However, it was a police interview, and it was incumbent upon the police to keep a copy of the tape. I also accept the defence position that, in the absence of evidence to the contrary, it might also be inferred that an accused person facing charges 30 years later would be prejudiced by the fact that the police failed to do so.

44However, in this case, the family of Mr. Dadabhai (including A.T.’s own father) persuaded both the police and the CAS not to proceed with charges against him. The case was closed and there was no reason to believe it would ever be reopened. This was done for the benefit of the accused. Both the family of the complainant and the family of the accused were opposed to charges being laid, and the authorities acquiesced. Not only that, the complainant was also removed from the jurisdiction. In these circumstances, it might still be preferable for the police to obtain and preserve a copy of the tape, but that is the counsel of perfection, a standard that is not required. Given the surrounding circumstances, in my view, failing to obtain and preserve a copy of the tape cannot be said to constitute unacceptable negligence. As the Supreme Court of Canada held in La, “The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future.”¹¹

45This is not a situation where it is completely unknown what the tape might reveal. The social worker who was present, Barbara Sinclair, took detailed notes, which were later transcribed into the Closing Summary. Her account of what A.T. said is fully consistent with the statement given to the police in 2022 by Mr. Mullabhai. Based on the limited nature of the notes taken by P.C. Cossar, and the general nature of police notes in memo books, with which I am familiar over these many years as a trial judge, the notes taken by Ms. Sinclair are more legible and more detailed than police notes would likely have been. The failure of the police officers to take notes is amply compensated for by the notes of Ms. Sinclair. The notes are very detailed, including placing quotation marks around certain phrases (e.g., “we fell in love”). Ms. Sinclair was under a professional duty to ensure there was a record of the complainant’s report. She had no motive to misrepresent anything that was said during the interview, and it is pure speculation to suggest she did so. There is no reason to believe that her notes are not an accurate summary of anything of any consequence said by A.T. in the interview.

46Both in the mistrial application and in this lost evidence application, the defence persistently argued that the complainant’s inability to remember the content of what she told the authorities in her 1991 interview meant that there was no ability to cross-examine her on her prior inconsistent statement or undermine her credibility. That is simply untrue. The defence not only was entitled to, but did, cross-examine the complainant on that statement based on the CAS records and demonstrated that she gave the authorities a different version of how the sexual intercourse took place than she testified to at trial. Through that cross-examination, the defence obtained an admission from the complainant that she had lied to the authorities about the circumstances in which the intercourse with Mr. Dadabhai occurred. In her testimony at trial, the complainant testified that she did not remember the specifics of what she said to the CAS/police, but that she had been coached to lie by her father and his brothers in order to protect Mr. Dadabhai. If the actual tape still existed, she might well have acknowledged at trial that those were her words and that she told the authorities she was in love with Mr. Dadabhai and that the sex was consensual. However, that does nothing to advance the accused’s case because the complainant would nevertheless say these were lies she told at the behest of her family members. I have already ruled that this would not change my assessment of her credibility.¹²

47Furthermore, I emphasize that all of this information is only related to whether there was “consent” to the intercourse. In this situation, consent is irrelevant. The complainant was 12 years old and the accused was 21. The only thing that would assist him in terms of providing a defence to this sexual assault charge would be if she named somebody else as the person who impregnated her. There is no hint of any such thing anywhere in the record. The evidence that exists points clearly in the other direction. The complainant testified that she named Mr. Dadabhai as the perpetrator to her father, the CAS, and the police. The CAS records confirm that to be the case, as do the notes of one of the police officers, the statement from Mr. Mullabhai, and the testimony of A.T.’s mother at trial. Furthermore, the CAS notes and the statement of Mr. Mullabhai indicate that Mr. Dadabhai himself admitted to having intercourse with his cousin, while maintaining that it was consensual and that he did not know it was criminal (neither of which would be a defence at law).

48The defence fastened, in particular, on the CAS notes recording A.T. as saying that the pregnancy occurred in the context of her “falling in love” and that she had intercourse on more than one occasion. The defence argued that the complainant’s refusal to admit that she said that and to “adopt it” made it impossible to challenge her testimony in the absence of the tape. Again, this is simply not the case. The precise nature of the lies told by the complainant is not critical to proving that she gave a prior inconsistent statement. She admitted to having lied. That is the issue that undermines her credibility. She is not required to “adopt” aspects of her prior statement, even if she remembered them. If she did not adopt the statement, it still would not become part of her evidence at trial, even if the tape was available to prove conclusively that this was what she said. Her evidence remains what she said at trial, and her admission that she said something else previously is an issue going to credibility. The absence of the tape had no impact on that.

