ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Applicant
– v. –
MUSAB WASIF
Respondent
Julie O’Connor for the Crown
Carson Hurley counsel for the Respondent
HEARD: May 13-14, 2025
PUBLICATION BAN
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Pursuant to subsection 648(1) of the Criminal Code, no information regarding these pre-trial applications shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
RULING ON PRE-TRIAL APPLICATIONS
THE HONOURABLE JUSTICE SUNIL S. MATHAI
Overview1
1Musab Wasif (“Mr. Wasif”) is charged with assault causing bodily harm, sexual assault, sexual interference (2 counts), invitation to sexual touching, assault with a weapon, assault (2 counts) and uttering threats. The charges arise from incidents that occurred on June 17, 2021, and July 13, 2021, when the complainant was 14-years-old.
2Mr. Wasif’s seven-day trial is scheduled to commence on July 30, 2025. I have been assigned to hear the trial, sitting with a jury.
3There are four pre-trial applications before me. The Crown’s applications are as follows:
(1) Testimonial aids application: The Crown seeks an order pursuant to s. 486.1(2) and 486.2(2) of the Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”) permitting the complainant to testify from outside the courtroom via closed circuit television (“CCTV”) and in the presence of a support person along with a support dog and handler. The Crown also seeks a provisional order permitting the Crown to tender the two video recorded statements of the complainant as evidence at the trial pursuant to s. 715.1 of the Criminal Code.
(2) Voluntariness application: The Crown seeks an order permitting it to use Mr. Wasif’s January 26, 2022, statement during Mr. Wasif’s cross-examination (if he testifies).
(3) Seaboyer application: The Crown seeks to admit several Snapchat messages allegedly exchanged by the complainant and Mr. Wasif from May 2021 to July 2021. The Snapchat messages include messages related to “other sexual activity” that is not the subject of the charges. The police obtained the Snapchat messages by downloading data from the complainant’s phone. The complainant and her father consented to the police searching the complainant’s phone.
4As will be described in greater detail below, the Seaboyer application evolved over the course of the hearing and, as a result, also includes an application to admit some of the Snapchat messages despite the identified messages including discreditable conduct. The Crown also seeks a ruling that the evidence in relation to the June 17, 2021, offences may be relied upon as similar fact evidence in relation to the July 13, 2021, offences and vise versa.
5Mr. Wasif does not oppose any of the Crown’s applications.
6Mr. Wasif brings an application seeking to exclude evidence, including the Snapchat messages, pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms. Mr. Wasif argues that the police’s search of the complainant’s cell phone violated his rights as guaranteed under s. 8 of the Charter.
7For the reasons that follow, I grant the Crown’s applications and dismiss Mr. Wasif’s application.
Summary of facts
8The facts detailed below are not contested. I have summarized the facts in some detail because they are central to my findings on the Seaboyer application and Mr. Wasif’s Charter application.
9The complainant met the male, alleged to be Mr. Wasif, on a “dating app” called KinkD. KinkD is a “dating app” for Bondage, Discipline, Dominance, Submission, and Sadomasochism (“BDSM”). The person alleged to be Mr. Wasif and the complainant exchanged numerous text messages from May 2021 to July 2021.
10On July 13, 2021, the complainant and a male alleged to be Mr. Wasif met at a Food Basics grocery store near the complainant’s residence in Ajax. The male drove the complainant to a secluded green space, parked the car and told her to get out. The male and the complainant walked a distance to an isolated area.
11In the secluded area, the complainant alleges that the male grabbed her by the neck, squeezed her neck so she could not breathe and lifted her so that both her feet were off the ground. The male told the complainant that he could kill her and that no one would know. The male then moved the complainant to her knees and slapped her in the face. While holding the complainant by the hair, the male put his penis in her mouth, and moved her head back and forth. The male then bent the complainant over, pulled down her shorts and inserted his penis into her vagina. The male ejaculated into the complainant’s vagina and slapped her vagina.
12When the complainant tried to move or close her legs, the male forced them open and forcefully inserted his finger into her vagina. The male also took out a belt and struck the complainant across her buttocks. After he ejaculated, the male punched the complainant in the stomach. Following this incident the male drove the complainant back to the street beside the Food Basics, dropped her off and left the area.
13After returning home, the complainant told her sister and father that she was sexually assaulted by an unknown male. Her father took her to the hospital where a Sexual Assault Examination Kit was performed. Skin swabs were taken and submitted to the Centre of Forensic Sciences for analysis. Analysis of the swabs determined that it contained a male DNA profile that was suitable for comparison.
14Following her hospital examination, the complainant attended at a police station to report that she was sexually assaulted by a stranger while she was on a walk near her house. At this time, the complainant had not told her father nor the police that she believed that the person who had sexually assaulted her was the male she had been exchanging Snapchat messages with for a few months.
15On July 14, 2021, officers investigated the area identified by the complainant as the location of the sexual assault. When they failed to discover any evidence that a sexual assault had occurred at the location, the lead investigator, D.C. Danziel, asked the complainant and her father for permission to download the complainant’s cell phone data to determine the exact location of the attack. Before obtaining the phone and downloading its contents, D.C Dalziel went over the Durham Regional Police Service’s consent form and both the complainant and her father signed the form. The form includes the following terms:
I was the intended recipient of the received text messages
I understand that the Durham Regional Police Service is conducting a criminal investigation into a sexual assault.
I further understand that the device(s) may contain information the DRPS believes is relevant to this investigation.
I hereby consent to the examination of the devices(s) for the purpose of locating and analyzing the relevant information described in point # 5.
I understand that the process may involve the copying of all the information contained on the device(s) which will then be examined to locate the relevant information described in point #5.
16Both the complainant and the complainant’s father gave the police consent and executed the consent form.
17A search of the phone revealed Snapchat messages between the complainant and “Masterm1925” whom the complainant had been messaging between May 26, 2021, and July 14, 2021. The messages also revealed that the complainant had previously met Masterm1925 on June 17, 2021.
18As a result of this discovery, D.C Dalziel conducted a second interview of the complainant on July 22, 2021. During the second interview, the complainant explained that the July 13th sexual assault occurred as she had told the police during her first interview, but the assailant was the not a complete stranger, and the location of the sexual assault was different from what she described during her first interview.
19In the July 22nd interview, the complainant acknowledged that she met the Masterm1925 on KinkD and she had been communicating with him on Snapchat and text messages. The complainant also confirmed that the two were engaged in a dominant/submissive relationship and that she met Masterm1925 in person on June 17, 2021, and July 13, 2021. The complainant also told the police that Masterm1925 had told her to delete all messages on Snapchat and to cease communicating via Snapchat.
