COURT FILE NO.: 21-15576

DATE: 2025/07/29

BETWEEN:

HIS MAJESTY THE KING

– and –

Abdullahi Osman

– and –

Ahmed Siyad

James Cavanagh and Anne Fitzpatrick, for the Crown

Leora Shemesh for Mr. Osman

Cydney Israel and Julianna Schiller for Mr. Siyad

HEARD: June 27, 2025

ONTARIO SUPERIOR COURT OF JUSTICE

RULING ON DISCLOSURE PROCEDURE

JUSTICE I. CARTER

OVERVIEW

[1] The right to make full answer and defence is one of the pillars of our criminal justice system. To ensure the strength of that pillar, the accused is to be provided the fruits of the investigation. There are some limited exceptions, however. One such exception is that the Crown need not disclose material that is clearly irrelevant. In the seminal decision of R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, the Supreme Court noted that it anticipated that disputes over relevance would be few and far between, but when they did arise it would be up to the trial judge to resolve them. The decision did not address how precisely this was to be done.

[2] Stinchcombe was decided in 1991. Cell phones were not yet widely used. Now they are routinely seized and searched during investigations. From the accused. From witnesses. From victims. And they contain vast amounts of material, far beyond what the Supreme Court could have reasonably contemplated when Stinchcombe was decided.

[3] While disputes over relevance may not have seemed a major issue back then, they certainly are now. Indeed, the issue affects all parties in the system. The police will need to make decisions about whether to seize and search cell phones, knowing that significant resources will be required to analyze them. Assuming they are searched, the Crown must determine what is relevant and what is clearly irrelevant. Again, significant resources will be needed to conduct this exercise. In some cases, the Crown may choose to simply disclose the entirety of the phone contents. As a result, the defence will need to figure out how to navigate this massive dump of information, knowing that time and money are often at a premium.

[4] Then there is the problem that arises in this case.

[5] The accused are charged with two counts of first degree murder and one count of attempted murder. It is alleged that they shot and killed two brothers in their vehicle. A third brother escaped. He will be the main witness at the trial. Three cell phones were found in the victims’ car. Two of those phones have been searched pursuant to warrants. The warrants restricted the searches to a period of four weeks prior to the murders.

[6] The Crown has gone through the contents of the phones. At the Court’s request, they have prepared an index of categories of materials on the phone: R. v. Osman, 2025 ONSC 3333. As a result of preparing the index, the Crown disclosed some additional content. Furthermore, the defence has conceded that some of those categories contain clearly irrelevant material. There remains, however, a dispute about the remainder of what was uncovered on the phones.

[7] Two questions arise. First, what procedure should be used to determine whether the Crown has met its burden of demonstrating that the disputed materials are clearly irrelevant? Second, what materials should ultimately be disclosed to the defence? As I will explain in greater detail below, it is the answer to the first question that leads to a determination on the second.

PROCEDURE TO FOLLOW IN A STINCHCOMBE DISPUTE

[8] In Stinchcombe, it was held that the Crown has an obligation to disclose all relevant material in its possession, so long as the material is not privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown. The threshold requirement for disclosure is set quite low. The Crown must demonstrate that it is clearly irrelevant.

[9] The Crown’s duty to disclose is triggered whenever there is a “reasonable possibility” of the information being “useful” to the accused in making full answer and defence: R. v. McQuaid, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 at para. 21.

[10] The Crown has invited me to review the materials in dispute to assist in determining what is clearly irrelevant. Such a procedure may be appropriate in some circumstances, particularly where there is only a relatively small number of items at issue: see for example R. v. Dosanjh, 2019 ONSC 2373. I decline to do so in this case, however, for three main reasons.

[11] First, I am prepared to accept the Crown’s categorization of the contents of the phones. There is no basis for me to second guess what has been done. Indeed, the defence has not strenuously argued that I do so. Furthermore, the defence has not asked me to review any of the contents.