49Similarly, the defence appears to be of the view that the complainant’s refusal to admit that she said she “fell in love” and had sexual intercourse more than once undermined their ability to argue that there was an alternate suspect. Again, this has nothing to do with the absence of the video tape. The complainant has said that she lied to the authorities about the circumstances of Mr. Dadabhai sexually assaulting her. This is her position with or without the tape. It is clear from the CAS notes that the complainant is referring throughout to Mr. Dadabhai and there is no suggestion whatsoever that she was “in love with” somebody else. The defence factum devotes just over a page of its factum to the ruling of Sugunasiri J. on the defence’s s. 276 application, arguing that her ruling “effectively nullified the applicant’s defence” with respect to providing an alternative hypothesis for A.T.’s pregnancy.¹³ First of all, I fail to see how that is in anyway connected to the application now before me, which is about lost evidence and delay.

50Secondly, and importantly, the defence in my view has mischaracterized that ruling. The ruling made by Sugunasiri J. specifically permitted such cross-examination, as follows (at para. 19):

Similarly, the defence can ask whether the Complainant was subject to any other sexual activity by any unnamed person in April of 1991 that could have caused a pregnancy. To balance A.D.’s ability to make full answer and defence with the considerations in s. 276(3), A.D. can probe a little further into any response the Complainant gives. For example, if she testifies that there is no one else, A.D. can probe a bit further on the basis that the Complainant was initially reluctant to disclose the alleged sexual assault by A.D. There is also evidence on the record that she in the past has been asked not to speak of sexual activity that she was subject to. Within this context, there may be some permissible areas of questioning that should either be established at the start of trial or managed as the questions unfold. Any questioning shall always respect the Complainant’s dignity and privacy, especially in the words defence counsel uses to ask the questions. The defence is not permitted to use the term “sexually active” when asking about any sexual activity, given that the Complainant was under the legal age of consent in April of 1991.

51Notwithstanding this authority to proceed, and the role left to me as the trial judge with respect to further follow-up questioning, Ms. Greenspan did not raise any such possibility with the complainant during cross-examination. The failure to do so, I assume, was not an oversight, but rather a deliberate trial strategy not to pursue that line of questioning. It has absolutely nothing to do with the absence of the tape of the interview, or any other aspects of the missing or lost evidence. It is too late now to seek to escape from the consequences of that strategy under the guise of a lost evidence or abuse of process application.

52The defence argues that the absence of the tape prevents the defence from being able to assess the “apparent emotional state, level of maturity, or demeanour of the complainant.”¹⁴ First of all, my understanding is that this was only an audio recording, which makes observations of demeanour and level of maturity less obvious. However, more to the point, and even if the missing tape was a video recording, the contemporaneous notes taken by Ms. Sinclair during the police interview describe the complainant as “tall, self-possessed, confident” and notes that she was “doing well academically.” In her more detailed typed Closing Summary, Ms. Sinclair wrote that the complainant “presented as a tall, well-developed, confident young teen who is physically mature.” By way of contrast, the accused is said to be 19 or 19-20 and “young for his years” and “naïve” and is referred to as “young Abu.” In fact, A.T. was only 12 (not a teen) and Mr. Dadabhai was 21 years old (clearly an adult). These are characterizations that could hardly have been more favourable to the defence. Nevertheless, A.T. was 12 and Mr. Dadabhai was 21. Consent was not an issue, regardless of whether she was or was not “mature” for her age.

53The cases relied upon by the defence on this point are distinguishable on their facts. The situation before me is one in which: (i) the act of intercourse is undeniable (because of the complainant’s pregnancy); (ii) the only issue at trial is the identity of the man who impregnated her; (iii) there is no evidence whatsoever of any other possible perpetrator and the accused was the complainant’s own cousin and known to her; (iv) the complainant has admitted that in her original statement she lied to the authorities about the surrounding circumstances as instructed by her father and uncles in order to protect the accused; and (v) consent is irrelevant in any event because of the age of the parties. It is not surprising that there is no case on all fours with this one. However, for the most part, the cases cited by the defence are so different on their facts as to be unhelpful.