20With respect to the June 17th sexual assault, the complainant told the police that she met the male at a high school near her residence in Ajax. The male drove the complainant to a spot behind a building and told her to get into the back seat of the vehicle. The male joined her in the backseat and told her to get on her knees and then slapped her in the face. The male pulled his pants down, exposing his penis, and moved the complainant’s head toward it, trying to put his penis in her mouth. When the complainant did not open her mouth, the male used his hands to force her mouth open, then put his penis in her mouth. The male took of the complainant’s shorts and inserted his fingers inside her vagina. The complainant told the police that the sexual assault ended when the male received a phone call and told the complainant to put her clothes back on and drove her back to the high school.
21Following the second police interview, a further search of data downloaded from the complainant’s device was conducted. The data showed that there were text messages between the complainant and a specific phone number. The text messages were similar in nature to the Snapchat messages.
22On August 8, 2021, Homeland Security provided D.C Dalziel with the IP addresses that were used by the Snapchat account between July 15-21, 2021. On August 20, 2021, D.C. Danziel queried the IP address using “What is my IP Address”. Using this tool, D.C. Danziel determined that all but one of the IP addresses were from Rogers Cable or Rogers Wireless and from the Mississauga or Toronto area. The other IP address was from the Lancaster, England area.
23On September 20, 2021, D.C Dalziel applied for and was granted 2 production orders. The first was for Rogers Communication and was based on the IP addresses associated with the suspect’s Snapchat account. The second was for Textnow and was based on the phone number that the police believed the suspect had used to exchange text messages with the complainant.
24The report from Rogers included data in relation to a Rogers Cable Account, as well as a Rogers Wireless Account. The Rogers Cable Account was in the name of Qamar Wasif and was associated with a residence in Mississauga. The Rogers Wireless Account included a billing name of Sohaib Wasif and a username of Musab Wasif. The data also included a cell phone number (which matched the number obtained from the complainant’s phone).
25With this information, D.C Dalziel called the cell phone number and impersonated a Rogers employee. A male answered and confirmed that he was Musab Wasif, and that he had used the cell phone number for a few years.
26Based on this information, the police suspected that Mr. Wasif was the target of the investigation and decided to obtain a castoff DNA sample from Mr. Wasif.
27The police obtained a discarded cigarette from Mr. Wasif on December 28, 2021, which was submitted for testing. A DNA analysis report indicates that the donor of the DNA profile obtained from the cigarette cannot be excluded as the source of the male DNA profile that was previously recovered from the complainant’s skin swabs. The report also indicates that the results are estimated to be greater than one trillion times more likely that the DNA obtained from the complainant’s skin swab originated from the donor of the DNA obtained from the discarded cigarette than from an unknown person, unrelated to the donor.
28On December 10, 2021, D.C. Dalziel applied for a second production order for Rogers Communication. The production order was granted, and the records received from Rogers demonstrate that on June 17, 2021, the cellphone number believed to be used by Mr. Wasif accessed a cell tower near the high school in Ajax. The records also demonstrate that on July 13, 2021, the cellphone number believed to be used by Mr. Wasif accessed a cell tower near the Food Basics in Ajax.
29On January 26, 2022, Mr. Wasif was arrested, and a cellphone was seized incident to his arrest. At the time of his arrest, Mr. Wasif was advised of his rights to counsel and was given a caution and secondary caution. After speaking to duty counsel, D.C. Dalziel interviewed Mr. Wasif for approximately two and a half hours. The statement is audio and video taped.
30On February 11, 2022, D.C Dalziel applied for and was granted an authorization to search and preserve the data located on the cellphone seized during Mr. Wasif’s arrest. On February 17, 2022, D.C. Dalziel applied for and was granted authorization to take a DNA sample from Mr. Wasif for forensic DNA analysis.
The Crown’s testimonial aids applications
31The Crown’s CCTV application and support person/dog application are brought pursuant to s. 486.2 and s. 486.1 of the Criminal Code.
32Subsection 486.2(2) of the Criminal Code applies to the Crown’s request for the complainant to testify via CCTV. Subsection 486.2(3) lists the factors a court ought to consider when determining whether to make an order.
33Pursuant to ss. 486.2(2), the Crown must establish, on a balance of probabilities, that permitting the complainant to testify via CCTV video would facilitate her giving of a full and candid account of the facts relating to the charges or will otherwise be in the interest of the proper administration of justice (R. v. D.A.L., 2024 ONSC 5079, at para. 31). In the context of s. 486.2(2), “facilitate” means “make easier” (D.A.L., at para. 30).
34Subsection 486.1(2) of the Criminal Code applies to the Crown’s request that the complainant testify in the company of a support person, support dog and handler.2 Again, the Crown bears the burden to establish that permitting the complainant to testify in the presence of a support person and support dog will facilitate her giving a full and candid account of the underlying events or will otherwise be in the interest of the proper administration of justice. Subsection 486.1(3) lists the factors to be considered when determining whether to make an order and are the same factors enumerated in ss. 486.2(3).
35The Crown has met its burden. The record satisfies me that allowing the complainant to testify by CCTV and in the presence of a support person, support dog and handler will facilitate the giving of a full and candid account of the events at issue.
36In coming to this conclusion, I recognize that the complainant is now an adult and is presumptively able to testify in open court (see R. v. Q.T.D., 2023 ONSC 4628, at para. 22). Nevertheless, I find that the following factors militate in favour of granting the relief sought:
(1) Age of the witness. The complainant was a minor at the time of the offences and is now 18 years old. Her young age favours permitting her to testify by way of CCTV and in the presence of a support person, support dog and handler (R. v. Charette, 2023 ONSC 6842, at para. 12).
(2) The nature of the offence. This factor strongly supports the orders sought by the Crown. Sexual assault charges require the complainant to address matters of a very intimate or personal nature. Testifying on these matters is likely to cause the complainant to feel discomfort, embarrassment, and traumatization. In turn, this makes testifying on these matters more difficult to address in the presence of strangers and in the courtroom (R. v. C.D., 2021 ONSC 6995, 76 C.R. (7th) 131, at para. 46; and R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 33).
In this case, the complainant will be required to recount events wherein she was violently physically assaulted while being forced to perform sexual acts. As part of the context for how she met the man that sexually assaulted her, the complainant will be required to explain that she met the perpetrator on a BDSM dating app when she was 14-years-old. Certainly, this evidence will cause her discomfort and will be embarrassing. Testifying in open court about these issues may cause her to be further traumatized.
(3) Any other factor that the court considers relevant. I find that the dominant/submissive dynamic between the complainant and the person alleged to be Mr. Wasif weighs in favour of granting the orders sought. This does not rise to the level of a specific threat that supports a conclusion that the complainant needs to be protected or requires security, but the complainant is expected to give evidence about this sensitive and difficult subject matter to the jury. I find that giving this evidence in the absence of the person alleged to have been her “dominant” and with a support person, a support dog and handler will facilitate the giving of a full and candid account.