[12] Second, the volume of materials at issue is significant. There are thousands of communications, images and documents on the phones. It took a team of forensic specialists and Crown counsel weeks to go through all these materials. The whole point of that exercise was to group the contents into categories so that determinations on potential relevance could be made. The use of the term “clearly” suggests that the irrelevance of the materials should be apparent on their face.

[13] Third, as the trial judge, I am ill equipped to perform the exercise the Crown asks of me. The test is whether the material can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence: R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451 [emphasis added]. Given that I am unaware of the defence strategy, I am unsure how I would be able to decide how a particular piece of information might affect the conduct of the defence. As noted by the Supreme Court in McQuaid at para. 28:

To minimize the risk of inadvertent non-disclosure, the Crown might well choose to disclose even those witness statements that do not initially appear to be relevant. The defence obviously knows its case better than the Crown, and something which seems irrelevant could have significance to the defence.

[14] To my mind, this passage reinforces the notion that a deep dive into the minutiae of each document or image on a cell phone by the trial judge is neither required nor advisable.

[15] With that in mind, I turn to the issue of what material on the cell phones ought to be disclosed to the defence.

DETERMINING CLEAR IRRELEVANCE

[16] The Crown’s primary position is that with respect to the remaining materials in dispute they are unable to see any discernable connection to the murders. There is no reference to conflict. There is no reference to the Alta Vista Center where the murders took place. There is no reference to the Dominican related debt that is said to be the motive for the murders. Anything with the accused’s names on it has already been disclosed. While I appreciate that the Crown is in a difficult position because they do not know the full nature of the defences that will be adduced at trial, this view takes too narrow a formulation of the test. Materials may be of potential use to the defence even if not directly linked to the murders themselves.

[17] At the commencement of the hearing the defence sought the entirety of the contents of the phones. While I also appreciate that the defence was in a difficult position because they did not know anything about what were on the phones, this takes too wide a formulation of the test. The fact that materials are “fruits of the investigation” does not automatically make them relevant: R. v. Ali, 2020 BCSC 942. However, once the defence was provided the itemized lists, they were able to narrow the scope of their request and to provide further assistance on how the materials might be relevant.

[18] The defence has set out a number of issues that are likely to arise at the trial. I have no basis to reject this characterization of the litigation landscape. The defence knows their case better than I do. Furthermore, they have explained, for the most part, how materials in each of the categories might be relevant to those issues. Having not yet seen the information on the cell phones, they cannot say for certain whether they will ultimately assist or not. But they are not required to do so. The onus is on the Crown to demonstrate that the material is “clearly” irrelevant. Where the defence has articulated an issue to which materials in a category might be relevant, the Crown will have failed to discharge its burden. That is because is such cases the material cannot be said to be “clearly” irrelevant.

[19] In some cases, the category of material is too vague or ambiguous to allow for a meaningful assessment. In those cases, the Crown has also failed to discharge its burden. It is simply not possible to conclude that the materials are clearly irrelevant.

[20] I find that in most of the cases where the category of material is in dispute, the Crown has failed to demonstrate that the material is clearly irrelevant. The only exceptions are where the item falls outside the dates for which the warrant was valid, a period of four weeks preceding the murders. For example, the Defence seeks a calendar pop up on the iPhone 11 dated June 2020. This should not have been seized pursuant to the warrant and therefore should not be disclosed.

[21] In conclusion, the items contained in the categories as set out in the attached appendix will be disclosed to the defence.