54Some of the cases, however, are more relevant than others, the most notable being the landmark Supreme Court decision in La. In that case, the police were looking for a teenage runaway and found her in a car with a person they knew to be a pimp. Officer Hollinger interviewed her for the purpose of preparing a secure treatment application before there was any criminal investigation of the driver for sexually assaulting her. Officer Hollinger taped that interview. Subsequently, sexual assault charges were laid against the driver. At that time, different officers interviewed the complainant and that interview was videotaped. At trial, Officer Hollinger testified that he could no longer find the tape of his interview with the complainant but said that the complainant “told a few lies” in that statement. The issue at trial, and through to the Supreme Court of Canada, was whether the loss of the initial interview tape was sufficiently harmful to the defence that a stay of proceedings should be issued. The Supreme Court held that the application for a stay should be dismissed. The Court found that the officer’s loss of the tape was inadvertent and that when the tape was made it was not in contemplation of a criminal investigation. Those were the determinant factors in the Court finding that the Crown had established this was not a situation of unacceptable negligence. By analogy in this case, the reason for the loss of the tape is unknown and cannot be said to be deliberate. The police did not take a copy of it, but they had decided not to proceed with charges so there was no reason to believe it would ever be necessary.

55In La, the defence also argued that the right of the accused to make full answer and defence was impaired due to their inability to cross-examine based on the tape of her first interview with Officer Hollinger. Sopinka J. (for the majority) wrote:

I find that the appellant has not established that his right to make full answer and defence has been impaired. A number of factors lead to this conclusion. The interview recorded on the tape was not regarded by Const. Hollinger to be a detailed conversation, and he was investigating a runaway teen, not a prostitution ring. M.F. provided four other statements to the police. She testified at the preliminary inquiry. Most importantly, an alternative source of information is available: Const. Hollinger has already testified that M.F. told “a few lies”. That in itself is highly useful to the defence in attacking her credibility. Const. Hollinger was cross-examined during a voir dire at the trial. He was not asked, however, to elaborate on the lies that M.F. told nor whether there were discrepancies between what was said by M.F. on the tape and the statements which were taken subsequently. Until that evidence is heard it is at least premature to allege that the appellant’s rights to full answer and defence are seriously prejudiced. Moreover, adopting an optimistic view as to what the tape would have disclosed, it is difficult for me to accept that even a successful cross-examination would be appreciably more damaging to the credibility of M.F. than the evidence of Const. Hollinger that she told a few lies.¹⁵ [Emphasis added.]

56Again, the situation before me is similar. There is an alternative source of information in the CAS records and notes as to what was said, as well as in the statement of Mr. Mullabhai that the complainant lied to the authorities in 1991. In addition, the complainant herself admitted that she had lied, which is considerably more damaging than the evidence of the complainant’s untruthfulness in La.

57The defence both relies upon, but also seeks to distinguish, the decision of the Court of Appeal for Ontario in R. v. J.D., which is a brief endorsement, consisting in its entirety as follows:

In our view the trial judge erred in granting the stay requested in the pre-trial motion. The officer’s notes, made immediately after the taking of the statement, were available and accurate for purposes of cross-examination. It was speculative whether there were any inconsistencies between the complainant’s statement and the police officer’s notes of that statement. Accordingly we cannot say that there was any prejudice which would have warranted the granting of this drastic remedy at this stage. The appeal is allowed, the stay is set aside, and the matters remitted for trial.¹⁶

58It should be noted that J.D. is a decision from 1996, it was heard before the evidence at trial, and it was also prior to the landmark decisions in Bero and La. However, it is another example of a case in which the notes of a person present at the interview were held to be a sufficient substitute for a recording of the interview itself. I note that in the case before me, the notes are very detailed and were made contemporaneously with the interview itself (not after the fact, as was the case in J.D.), which is a greater safeguard than was the case in J.D. Also, I have had the benefit of hearing the evidence at trial, including the cross-examination of the complainant about her 1991 statement. I am in a better position to assess whether the absence of the tape itself could have impaired the accused’s right to a fair trial. It is absolutely clear to me that it did not.