(4) Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. Courts have recognized that permitting a complainant to testify outside of the courtroom in appropriate circumstances can have the desired effect of encouraging the reporting of offences, particularly in sexual assault cases (D.A.L., at para. 37(f)). While this factor supports the Crown’s application, I do not find this factor to be as strong as the first three factors as it is a general consideration that applies to all sexual assault cases (D.A.L., at para. 37(e)).
37Finally, other courts have taken judicial notice of the value of support dogs as a testimonial aide (see S.Q.; Roper). These decisions have described the general psychological and physiological benefits of support dogs. Relying on S.Q. and Roper, I find that a support dog will likely be comforting to the complainant who was a dog owner herself.
38In light of the above, I grant the Crown’s testimonial aids applications.
The Crown’s s. 715.1 application
39Section 715.1 (1) of the Criminal Code is a statutory exception to the hearsay rule. This section permits an out-of-court statement to be admitted at the trial of certain enumerated offences provided the following criteria are met: (1) The complainant was under 18 years of age at the time of the offence; (2) the video was made within a reasonable time following the alleged offence; (3) the complainant describes the acts complained of; and (4) while testifying, the complainant adopts the contents of the video.
40Even where the s. 715.1(1) requirements are satisfied, the court has the discretion to rule the statement to be inadmissible if it finds that admitting the statement would interfere with the proper administration of justice, including where the questioning of the complainant was so suggestive that it rendered the videotaped statement of little or no value (see R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225 (Ont. C.A.), at paras. 64-65).
41Subject to the complainant adopting her July 13th and July 22nd video taped statements, I grant the Crown’s application. The statutory pre-conditions for admission have been met: (1) Mr. Wasif has been charged with enumerated offences; (2) the complainant was 14-years-old at the time of the offences; (3) the two videotaped statements occurred within a reasonable time after the incidents that are the subject of the charges; and (4) in the two statements, the complainant describes acts that make up the subject of the charge.
42I find that the admission of the video recordings in evidence would not interfere with the proper administration of justice. While there are some minor instances of leading questions being asked by the interviewing officer (primarily in the second interview), the transcripts demonstrates that the questioning of the complainant was not impermissibly suggestive.
The Crown’s voluntariness application
43A statement by an accused to a person in authority “will not be admissible if it [was] made under circumstances that raise a reasonable doubt as to voluntariness” (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 68). The onus is on the Crown to prove the statement was voluntary beyond a reasonable doubt (Oickle, at para. 30). The factors to be considered in this analysis include threats and promises made to the accused, oppression, the operating mind of the accused and police trickery.
44The Crown has established, beyond a reasonable doubt, that Mr. Wasif’s January 22, 2022, statement was voluntary. The transcript of Mr. Wasif’s statement makes it clear that: (a) he was not oppressed; (b) he had an operating mind; and (c) at the time of his arrest and following his arrest, the police did not use “trickery” to elicit the statement. As such, the Crown may use Mr. Wasif’s January 26, 2022, statement for the purpose of cross-examination, should he testify.
The Seaboyer /prior discreditable conduct/similar fact evidence application
45The Crown initially sought an order to lead evidence on the Snapchat messages between the complainant and the person alleged to be Mr. Wasif and to lead viva voce evidence regarding the content of the Snapchat messages. The Crown brought a Seaboyer application because some of the Snapchat messages include discussion of activities that are likely “other sexual activity” that is not the subject of the charges.
46The Snapchat messages are 187 PDF pages in length. They include, amoungst other things, benign messages, messages that relate to “other sexual activity”, messages that relate to the complainant’s age and messages that relate to the sexual activity at issue (i.e. the sexual assaults on June 17th and July 13th). Some of the messages include statements that a reasonable person would look at with disapproval.
47Concerned about the possibility of discreditable conduct evidence being presented to the jury and issues arising at trial about the use of specific messages, I asked the Crown to specify which messages she intended to lead into evidence and the basis of the admission for each exchange.
48The following day, the Crown and counsel for Mr. Wasif identified specific Snapchat messages that the Crown could lead into evidence and obtain viva voce evidence on from the complainant and Mr. Wasif, if he chooses to testify. Appended as Schedule A and B to this decision is the time stamps for the Snapchat messages the Crown intends to lead at trial.
49Schedule A includes messages that are admissible on the basis that they relate to the offences charged and/or they do not relate to “other sexual activity” that is not the subject of the charges. The Crown does not require leave of the court to lead this evidence at trial.
50Schedule B relates to messages that include evidence of “other sexual activity” that is not the subject of the charges. These messages also include statements by the person alleged to be Mr. Wasif that amounts to discreditable conduct.
51The Crown also seeks a ruling that the evidence in relation to the June 17, 2021, offences may be relied upon as similar fact evidence in relation to the July 13, 2021, offences and vice versa.
(i) Governing Legal Principles
52Subsection 276(1) of the Criminal Code provides that evidence of sexual activity, broadly defined to include communications, outside the conduct that forms the subject matter of the offence, is inadmissible to support the twin myths (a sexually experienced female is more likely to consent to sexual activity, and/or is less credible).
53While the Crown is not subject to the procedural requirements of ss. 276.1 and 276.2, the Supreme Court of Canada has directed that the spirit of the regime, but not necessarily the letter, should apply to all evidence of other sexual activity (R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 80; R v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 142; R.V., at para.78; R v. J.J, 2022 SCC 28, at para. 74).
54On a Seaboyer application, the Crown must establish, on a balance of probabilities, that the evidence sought to be admitted is not being proffered to support the twin myths and the probative value of the proposed evidence outweighs the prejudicial effect (R. v. Seaboyer, 1991 CanLII 76 (SCC) at para.99).
55The governing legal framework for discreditable conduct was set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. In that decision, the Supreme Court of Canada confirmed that evidence of the accused’s discreditable conduct which are extrinsic to the charges on the indictment, are presumptively inadmissible because of the danger that a trier of fact will convict the accused simply because they believe them to be a person of “bad character” (R. v. Chizanga, 2024 ONCA 545, 172 O.R. (3d) 241, at para. 24, aff’d 2025 SCC 9).
56This presumption of inadmissibility is not absolute. Depending on the purposes for which the evidence is proffered and the strength of the inferences that can be drawn from it, the probative value of the evidence may exceed any prejudicial effect it may have. In such circumstances, “propensity evidence” is nevertheless properly admitted because it goes beyond showing a mere general disposition of the accused and is more probative than prejudicial in relation to a live issue at trial (Handy, at para. 1).
57The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make; and (c) the materiality of the evidence (R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 98).