Justice I. Carter

Released: July 29, 2025

APPENDIX

Apple iPhone 11

Application: all items

Calls: all items for the four week period authorized in the warrant Messages: all items for the four week period authorized in the warrant Call Logs: all items for the four week period authorized in the warrant Chats: all items for the four week period authorized in the warrant

Instant Messages: all items for the four week period authorized in the warrant

Contacts: all items except for the two contacts under Tinder

Cell Towers: all items for the four week period authorized in the warrant

Device Connectivity: all items for the four week period authorized in the warrant

Devices: all items for the four week period authorized in the warrant

Wireless Networks for 4 Devices: all items for the four week period authorized in the warrant

Device Locations: all items for the four week period authorized in the warrant

Locations: all items for the four week period authorized in the warrant

Manual Data Collection: all items for the four week period authorized in the warrant except for items related to Tinder

Audio: all items for the four week period authorized in the warrant except for notifications and noises

Images – Vehicle ownerships: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images of Abdullahs: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Financial: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Medical: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Police: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Photo of white car: one item

Images – Marijuana: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Real-Estate/Homes/Furniture: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Screen Shots: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Map Images: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Tik Tok Videos: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Comical Videos: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – News Site Video, Driving in a Car Video, Party with Other Individuals, Car: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Searched Items – Addresses: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Guns: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Police: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Finance/Crypto Currency: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Self Search: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Mail: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Dates: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Drugs: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Travel: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Legal: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Web Bookmarks: all items for the four week period authorized in the warrant; if a bookmark is undated it should be disclosed

Deleted Safari Visits: all items for the four week period authorized in the warrant; if a deleted item is undated it should be disclosed

Web History – Bitcoin, Banking, Financial: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Broken, Uncategorized, etc : all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Generic Web browsing: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Maps: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Internet Searches Using Google: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Online Gambling Sites: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Photograph Links: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Policing Related Websites: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Real Estate/Rentals: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Social Media: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Streaming etc…: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Travel, etc…: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Social Media: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

User Account and Details: all items

Data Files – Applications only: all items

Samsung Galaxy A5

Application: all items

Messages: all items for the four week period authorized in the warrant Calls/Call Logs: all items for the four week period authorized in the warrant Chats: all items for the four week period authorized in the warrant

Instant Messages: all items for the four week period authorized in the warrant

Emails: all items for the four week period authorized in the warrant

Contacts: all items

Device Connectivity: all items for the four week period authorized in the warrant

Devices: all items for the four week period authorized in the warrant

Wireless Networks for 4 Devices: all items for the four week period authorized in the warrant

Device Locations: all items for the four week period authorized in the warrant

Locations: all items for the four week period authorized in the warrant

Images – Cars and Transportation: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Vehicle Ownerships from Documents/Handwriting etc: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images of Artistic Assault Rifles: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Financial: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Medical: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Police from no Category: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Marijuana from no Category: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Real-Estate/Homes/Furniture: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Screen Shots: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Images – Weapons, etc…: all items for the four week period authorized in the warrant; if an image is undated it should be disclosed

Videos – Black Screens with Audio Playing: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – Content about Phones: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – Police: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – Parties: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – Videos of other Devices: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – Violence: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Videos – Guns: all items for the four week period authorized in the warrant; if a video is undated it should be disclosed

Searched Items – Addresses: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Incomplete Searches: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Coordinates: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Names: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Money/Finance: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Mail: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Gaming/Internet: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Social Media: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Travel: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – Crime: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Searched Items – General Questions: all items for the four week period authorized in the warrant; if a searched item is undated it should be disclosed

Web Bookmarks: all items for the four week period authorized in the warrant; if a bookmark is undated it should be disclosed

Web History – Bitcoin, Banking, Financial: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Broken, Uncategorized, etc : all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Generic Web browsing: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Outlook Mail Sign in: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Social Media: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Streaming etc…: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Web History – Travel, etc…: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Social Media: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

User Account and Details: all items

Data Files –GPS Monitoring and Airbnb Invoices only: all items for the four week period authorized in the warrant; if an item is undated it should be disclosed

Released: July 29, 2025

COURT FILE NO.: 21-15576

DATE: 2025/07/29

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Abdullahi Osman

– and –

Ahmed Siyad

Accused

RULING ON DISCLOSURE PROCEDURE