59In R. v. Sheng (a case extensively relied upon by the defence in connection with its lost evidence application, although on another point), the trial judge granted a stay of proceedings because tape recordings and notes of interviews in 1994 with two child complainants were no longer available ten years later when charges of sexual assault were eventually laid.¹⁷ The trial judge found that: (1) there was “unacceptable negligence” on the part of the police in not preserving this evidence; (2) the accused was materially prejudiced by the lost records; and (3) a stay of proceedings was warranted. The Court of Appeal for Ontario overturned all three findings. The situation before me is similar, but the Crown’s position in this case is even more compelling.

60The Court of Appeal also found in Sheng that the destruction of the videotapes and officer’s notes after a period of seven years did not constitute “unacceptable negligence” because the police had decided in 1994 that charges would not be laid and there was no prospect at that time that the investigation would be reopened years later. Justice Laskin relied in that regard on the Supreme Court’s observation in La that police cannot be expected to preserve everything that comes into their hands in the off-chance it might be relevant in the future. In the case before me, there is no evidence that the notes or tapes were actually destroyed, they simply cannot be found. However, this was in the context of a decision not to lay charges, just as was the case in Sheng.

61The Court of Appeal also found in Sheng that there were sufficient substitutes for the tape recording from the original interview in 1994 to negate what might otherwise be considered prejudice to the defence from the lost evidence. Those substitutes included the extensive written report prepared by the CAS worker, even though his actual notes from the interview were not available. In the case before me, both the contemporaneous notes and the extensive written report by the CAS worker were produced to the defence. The Court of Appeal in Sheng also referred to additional material produced in the current investigation (ten years after the events in question), which included videotaped interviews of the complainants and evidence from the preliminary hearing. In the case before me, the defence has two videos of interviews with the complainant in 2022 – one from the body-worn camera of the officer who first interviewed her on November 5, 2022 and the second from the formal sworn and cautioned statement at the police station on November 19, 2022. These videos are in addition to the statement taken from her mother and Mr. Mullabhai.

62Finally, the complainants themselves were subjected to an extensive and probing cross-examination in which they admitted to numerous inconsistencies and lies to the CAS, to the police and in their disclosure generally. And, as neither J.H. nor T.H. remembered very much about what they said to the CAS and the police during the 1994 investigations, at best the lost evidence from those investigations would have permitted the defence to bring out a few more lies and a few more inconsistencies in the complainants’ evidence. Given what the defence had available to it, the lost evidence was not so prejudicial to the respondent’s defence that it warranted a stay. [Emphasis added.]¹⁸

63The situation before me is far stronger. In both cases, the complainants gave no inconsistent statements about the identity of the perpetrator. However, in Sheng there was an issue about what actually happened to the two complainants and whether any touching was sexual in nature. This is to be distinguished from Mr. Dadabhai’s situation as there is no issue that there was full intercourse, given the resulting pregnancy. The only issue in this case is whether A.T. truthfully and reliably identified Mr. Dadabhai, a close relative who was known to her. Further, the area in which A.T. admitted lying to the authorities (the nature of their relationship and whether there was any force involved in the intercourse) does not constitute a defence in any event. She was only 12 years old and she was pregnant. The lies she told are relevant only to general credibility, which is appropriate to take into account in determining whether she told the truth on the identification issue, but not otherwise. I agree with Laskin J.A. that having the tape recording would have at best brought out a few more lies, akin to what Sopinka J. also noted in La. It would not have made a difference to my credibility assessment.

64These cases I have referred to are quite different from cases such as R. v. Carosella relied upon by the defence, in which stays were granted.¹⁹ In Carosella, the complainant made an initial disclosure to a social worker at a women’s shelter and the shelter deliberately destroyed all evidence of that statement for the purpose of keeping it out of the hands of the police. The social worker claimed to have no memory of the interview, which had taken almost two hours. The absence of any evidence at all as to the content of that interview and the fact that the evidence was deliberately destroyed to keep them away from the police are significant distinguishing factors.

65To summarize, the failure to preserve the tape was not unacceptable negligence and, in any event, there is no reason to believe that the preservation of the tape would have been of any assistance to Mr. Dadabhai at trial.