58After assessing the probative value of the evidence, a judge must balance it against the "moral prejudice" and "reasoning prejudice" that is associated with propensity evidence. Moral prejudice refers to the risk that the jury may convict the accused on the basis of "bad personhood" (R. v. McDonald, 2017 ONCA 568, 39 C.R. (7th) 344, at para. 83; Handy, at paras. 31, 71, 100, and 139). On the other hand, reasoning prejudice relates to the concern that the jury will give the evidence more weight than is logically justified (Z.W.C., at para. 103).
59On multi-count indictments, evidence from one count can only be used on another if the test for the admission of similar fact evidence is met (see R. v. Tsigirlash, 2019 ONCA 650 at para. 25; R. v. Nolan, 2019 ONCA 969, 150 O.R. (3d) 647, at para. 35).
60Whether viewed under the lens of Seaboyer or Handy, ultimately my task is to weigh the probative value of the evidence sought to be produced as against the prejudicial effect.
(ii) Application of Governing Principles
61The Crown’s theory of the case is simple. Masterm1925 is the male that met the complainant on June 17th and July 13th. The Snapchat messages depict a dominant/submissive relationship wherein Masterm1925 threatens to commit acts of violence against the complainant if she disobeys his commands. The messages also demonstrate that Masterm1925 arranged to meet the complainant on June 17th and July 13th.
62The Crown will seek to prove that Masterm1925 is Mr. Wasif. The Crown will point to the following: (a) Mr. Wasif is the user of the phone number the text messaged the complainant; (b) Mr. Wasif is linked to the Rogers wireless account that is associated with IP addresses used by Masterm1925; and (c) Mr. Wasif’s DNA cannot be excluded as the donor of the DNA obtained from the complainant’s skin swab.
63Based on the Crown’s theory, there will be at least three central issues at trial: (1) the identity of Masterm1925; (2) the identity of the person who met the complainant on June 17th and July 13th; and (3) the credibility and reliability of the complainant. These are the “live issues” that I use to assess the probative value of the Schedule B messages.
64The Crown argues that the Schedule B messages are probative and relevant to identity, the actus reus and mens rea of the offence, and narrative. I agree. Whether evaluated under the “other sexual activity” framework or the “discreditable conduct” framework, the Schedule B messages have a high probative value. I come to this conclusion for three reasons.
65First, the Schedule B messages have a highly probative value with respect to identity. The messages make it more likely that Masterm1925 is the perpetrator of the June 17th and July 17th offences. This evidence along with the evidence linking Mr. Wasif to the Masterm1925 account is strong evidence that Mr. Wasif is the man who met the complainant on June 17th and July 13th.
66I recognize that using the messages to establish identity requires a higher degree of connectivity and similarity (see Tsigirlash, at para. 31). In this case, the high degree of connectivity and similarity is established.
67In the message exchange between May 26, 2021, at 11:07 a.m. and 1:02 p.m., Masterm1925 suggests that he intends to punish the complainant if she is disobedient. In this exchange, Masterm1925 sent a picture to the complainant and describes the picture as an example of the type of punishment Masterm1925 will subject the complainant to if she disobeys him.3 This exchange occurs just over 3 weeks prior to the June 17th incident. A day later, on May 27, 2021, between 8:45 p.m. and 8:53 p.m., Masterm1925 again threatens to punish the complainant if she does not obey his commands. When the complainant asks how she will be punished, Masterm1925 responds that she will be punished by spanking, whipping, and slapping. When the complainant responds that she enjoys this type of punishment, Masterm1925 responds, “I am going to make you cry and beg me to stop but I won’t stop” and, “I will leave marks all over your body”.
68The exchange between Masterm1925 and the complainant on June 30, 2021, between 2:52 a.m. and 2:57 a.m. also includes threats if the complainant disobeys. This exchange occurred just 13 days before the July 13th incident.
69If the trier of fact accepts that Mr. Wasif is Masterm1925, then it makes it more likely that he is the man who met the complainant on June 17th and July 13th and committed the offences listed in the indictment. The threats of “spanking”, “whipping” and “slapping” are very similar to the complainant’s anticipated evidence that she was slapped (on the face and vagina), whipped (with a belt) and punched during the assaults on June 17th and July 13th.
70Second, the messages in Schedule B are highly probative of motive and animus toward the complainant. The complainant and Masterm1925 were in a dominant/submissive relationship and Masterm1925 was exerting more and more control over the complainant and threating consequences, including physical violence, if the complainant disobeyed him. This evidence, if accepted by a trier of fact, may be evidence of motive or animus toward the complainant. This is relevant to the actus reus and mens rea of the offences, especially assault, assault with a weapon and uttering threats (R. v. M.R.S., 2020 ONCA 667, at para. 81).
71Third, the Schedule B messages are admissible as part of the narrative. The Schedule B messages provide background context in which the sexual assaults and assaults occurred (Z.W.C., at para. 108; and Nolan, at paras. 42-43).
72I turn now to balancing the probative value of the Schedule B messages as against the prejudicial effect of the admission of the messages.
73From the perspective of the “other sexual activity” evidence, there is little to no prejudicial effect. At the trial, the jury will be provided clear instructions that the Schedule B messages cannot be used to support the twin-myths.
74As noted above, the Schedule B messages include statements from the person alleged to be Mr. Wasif that a reasonable person would disapprove of (R. v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at para. 15). As such, I must examine the moral and reasoning prejudice caused by the admissions of these Snapchat messages.
75The messages between Masterm1925 and the complainant do not paint Mr. Wasif in a positive light. They reflect a person who demeans and threatens violence against a young girl who Masterm1925 knew to be 14-years-old. The risk of moral prejudice is significant. That said, the moral prejudice can be addressed with an appropriate mid-trial instruction and final instructions to the jury on the appropriate use of the Schedule B messages (R. v. Jackman, 2023 ONCA 99, at para. 22).
76I find that the concern of reasoning prejudice is low because: (a) the jury will be told what use they can make of the Schedule B messages and told how to avoid reasoning prejudice; and (b) the Schedule B messages have been circumscribed to 4 exchanges over the course of 3 days. The messages are not lengthy nor is the subject matter complicated. I find that there is only a minimal concern that this evidence will distract the trier of fact from its proper focus on the charges before the court.
77In the ultimate balancing of probative value versus prejudicial effect, I find that the probative value of the evidence significantly outweighs the prejudicial effect of admitting the evidence. As a result, the Schedule B messages are admissible for the purposes identified above.
78I also grant the Crown’s cross-count similar fact evidence application.
79The two counts are very similar in nature and, as a result, are highly probative to the identity of the perpetrator. I come to this conclusion for the following reasons: (1) the sexual assaults were just under a month apart; (2) the complainant is the same in both sexual assaults; (3) just prior to each sexual assault, the complainant messaged Masterm1925 and arranged to meet; (4) after the sexual assaults, the complainant and Masterm1925 messaged about the incidents; (5) both incidents involved a male taking the complainant to a secluded location to be sexually assaulted; (6) both sexual assaults involved forced fellatio and digital penetration of the complainant’s vagina; and (7) both sexual assaults involved additional physical violence, although the violence was different on each occasion.
80On the last two points, I note that when considering similarities and dissimilarities of incidents of alleged sexual assault or assault, dissimilarities in detail should not be overemphasized. Focusing on the dissimilarities runs the risk of failing to appreciate the broader similarities in the substance of the incidents (R. v. J. M., 2010 ONCA 117, 73 C.R. (6th) 78, at paras. 3-4 and 91; R. v. S.C, 2018 ONCA 454 at para. 23; R. v. Eze, 2022 ONSC 277, at para. 142). In this case, the broader similarities far outweigh the dissimilarities.
81Finally, I find that the moral prejudice and reasoning prejudice caused by granting the cross-count application is significantly limited given that the evidence at issue is intrinsic to the indictment and the limiting instructions that will be provided. As such, I find that the probative value of the cross-count evidence significantly outweighs the prejudicial affect of the admission of this evidence.
Mr. Wasif’s section 8 application
(i) The Defence and Crown position
82Mr. Wasif argues that he has a privacy interest in the Snapchat messages exchanged with the complainant. If accepted, Mr. Wasif argues that the subsequent warrantless search of the complainant’s phone was unreasonable, and any evidence obtained from the data seized on the complainant’s cell phone must be excluded pursuant to s. 24(2) of the Charter. Mr. Wasif also argues that the evidence obtained from the three production orders, the DNA results from the discarded cigarette, the DNA results from the sample taken from Mr. Wasif and the results of the search of the phone seized during Mr. Wasif’s arrest, should also be excluded as “fruits of the poisoned tree”.
83The Crown agues that s. 8 is not engaged. The Crown also argues several cascading alternative positions: (1) if s. 8 is engaged, then Mr. Wasif does not have a reasonable expectation of privacy over the Snapchat messages retrieved from the complainant’s phone; (2) if Mr. Wasif has standing to assert a s. 8 violation, then the search of the complainant’s cell phone was reasonable because the police obtained consent; and (3) if Mr. Wasif’s s. 8 rights were violated, the evidence should not be excluded pursuant to s. 24(2).
(i) Is s. 8 engaged?
84I start by noting that neither the Supreme Court of Canada nor the Ontario Court of Appeal have conclusively held that s. 8 will not be engaged when a citizen volunteers electronic communications to the police as evidence of a crime (R. v. P.M., 2025 ONCA 208, at paras. 49-57).
85There are several decisions from this court that have found that s. 8 is not engaged where a complainant or their guardian provides the police with electronic communications as evidence of a crime (see for example: R. v. Morgan, [2020] O.J. No. 2330 (Ont. C.J.), at paras. 48-50; R. v. Amdurski #4, 2022 ONSC 1338, at paras. 20-44; R. v Konashewych, 2023 ONSC 3948, 531 C.R.R. (2d) 304, at para. 70; R. v. Bridle, 2023 ONSC 1259; R v CT, 2023 ONSC 286, at para. 48).
86The approach taken by my learned colleagues is consistent with dicta from the Ontario Court of Appeal and the Supreme Court of Canada which have questioned whether s. 8 is engaged when a victim or whistleblower voluntarily provide the police with evidence of a crime (see Doherty J.A.’s obiter comments in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 40 C.R. (7th) 379, at paras. 39-42; Karakatsanis J.’s concurring decision in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at paras. 40-42; Karakatsanis J.’s obiter comments in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; and Moldaver J.’s dissenting decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 174-176).
87The above noted decisions from this court offer strong authority for the Crown’s position that s. 8 is not engaged; however, these decisions are distinguishable. The decisions address circumstances where a victim of a crime volunteers electronic communications to the police. In those circumstances, the concerns raised by Doherty J.A. in Orlandis-Habsburgo, Karakatsanis J. in Reeves and Moldaver J. in Marakah are front and centre.
88In this case, neither the complainant nor her father offered the police the Snapchat messages. As noted above, the complainant first told her father and the police that she was sexually assaulted by an unknown male. While the police obtained the necessary consents, this is not a case where the complainant or her father volunteered the Snapchat messages as evidence of a crime. Rather, the police sought consent to further investigate a crime and believed that the complainant’s cell phone would have data that would assist the investigation. In this context, I find that s. 8 is engaged.
(ii) Does Mr. Wasif have standing?
89In evaluating whether Mr. Wasif has the required standing to raise a s. 8 violation, I am guided by four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Marakah, at para. 11; R. v. Bykovets, 2024 SCC 6, at para. 31; R. v. Campbell, 2024 SCC 42, at para. 39; R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 22).
90In the reasons that follow, I will assume that Mr. Wasif is Masterm1925 even though this is not conceded. To be clear, I have not made any such finding. This will be an issue for the trier of fact to decide. I only make this assumption because it is a necessary pre-condition to Mr. Wasif’s claim for standing and for ease of reading.
(iii) What is the subject matter of the search?
91With respect to the first line of inquiry, the subject matter of the search is an electronic conversation between Mr. Wasif and the complainant (Marakah, at para. 17).
(iv) Does Mr. Wasif have a direct interest in the subject matter?
92In determining whether a claimant has a direct interest in an electronic communication, it does not matter whether the subject matter is incriminating. The focus is on whether the individual has a meaningful connection to the subject matter through participation, authorship, ownership or control (R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, at para. 117; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 31; Marakah, at para. 21; Reeves, at para. 32; Mills, at para. 16).
93I find that Mr. Wasif has a direct interest in the subject matter. Mr. Wasif was a participant in the electronic conversation and the author of several Snapchat messages that the Crown will rely on at trial (see Marakah, at para. 20; Reeves, at para. 32; Mills, at para. 16).
(v) Does Mr. Wasif have a subjective expectation of privacy over the electronic communications?
94A Charter claimant does not face a “high hurdle” to establish a subjective expectation of privacy (Marakah, at para. 22; Campbell, at para. 45). The claimant’s burden does not require them to file affidavit evidence or provide viva voce evidence confirming their expectation and the basis of that expectation (Jones, at para. 21; Campbell, at para. 45). As such, the fact that Mr. Wasif did not file an affidavit or testify is not fatal to his assertion of standing. I must review the record to determine whether Mr. Wasif’s subjective expectation of privacy can be inferred.
95There are two factors that pull toward a finding that Mr. Wasif has a subjective expectation of privacy in the electronic communications. First, Mr. Wasif is alleged to have told the complainant to delete the messages. Second, the content of the communications.