(ii) Failure of the Police to Preserve Tissue Samples from the Abortion

66The fact of the abortion and the gestational age of the fetus are confirmed by the medical records. The only thing that preservation of the abortion product could add is confirmation of parentage. In this case, not only was the case closed in 1991 without any charges being laid, but there was never an issue in April 1991 as to the identity of the man who impregnated A.T. Mr. Dadabhai was named by A.T. as soon as it was confirmed that she was pregnant. She never wavered in that identification, nor did any of her family members who were dealing with the police and CAS. Even more to the point, Mr. Mullabhai told the CAS in 1991, and stated again in his police statement in 2022, that Mr. Dadabhai admitted this to him. Further, according to the CAS records, the police interviewed Mr. Dadabhai, who admitted the sexual intercourse and appeared contrite. At that time, DNA testing was sometimes being done, but it was by no means commonplace. There was no legal mechanism to compel a suspect to provide a sample for testing. It would have been a highly unusual step to perform a DNA analysis on tissue to confirm an admitted fact with respect to parentage. Likewise, in these circumstances I see no negligence in the police not taking steps to retain tissue for later testing. They had no reason to believe this would ever be revived. Further, if Mr. Dadabhai was concerned at the time, he could have requested that testing be done, but he did not. That would be consistent with his admission to the police and Mr. Mullabhai at the time. Based on this, it was reasonable for the police to take no steps in 1991 in relation to preserving tissue. Again, the decisions in La and Sheng are apt.

67The defence argues in their factum that from the time the complainant made this allegation against him in 1991, he was in “continuous jeopardy,” and because no charges were laid, “there could be no finality through a Crown discretionary decision to withdraw or stay proceedings.”²⁰ At no time between 1991 and 2022 did the accused ever seek to clear his name by having the tissue from the abortion tested to rule him out as the perpetrator. The decision not to lay charges was made for his protection.

68I note that sexual assault cases are tried every day without DNA evidence. The absence of DNA evidence, even where it previously existed but was lost due to police inaction that does not amount to unacceptable negligence, does not constitute prejudice to the defence case sufficient to justify a stay, nor does it make the trial unfair. Sexual assault cases typically come down to the word of the complainant against the word of the accused. In the larger scheme of things, this case was really no different. Contrary to the assertions of defence counsel, this does not make it almost impossible for the accused to defend himself. Quite the opposite is true. Sexual assaults that occur in a “she said/he said” context are extremely difficult to prove because of the heavy burden of proof beyond a reasonable doubt. That is even more so in historical sexual assault cases such as this one. Nevertheless, I found the Crown case against Mr. Dadabhai met that heavy standard.

(iii) Potential Witnesses Who Are Now Deceased or Have No Memory of the Events

69The two investigating officers apparently claim to have no memory of the investigation. They would have no independent evidence to offer in any event, apart from Mr. Dadabhai’s confession. If anything, it is an advantage to the defence that they do not remember the events. The Crown offered to have the officers called for the defence to cross-examine, but the defence opted not to.

70The same reasoning applies to Mr. Mullabhai, who died in March 2024. He was involved in the police/CAS interviews, and could corroborate the complainant’s evidence about being coached by her male relatives to tell the authorities that the sex had been consensual, but that would not be useful to the defence. Likewise, he reported to the CAS, and also stated in his 2022 statement to the police, that Mr. Dadabhai admitted to him that he had sexual intercourse with the complainant. Again, this would not be helpful to the defence. The defence could have brought an application to have Mr. Mullabhai’s cautioned, videotaped statement to the police admitted as evidence at trial as an exception to the rule against hearsay. There would be strong grounds for its admission. The defence chose not to do that, which is not surprising since it harms rather than hurts the defence. There is no reason to believe that Mr. Mullabhai’s testimony at trial would be any different, if it had been possible to call him as a witness at trial.

71Barbara Sinclair, the social worker who took extensive notes and authored the CAS Closing Summary, is also now deceased. However, there is nothing to suggest that her viva voce evidence, if available, would be any different from her notes, which the defence already had and used extensively in cross-examination.

72Likewise, there is no reason to believe that the testimony of A.T.’s father would be different. He was Mr. Dadabhai’s uncle. If it was believed that his evidence would be different from the position he took with the police and CAS, I would expect to have had some evidence of that. There is nothing. It is possible he would deny coaching A.T. on what to say to the authorities. That is the highest possible assistance his testimony could be to the defence. There was no evidence to that effect at trial, nor before me on this application. In any event, that issue goes only to “consent,” which is not a defence to sexual intercourse with a 12-year-old child.