96The first factor has been relied upon by the Supreme Court of Canada to support a subjective expectation of privacy. In Marakah, McLachlin C.J. found that Mr. Marakah had a reasonable expectation of privacy over text messages that were seized from his accomplice’s cell phone. The messages at issue related to an illegal firearms transaction. McLachlin C.J. found that the accused had a subjective expectation of privacy because the accused testified that he expected the accomplice to keep the electronic communications private and he repeatedly told the accomplice to delete the messages (para. 23).
97The same reasoning favours a finding that Mr. Wasif has a subjective expectation of privacy. The Crown resists this and argues in favour of Molloy J.’s approach in Amdurski. In that case, Molloy J. made a compelling case for why McLachlin C.J.’s finding in paragraph 23 is distinguishable from a situation where an adult messages a child for the purpose of facilitating a sexual offence against the child.
98In Amdurski, Molloy J. decided that an accused did not have a subjective expectation of privacy in respect of text messages he sent to a 13-year-old girl he was allegedly trafficking. In that case, the complainant’s mother located text messages on the complainant’s phone that suggested that her daughter was being trafficked. The mother called the police and when the police arrived at her home, the mother showed the police the text messages. In her statement to the police, the complainant told the police that the accused had instructed her to delete his contact information and any messages between them from her phone. In finding that the accused did not have a subjective expectation of privacy, Molloy J. distinguished Marakah for two reasons.
99First, the communications in Marakah were between two adults engaged in criminal activity. In Amdurski, the accused was messaging a victim (para. 53). Second, and more importantly, the complainant in Amdurski lived at home with her mother and while the complainant told the accused that she was 17 or 19 years old, the complainant barely looked 13-years-old. In these circumstances, Molloy J. found that the accused could not have believed that the complainant was an adult and could not have believed that a child would delete the messages as instructed by the accused (para. 54).
100The facts that Molloy J. relied upon to distinguish Marakah apply with equal, if not greater, force to the case before me. Unlike the situation in Amdurski, the complainant did not lie about her age. The complainant told Mr. Wasif that she was 14-years-old and appears to have sent Mr. Wasif a picture to confirm her age.4Based on the exchange, it appears Mr. Wasif accepted that the complainant was being truthful about her age.
101Mr. Wasif has a subjective expectation of privacy over the Snapchat messages on the complainant’s cell phone because of the nature of the communication at issue. Mr. Wasif knew that he was luring the complainant into a sexual relationship and, if discovered, he would be punished. In one Snapchat exchange with the complainant, Mr. Wasif suggests that he could go to “jail” if discovered. In response, the complainant tells Mr. Wasif that no one will find out.
102When he was messaging the complainant, Mr. Wasif was, at minimum, trying to facilitate the commission of a crime. The communications themselves may have been sufficient to justify a child luring charge (see s. 172.1(1)(b) of the Criminal Code). By asking the complainant to delete the messages he was trying to keep his criminal conduct away from prying eyes.
103In my view, this is sufficient to clear the “not high” hurdle of establishing a subjective expectation of privacy. This approach is also consistent with Brown J.’s decision in Mills where he found that an accused had a subjective expectation of privacy over Facebook messages and emails exchanged with an undercover police officer posing as a 14-year-old girl because “avoiding detection will be a priority” in these types of communication and the accused had repeatedly asked the fictitious girl to delete their messages (see paras. 17-19).
104While it is a close call, I find that Mr. Wasif has a subjective expectation of privacy over the electronic communications.
105The distinguishing facts identified by Molloy J. play a more prominent role in evaluating the reasonableness of Mr. Wasif’s expectation of privacy. When evaluating whether an accused has a subjective expectation of privacy over electronic communications with a child, I believe that the court’s focus should be on the content of the communications and whether the accused actions are consistent with not having the communications shared with others.
(vi) Is Mr. Wasif’s subjective expectation of privacy objectively reasonable?
106There is no closed list of factors relevant to whether a claimant’s subjective expectation of privacy is objectively reasonable (Campbell, at para. 53). On this application, the most relevant factors are:
(i) whether the information would tend to reveal intimate or biographical details of the lifestyle and personal choices of the individual subject to the alleged search;
(ii) the place where the alleged search took place;
(iii) whether the information was subject to an obligation of confidentiality;
(iv) whether the police technique was intrusive in relation to the privacy interest;
(v) control over the messages
(see Campbell at para. 53; Marakah, at para. 24)
107Of these factors, only the first favours an objectively reasonable expectation of privacy. While the messages at issue do not reveal Mr. Wasif’s age, name, address or occupation, the messages do provide details of Mr. Wasif’s lifestyle and personal choices.
108Mr. Wasif relies heavily on the Supreme Court of Canada’s decision in Marakah and Campbell in support of his position that he has an objectively reasonable expectation of privacy in the Snapchat messages. In these cases, the Supreme Court found that an accused had a reasonable expectation of privacy over electronic communications located on another person’s cell phone.
109There are two interrelated reasons why I believe Marakah and Campbell do not compel me to find that Mr. Wasif’s subjective expectation of privacy is objectively reasonable.
110First, the Supreme Court of Canada has repeatedly recognized that there is no automatic rule of standing for electronic communications. Whether an individual has a reasonable expectation of privacy in an electronic communication that is located on another person’s device must be assessed on the specific facts of the case (Marakah, at para. 5). In Campbell, Jamal J. reiterated that there is no automatic rule of standing for electronic communications and that the reasonable expectation of privacy must be assessed based on the “totality of circumstances” (Campbell, at para. 40). These decisions confirm that not every search of electronic messages will give rise to an objectively reasonable expectation of privacy.
111Second, the “totality of the circumstances” in this case are significantly different from the “totality of circumstances” in Marakah and Campbell. In Marakah and Campbell, the electronic communications at issue were between two adults, both of whom were engaged in illegal activity.
112In this case, the complainant is 14-years-old and her father provided her with a phone. Mr. Wasif, who was twenty years old at the time of the offences, was communicating with a person who was effectively a stranger to him, a girl he knew was 14-years-old. Based on his knowledge of the complainant’s age, it is reasonable to assume that Mr. Wasif would have known that the complainant could not contract with a cell phone provider herself and that her parents would have provided her with a cell phone. I infer from this that Mr. Wasif would reasonably understand that the complainant’s father, who he knew the complainant lived with, could access her phone. This understanding is supported by the complainant’s evidence that Mr. Wasif told her to delete the messages. Of course, there was no obligation of confidentiality between the complainant and Mr. Wasif nor the complainant’s father and Mr. Wasif.
113Recently, in very similar circumstances, the Ontario Court of Appeal upheld an application judge’s finding that an accused did not have an objectively reasonable expectation of privacy over text messages located on two cell phones used by his 10-year-old niece (P.M.).
114In P.M., Copeland J.A. found that the application judge made no error in concluding that the accused did not have an objectively reasonable expectation of privacy over the text messages located on a child complainant’s phone because: (a) given the child’s age, a reasonable person would know that the child could not contract for a cell phone and that the phone would have been provided by her parents; (b) it was reasonable to conclude that the complainant’s parents would exercise control over the complainant’s phones, as evidenced by the accused asking the complainant to delete messages; (c) there was no obligation of confidentiality; and (d) any subjective expectation of privacy was not objectively reasonable in light of the societal interest in protecting children from sexual offences facilitated by electronic communication (paras. 31-33 and 39).
115A similar result was arrived at in R. v. Knelsen, 2024 ONCA 501, 559 C.R.R. (2d) 331, leave to appeal refused, [2024] S.C.C.A. No. 369. In that case, the Ontario Court of Appeal found that an accused did not have a reasonable expectation of privacy in text messages found on the child complainant’s phone. In writing for a unanimous court, van Rensburg J.A. found that any subjective expectation of privacy the accused had was not objectively reasonable given the nature of the relationship at issue (a child and an adult who were practically strangers) and the societal interest in protecting vulnerable children (paras. 51-60).
116In reaching this conclusion, van Rensburg J.A. also found that the complainant’s consent to share the texts with police was relevant because “[i]t should come as no surprise to someone communicating for a sexual purpose with a child they had met only once, that such messages could readily be shared, including with the police” (para. 60). As an alterative basis for finding no reasonable expectation of privacy, van Rensburg J.A held that the accused did not have a reasonable expectation of privacy in the text messages because the texts were sent to the complainant “to further the commission of the offences of sexual assault and sexual interference” (paras. 62-65).
117In addition to P.M. and Knelson, decisions from this court have similarly found that the nature of a relationship between an adult and child complainant plays a pivotal role in determining the reasonableness of an accused’s subjective expectation of privacy over communications with a child complainant (see Amdurski, at paras. 56-80; R. v. Patterson, 2018 ONSC 4467, 417 C.R.R. (2d) 118, at paras. 25-28; R. v. K.A., 2022 ONSC 1241, at paras. 44-65).
118In my view, the above noted decisions confirm two important principles. First, the nature of the relationship between an adult who seeks to exploit a child through electronic messages gives rise to certain factual inferences that work against a finding of an objectively reasonable expectation of privacy. This relationship is what distinguished these cases from Marakah and Campbell. Second, an accused’s subjective expectation of privacy must be evaluated in the context of the important societal interest in protecting vulnerable children from sexual exploitation.
119When an adult knows they are communicating electronically with a child, they reasonably understand that the child is too young to contract with a cell phone provider and that their parents have obtained the phone for them. This gives rise to a reasonable inference that the child’s parents have control and access to the phone. These inferences are confirmed in some cases because the accused tells the complainant to delete messages (recognizing someone else may have access to the phone) and because the parents take the phone to the police or give the police consent to search the child’s phone (demonstrating that a child does not have the same level of control over their phone that an adult has). The same line of reasoning applies to the facts of this case and work against Mr. Wasif’s assertion of an objectively reasonable expectation of privacy.
120Mr. Wasif argues that this case is significantly different from P.M., Knelsen and Amdurski because in those decisions, the police knew the identity of the accused before they did a search of the complainant’s phone. In this case, the police had no reason to believe that the complainant’s cell phone would assist in determining the identity of the offender.
121Mr. Wasif argues that this factual difference is important and relies on paragraph 39 of Copeland J.A.’s decision in P.M. and paragraph 58 of van Rensburg J.A.’s decision in Knelsen. For ease of reference, I reproduce both:
39Although the complainant and the accused in Knelsen were “practically strangers who had met only once” (at para. 58), I do not see that as a basis to distinguish this case from Knelsen on the first branch of the Knelsen analysis. As in Knelsen, when the police received the cell phones and conducted the data extraction, they knew the child complainant alleged the appellant had used text messages to facilitate sexual abuse of her. Given her age, an objective observer would anticipate that her parents would have access to and ultimate control over her phones. As in Knelsen, the fact that the phones were provided to police with consent also supports the conclusion that the appellant did not have a reasonable expectation of privacy in the texts. Any subjective expectation of privacy was not objectively reasonable in the circumstances, in light of the societal interest in protecting children from sexual offences facilitated by electronic communications.
58I conclude therefore that, based on what the police knew before they accessed the text messages about the nature of the relationship between the complainant and the appellant (that they were practically strangers who had met only once) and the circumstances surrounding it (that the appellant knew the complainant was a child and he was communicating to arrange to meet for sex), there was no reasonable expectation of privacy in the text messages. Any subjective expectation of privacy the appellant might have had in the messages he was exchanging with the complainant was not objectively reasonable given the totality of the circumstances and the important societal interest in protecting vulnerable children from sexual exploitation.
122There is no doubt that the police’s knowledge of the alleged perpetrator in P.M. and Knelsen was relevant to the Court of Appeal’s finding that there was no reasonable expectation of privacy. There is also no doubt that this factor is absent in this case. The absence of this factor, however, does not mean that an objectively reasonable expectation of privacy exits in the context of an adult messaging a child for the purpose of facilitating a sexual assault. These relationships give rise to the factual inferences identified above and those inferences are incompatible with an objectively reasonable expectation of privacy. The factual inferences exist independent of the police’s state of knowledge.
123In addition to the nature of the relationship, I also find that the investigative technique used by the police favours a finding that Mr. Wasif had no reasonable expectation of privacy. The police technique in this case was minimally intrusive. While the police were originally looking for geolocation data on the complainant’s phone, the evidence establishes that they reviewed and explained the consent form with both the complainant and her father. The consent form clearly indicates that the police would search the phone for any evidence in relation to the assault. The form also states that the police may copy all information contained on the cellphone which will then be examined to locate information relevant to the sexual assault investigation.
124Consistent with the consent, the police downloaded the phone’s data and found the Snapchat messages and other text messages. The police technique did not actively involve Mr. Wasif, nor did it exceed the bounds of the consent given by the complainant. This is not a situation like Campbell, where the police effectively tricked the accused to engage in a conversation with a person whom he believed to be a long-time acquaintance (Campbell, at para. 62-63).
125At paragraphs 47-50 of his factum, Mr. Wasif appears to argue that the consent obtained by the police was not valid. In support of this argument, Mr. Wasif relies on the Ontario Court of Appeal’s decisions in R v Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (Ont. C.A.), and R v Backhouse (2005), 2005 CanLII 4937 (ON CA), 28 C.R. (6th) 31 (Ont. C.A.), and the Supreme Court of Canada’s decision in R v Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145. I reject this argument for three reasons.
126First, the consent explicitly states that the complainant and her father were free to obtain legal advice before consenting and that they were not legally required to consent (see paragraphs 4,10 and 11). Second, the consent explicitly states that all the contents of the phone may be downloaded and searched. Third, the decisions Mr. Wasif relies upon all relate to waivers by an accused who has a Charter right at issue. Of course, the complainant and her father’s Charter rights are not at issue on this application. Even if the consent was invalid, this means that the complainant and her father’s Charter rights were violated. This does not assist Mr. Wasif.