(iv) Other Missing Evidence

73It is not clear whether some of the other “lost evidence” relied upon by the defence ever existed. For example, no occurrence report could be found in the police records, but it may be the case that it was never generated. If it had been, it would inevitably have shown Mr. Dadabhai as the known suspect, as is shown in P.C. Cossar’s memo book notes and consistent with the CAS records, the statement of Mr. Mullabhai, and the testimony of the complainant’s mother. Likewise, it is unclear whether P.C. Fisher kept any notes, or if they have since been lost, but there is no reason to believe they would be different from what the CAS reported as to his interview with Mr. Dadabhai and his parents.

74There is no evidence that the investigating officers conducted separate interviews of Mr. Mullabhai or either of A.T.’s parents, although they met with these people together at the CAS offices and discussed the case with them. Given the police decision to close the file without laying charges, it is likely that formal interviews were not conducted of these individuals. This is more like a complaint about the adequacy of the police investigation than it is about lost evidence.²¹

F. CONCLUSIONS

No Breach of s. 7 Rights from Crown Failure to Disclose

75Given that at the time of the 1991 investigation there was no issue with respect to identification of the person responsible, and the decision of the police (at the urging of the family of Mr. Dadabhai) to not proceed with charges against him, I find there was no unacceptable negligence by the police with respect to any of the alleged lost evidence.

76Further, I also find there was no actual prejudice to Mr. Dadabhai as a result of any evidence from 1991 that is no longer available. There was certainly nothing that would rise to the level of interfering with his right to a fair trial. If anything, the 30-year delay benefitted Mr. Dadabhai, as the admissions he made to the police officers and Mr. Mullabhai were not introduced into evidence against him in the trial proper.

77Accordingly, I find no breach of s. 7 arising from the duty of disclosure.

No Abuse of Process

78I also find there was no abuse of process by the police. As stated, there are two situations where an abuse of process can result in a stay of proceedings. First, a stay may be appropriate where the conduct of the police or the prosecution contravenes the community’s sense of fair play and decency, compromising the accused’s right to a fair trial. The prejudice must be ongoing or carried through to the conduct of the trial.²² There was nothing of that nature in this case. The second situation is where the conduct undermines the integrity of the judicial system. This category includes conduct that is so offensive to society’s sense of fair play and decency that proceeding with the trial would damage the integrity of the judicial system, even though the trial itself was fair.²³ Again, there was nothing like that in this case. For example, there was no deliberate destruction of evidence by the police, or anybody else. Also, there was nothing deliberate or underhanded in any of the state conduct surrounding the 1991 investigation or since. In short, there was no conduct affecting the accused that could be said to be an abuse of process. If the police and the CAS are to be criticized at all, it is for acquiescing to the family’s plan to send this 12-year-old complainant off to India for the rest of her childhood to prevent the shame that would otherwise befall the family, and doing nothing to address the crime that was committed against her (apart from giving Mr. Dadabhai a stern talking to). This family plan was very much to Mr. Dadabhai’s benefit. Indeed, based on all of the evidence before me, including the testimony of the complainant which I believe, the plan was designed by the family specifically for his benefit and protection.

No Entitlement to the Remedy Requested

79Although I have found no breach of s. 7, no abuse of process, and no prejudice to Mr. Dadabhai’s fair trial rights, I have nevertheless considered the availability of the remedy sought.

80As previously stated, a stay of proceedings is only available in exceptional cases and is warranted only where the following has occurred: 1) there is prejudice; 2) there is no alternative remedy capable of redressing the prejudice; and 3) where there is still uncertainty after the first and second steps, a balancing of the interest in denouncing the state conduct and preserving the integrity of the justice system as against the interest that society has in having a final decision on its merits weighs in favour of a stay.²⁴

81In my view, the defence’s claim for this remedy fails at all three levels. First, I have found no prejudice to the accused’s fair trial rights. However, to the extent there was any, the appropriate remedy was to consider the absence of evidence in determining whether the Crown established Mr. Dadabhai’s guilt beyond a reasonable doubt. I already took that into account, both in my original reasons drafted in November 2024 and in my final decision released on May 1, 2025. In that final decision, I quoted my original decision as follows:

I have taken into account the substantial gaps in the evidence. None of the records from the interviews done by the police in 1991 are available, which is deplorable. It is also unfortunate that no tissue from the aborted fetus was retained. Perhaps this is attributable to the decision made at the time to take no further steps. Obviously, it would be preferable to have this evidence. I am well aware that a reasonable doubt can arise from the absence of evidence.²⁵ Typically, this arises where there is a key piece of evidence one would expect to see, but which either does not exist or was not presented at trial. It can also arise in circumstantial evidence cases where the absence of a piece of evidence can cause a reasonable doubt because another possible explanation of the evidence inconsistent with guilt cannot be ruled out. This case is not like that. In the circumstances of this case, there is nothing about the nature of the “missing” evidence that causes me to have a reasonable doubt about whether the accused is the perpetrator of this offence.²⁶

82I then went on to consider whether that assessment had changed in light of the more expanded argument in this lost evidence application, and found that it did not, as follows:

Finally, I did refer in my reasons written in November 2024 to the issue of the absence of evidence giving rise to a reasonable doubt. Again, I stand by my original reasons on that point. However, I heard considerably more argument on that point during the lost evidence application. I have dismissed that application. However, before doing so, I did consider whether a lesser remedy than a stay of proceedings would be appropriate, and specifically whether the absence of such evidence could give rise to a reasonable doubt even if a stay of proceedings was not appropriate. I believe it was important to do that to ensure the fair trial rights of the accused, and notwithstanding the defence argument that the only adequate remedy is a stay of proceedings. Upon further reflection, I remain of the view that there is nothing about the missing evidence that gives rise to a reasonable doubt.

Only two people actually know what happened in 1991 – A.T. and Mr. Dadabhai – both of whom testified at trial. The complainant admits prior inconsistent statements and that she lied to the CAS and police. I have found that this does not undermine the credibility of her identification of Mr. Dadabhai as the one who caused her pregnancy. The CAS handwritten notes and the closing summary from the CAS files are detailed and comprehensive. There is no reason to believe the tape recording of the interview would add anything material, nor that the memories of the CAS workers or police would be any different either. There is nothing about the missing CAS and police evidence that gives me a reasonable doubt, particularly given the detailed records that do exist. It is unfortunate, but understandable, that no tests were conducted of the tissue from the abortion in order to assess paternity. However, corroboration of a complainant’s evidence is not required in order to establish the guilt of the accused. The absence of forensic proof does not cause me to have a reasonable doubt. I remain satisfied on the whole of the evidence that the complainant’s version of events is both reliable and credible.²⁷

83If I had proceeded to the third step of the test, there is no question that the balancing of interests tips strongly towards having a final decision on the merits of this case. A.T. was sexually violated and impregnated when she was a 12-year-old child by a 21-year-old family member she trusted. Her family then joined ranks to protect the perpetrator, directing her to lie to the authorities to protect him. Then, they sent her off to India to attend a religious school until she was 18 years old. Even upon returning to Canada, she felt alienated from her family, feeling unable to attend her father’s funeral because she knew her rapist would be there. She was only 12 when her relatives persuaded the authorities not to take any steps against the person she identified as her rapist. The law is very clear that she is not bound by decisions they made or the steps they took allegedly on her behalf.²⁸ It was only after her father’s death that she felt able to come forward. She was entitled to do so. This was a serious crime against a vulnerable child. Society’s interests in a decision on the merits vastly outweighs any perceived unfairness to Mr. Dadabhai as a result of the 30-year delay.

84Accordingly, this application is dismissed.

Procedure in This Application

85I should not be taken to have condoned the procedure taken by the defence in this case. Although I did grant an adjournment so this application could be brought (indeed, two adjournments), it must immediately be noted that the manner in which it was brought is highly irregular. There is nothing new in this application. It is not based on anything that arose during trial. The defence has known all the information about the missing evidence for months, if not longer. There is no reason whatsoever that notice of this application could not have been filed, in the normal course, prior to the commencement of trial. This could then have been supplemented based on the evidence at trial, if counsel saw fit. That does not mean that the entire evidentiary record would need to have been before the court at the outset, but at the very least, the trial judge and the Crown were entitled to know during the trial that at some point this issue would be addressed. I can understand the reluctance of the defence to have the full record known by the trier of fact prior to the completion of the evidence in the trial proper, particularly the evidence about why the police chose not to proceed with charges in 1991 and reported acknowledgments of guilt made by Mr. Dadabhai to various people. That evidence is admissible before me on this application as relevant to the issue of why certain evidence was not obtained or preserved by the police in 1991. However, it would not likely have been admissible at trial because the individuals who heard them first-hand either profess to have no memory or are deceased. The Crown chose not to attempt to elicit this evidence at trial. However, concern about how the trier of fact might be influenced by such evidence does not entitle the defence to lie in the weeds rather than file the appropriate application at the outset. They could then file additional material or call additional evidence at the close of the trial proper, as could the Crown, prior to the case being fully concluded. However, it should not be a surprise to the judge and the Crown at the end of the trial that the defence is in fact bringing a lost evidence application. Generally, that would be an extremely inefficient manner of proceeding, as additional evidence might be led during the trial relevant to the lost evidence issue, particularly in a judge-alone trial.