127Finally, counsel for Mr. Wasif forcefully argues that a finding that he does not have a reasonable expectation of privacy is contrary to the “content neutral” principle of s. 8 (Campbell, at para. 50). I disagree. As detailed above, my decision is based on the nature of the relationship between Mr. Wasif and the complainant and, to a lesser extent, the relatively low intrusiveness of the police’s investigative technique. Examining the content of the Snapchat messages within the context of this relationship and determining what reasonable inferences flow from both is not the equivalent of finding that there is no reasonable expectation of privacy because the messages themselves are unlawful or were intended to facilitate a crime (R. v. K.A. and A.S.A., 2022 ONSC 1241 at para. 36; Mills, at paras. 25-26; Knelsen, at para. 52).
128In arriving at the above conclusion, I have not relied on what was described in Knelsen as an “exception” to a reasonable expectation of privacy where the communications obtained from a complainant’s phone are themselves a crime against the recipient (such an exception arising from Brown J.’s decision in Mills; see also R. v. Lambert, 2023 ONCA 689, at para. 60). I recognize that Jamal J.’s decision in Campbell has cast some doubt on whether an exception exists (Campbell, at para. 78).
129That said, there is certainly an attraction to the authorities that have found that an “exception” exists (see for example Knelsen, at paras. 62-67; Mills, at para. 30; Moldaver J.’s dissent in Marakah, at paras. 174-176; Cote J.’s dissent in Campbell, at paras. 202-203; Lambert, at para. 60).
130An “exception” appears to be consistent with the normative feature of s. 8 which recognizes that the protections afforded by the right are, “inevitably laden with value judgments about the sort of free and democratic society that reasonable and informed Canadians expect to live in, based on concerns about the long-term consequences of tolerating state intrusion into individual privacy” (Campbell, at para. 48; Patrick, at para. 27; Bykovets, at para. 52). As Copeland J.A. found in P.M.., “[d]ecisions considering when an individual has a reasonable expectation of privacy have also described this concept in terms of what expectations of privacy should be protected in a free, democratic, and open society, balancing the individual’s right to be left alone and the community’s interest in protection” (para. 55, emphasis in original). It is certainly not a stretch to assume that Canadians do not expect the Charter to protect an accused’s privacy over electronic communications located on a complainant’s phone when those messages were intended to facilitate the victimization of a child.
131Given my findings above, I do not have to wrestle with the difficult question of how one reconciles an “exception” with the “content neutral” approach of s. 8. I leave that for another day when the difficult task of reconciling the two approaches is necessary.
(v) Exclusion under s. 24(2)
132Given my findings above, I need not address another thorny issue: if Mr. Wasif has a residual reasonable expectation of privacy in the Snapchat messages, does the consent to search the complainant’s cell phone constitute a reasonable search. Neither the Supreme Court of Canada nor the Ontario Court of Appeal have conclusively decided this issue (P.M., at paras. 53-57; and Knelsen, at footnote 6).
133However, to complete a s. 24(2) analysis, I will assume that Mr. Wasif has a residual expectation of privacy in the Snapchat messages, and the warrantless search of the complainant’s phone was unreasonable. Even with these assumptions, I would not exclude the evidence detailed in paragraph 82 above.
134The first Grant factor, the seriousness of the Charter infringement, does not favour exclusion. When the police obtained and searched the complainant’s phone, the prevailing law in Ontario favoured the view that s. 8 is not engaged when evidence of a crime is volunteered to the police and/or an accused does not have a reasonable expectation of privacy over electronic communications located on a complainant’s phone (Mills; Patterson; and Morgan).
135While I have found that s. 8 is engaged in this case, the subtle difference between when evidence is volunteered as opposed to the police requesting consent to obtain evidence in furtherance of an investigation is, at best, a blurry line. Being on the wrong side of this blurry line is not evidence of bad faith.
136At the time the police received the complainant’s cell phone and when they performed the data extraction, they acted in compliance with the law in Ontario. The police’s understanding that they could proceed with the complainant’s consent and her father’s consent was clearly done in good faith. As such, a find that the Charter violation was not serious.
137The second Grant factor, the impact on Mr. Wasif’s Charter protected interests, moderately weighs in favour of exclusion. If Mr. Wasif had some residual expectation of privacy in the Snapchat messages, it was a reduced expectation of privacy (P.M., at para. 45). This suggests that the breach at issue minimally impacted Mr. Wasif’s Charter protected interests. Standing alone, I would have found that this impact did not strongly favour exclusion. In this case, however, the data obtained from the complainant’s cell phone was central to targeting Mr. Wasif. If the police did not have this data, then none of the production orders or authorizations would have been obtained and the police would not have known to target Mr. Wasif for a castoff sample. It is the cumulative effect of the search of the complainant’s phone and what followed afterwards that increases the impact on Mr. Wasif’s Charter protected interests.
138The third Grant factor, society’s interest in the adjudication of the case on the merits, strongly favours admission. The totality of the evidence sought to be excluded is essential to the Crown’s case. Without this evidence, it is difficult to see how the Crown has any case left. The evidence is highly reliable and can be used by the Crown to establish the central issue at the trial – the identity of the perpetrator of the sexual assaults.
139Weighing all these factors, I find that admitting the evidence would not bring the administration of justice into disrepute.
Conclusion
140I grant the Crown’s applications and dismiss Mr. Wasif’s application.
The Honourable Justice S. Mathai
Date: June 13, 2025
Footnotes
- This decision was released to parties on July 23, 2025. At that time, the decision could not be published pursuant to subsection 648(1) of the Criminal Code. Since that time, Mr. Wasif re-elected to a judge alone trial. As a result, the decision i.
- I note that some courts have found that s. 486.1(2) does not apply where the Crown seeks an order permitting a witness to testify with a support dog but without a dog handler as s. 486.1(2) only speaks to testifying with the aid of a “person” (see R. v C. W., 2016 ONCJ 649). In this case, the Crown is seeking an order to permit the complainant to testify in the presence of a support dog and its handler. As such, I am of the view that s. 486.1(2) applies (R v. Benjamin, 2018 ONSC 5070, at para. 9). That said, if I am wrong about the applicability of s. 486.1(2), then I rely on the court’s inherent jurisdiction to control its own process to permit the use of a support dog (see R. v. Roper, 2015 BCSC 2107, at para. 7; R. v. S.Q., 2023 ONCJ 295, at paras. 9-16.).
- The actual pictures were not included in the Snapchat messages downloaded from the complainant’s phone.
- Again, the picture was not included in the Snapchat messages downloaded by the police.