86If the defence did not trust the trial judge to obey her oath of office and make a decision about guilt or innocence without taking into account information relevant only to the lost evidence application, they could have opted for a jury trial (which had been the plan right up until the last minute) and then dealt with the lost evidence before the trial judge after the jury verdict had been received. The jury could have been given a “Bero instruction” to consider the missing evidence in the course of determining whether they had a reasonable doubt as to guilt, as I did in R. v. Murray #6.²⁹ Already knowing everything they needed to know about the content of any lost evidence application, the defence elected not to proceed with a jury trial. Obviously, there is no problem with that, and the Crown consented. However, the defence then chose the worst possible path forward: no notice of the lost evidence application prior to the trial; no notice of the application immediately after all the evidence had been heard; and no notice of the application until more than a month later, when I had already written my final judgment on the merits. This procedure chosen by the defence was improper and I would not want to see other counsel taking this route simply because I allowed it in this case.

Footnotes

1. 1Canada Evidence Act, R.S.C., 1985, c. C-5, at s. 30(10)(a)(i)
2. 2R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 ["La"].
3. 3R. v. Dadabhai #1, 2025 ONSC 2587 (reasons for conviction); R. v. Dadabhai #2, 2025 ONSC 2588 (reasons for dismissing recusal motion); R. v. Dadabhai #3, 2025 ONSC 2589 (reasons for dismissing mistrial application).
4. 4R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
5. 5R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 472; La, at paras. 17, 21.
6. 6R. v. Bero, 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545, at paras. 30, 32 ["Bero"]; La, at para. 20; R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, at paras. 33-35.
7. 7Bero, at para. 30, citing R. v. F.C.B., 2000 NSCA 35, 182 N.S.R. (2d) 215, at para. 10.
8. 8R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68 ["O’Connor"]; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31 ["Babos"]; La, at para. 23; Sheng, at para. 44; and Bero, at para. 55
9. 9O’Connor, at paras. 63, 73; Babos, at paras. 30-35.
10. 10Babos, at para. 32.
11. 11La, at para. 21.
12. 12R. v. Dadabhai #1, 2025 ONSC 2587, at para. 71 (reasons for conviction); R. v. Dadabhai #3, 2025 ONSC 2589, at paras. 37, 39, and 45 (reasons for dismissing mistrial application).
13. 13Defence Factum, at paras. 39-41.
14. 14Defence Factum, at para. 96.
15. 15La, at para. 32.
16. 16R. v. J.D., [1996] O.J. No. 1907 ["J.D."].
17. 17Sheng, at paras. 1, 36.
18. 18Sheng, at para. 52.
19. 19R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80 ["Carosella"].
20. 20Defence Factum, at para. 51.
21. 21R. v. Barnes, 2009 ONCA 432, at para. 1; R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, at para. 29.
22. 22O’Connor, at paras. 63, 73; Babos, at paras. 30-35.
23. 23Babos, at para. 35.
24. 24Babos, at para. 32.
25. 25R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at paras. 68-71.
26. 26R. v. Dadabhai #1, 2025 ONSC 2587, at para. 65.
27. 27R. v. Dadabhai #1, at paras. 76-77.
28. 28R. v. Johnston, 2002 CarswellOnt 5093 (Ont. S.C.J), at para. 46; R. v. G. (W.G.) (1990), 1990 CanLII 2628 (NL CA), 85 Nfld. & P.E.I.R. 91 (Nfld. C.A.), at p. 14 and p. 5 (separate opinion); see also R. v. D.(E.) (1990), 1990 CanLII 6911 (ON CA), 73 O.R. (2d) 758 (Ont. S.C., C.A.), at p. 17.
29. 29R. v. Murray # 6, 2020 ONSC 1495, affirmed R. v. Murray, 2025 ONCA 222.