R. v. Moore, 2026 ONSC 3556

CITATION: R. v. Moore, 2026 ONSC 3556

COURT FILE NO.: CR-24-30000338-0000

DATE: 20260617

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE KING

-and-

FREDERICK MOORE

) Brad Ververs, for the Crown

) Sandra Kimberg and Theoni Kapetaneas,

) for the Defendant

) HEARD: April 13, 14, 15 and June 4, 2026

REASONS FOR JUDGMENT

G. ROBERTS J.:

OVERVIEW

[1] Frederick Moore stands charged with aggravated sexual assault of his then common law partner SG on March 24, 2023 (among other related offences). Mr. Moore admits to facts which establish the aggravated sexual assault but argues that the police conduct in relation to his cell phone, which they seized upon his arrest, amount to an abuse of process, and the proceedings should be stayed. Both counsels agree that if the application for a stay is dismissed, a finding of guilt should be entered, and the matter should proceed to sentencing.

[2] Defence counsel initially argued that the Officer in Charge (OIC) intentionally obfuscated when responding to the disclosure requests to cover a gap in continuity at best, and improper police access of the cellphone at worst. When the stay application was heard, defence counsel acknowledged that they could not prove improper police access to the cell phone, and the focus of the defence complaint shifted. The defence argued that the terms of the second search warrant violated solicitor client privilege, and the police and the Crown deliberately delayed disclosure relating to the cell phone. In addition, defence counsel points to a number of additional aggravating circumstances which contribute to the need for a stay of proceedings for abuse of process.

[3] The Crown acknowledges that the manner in which disclosure was handled was not ideal. But there was no breach of solicitor client privilege. Further, considered as a whole, the state conduct does not amount to an abuse of process that only a stay of proceedings could remedy.

[4] I do not find a breach of solicitor client privilege, but I do find the second search warrant so marred by omissions and incorrect information that it amounts to a subversion of the pre-authorization process and must be set aside. I also find that defence counsel had to go to extraordinary efforts to obtain basic information about the continuity of the cell phone while in police hands. While the high test for a stay of proceedings is not met in this case, this is a rare case where an order for costs against the Crown is appropriate.

THE AGGRAVATED SEXUAL ASSAULT

[5] At the outset of the stay application, Mr. Moore agreed to facts which establish an aggravated sexual assault of his then intimate partner, SG, on March 24, 2023 (see exhibit 1).

[6] When SG returned to the home she shared with Mr. Moore after being away overnight, Mr. Moore confronted her about perceived infidelity, and they argued. Mr. Moore proceeded to physically and sexually assault SG, including threatening to kill her, ripping off the pants of the pink pant suit she was wearing, attempting to penetrate her vagina digitally, removing her tampon and attempting to shove it in her mouth, and attempting to force his hand up her vagina.

[7] Mr. Moore pursued SG when she left the apartment and banged her head off the wall of the elevator. Once the elevator door opened, Mr. Moore continued to follow SG, but she managed to get the attention of other people in the lobby who intervened to help her get into her car alone. SG called police. During a search of the apartment, officers found a used tampon on the floor beside the bed, and blood on the bedding.

[8] SG suffered cuts, scratches and bruises to various parts of her body, including three tears (between 0.2 and 0.6 cm) to her outer vagina, and two tears (between 0.3 and 1.6 cm) to the interior of her vagina. Mr. Moore suffered scratches to his neck and face and cuts to his hand.

FACTUAL OVERVIEW OF THE PROCEEDINGS

[9] Mr. Moore was arrested at approximately 11 pm on March 24, 2023. His phone was seized. Mr. Moore gave a statement to police on March 25, 2023, telling them he and SG engaged in BDSM practices, and consented to the police searching his phone for confirmation. Police did not rely on the consent, but instead, on April 2, 2023, obtained a search warrant for the phone. Time

passed, and defence counsel received disclosure of everything but the contents of the phone. Despite repeated requests for disclosure, more time passed, and the contents of the cell phone were still not disclosed.

[10] Eventually, in 2025, on the eve of section 276 and 278.92 applications, the Crown agreed to return the phone to defence counsel so they could prepare for the applications and for trial. When defence counsel returned the phone, they provided the passcode so that police could search it. The police obtained a new search warrant for the phone, adding the period of time it was with defence counsel. The periods searched were disclosed. As was the underlying "RAW" data (an image of the contents of the entire phone).

[11] But details regarding the continuity of the phone while in police custody were still not disclosed, despite repeated requests. Defence counsel explained to the Crown that these details were important as a defence expert indicated there was some indication that the phone was accessed while in police custody. Defence counsel eventually had to schedule a two-day disclosure motion to get basic disclosure about the continuity of the cell phone. The motion resulted in the production of additional information regarding Mr. Moore's cell phone. Still more came during the abuse of process application.

CHRONOLOGY OF EVENTS RELATING TO THE CELL PHONE

[12] Based on the Affidavit of Aaron Ramsay and attached correspondence, and the evidence called during the stay application, including the additional documents made exhibits 8-13, I was able to arrive at a chronology of events regarding Mr. Moore's cell phone. In order to keep these reasons readable, I attach the chronology as Appendix A.

[13] Despite repeated requests by the defence for notes regarding the execution of the 2023 search warrant, the basic forms relating to the 2023 submission of the phone to the Technical Crime Unit of the TPS (hereafter the TCU) were not provided until the two-day disclosure motion on September 18-19, 2025. After the disclosure hearing the following additional material was provided:

• DC Haljeste's May 23, 2023 email to Det Wighton explaining that he could not act on the 2023 Search Warrant because he could not comply with the terms.

• TCU vault logs for the phone.

• PEMU (property management unit) logs for the phone.

• 2023 Case Intake Report completed by DC Steel and PC O'Brien (the 2025 form had been disclosed as matter of course).

• 2023 TPS Form 288 Request for Service (the 2025 form had been disclosed as matter of course).

[14] At the disclosure hearing, Det Wighton was asked for his notes about the phone. He testified that his emails were his notes. Despite this, his evidence at the stay application began with him disclosing a number of additional emails about the phone that had not been previously disclosed (made exhibits 8-13).

THOMAS MUSTERS' EXPERT EVIDENCE

[15] Thomas Musters was qualified, on consent, to provide expert evidence in the area of cell phone forensic analysis.

[16] Mr. Musters prepared a report (reproduced in the Applicant's Record (AR), made exhibit 1, at tab 4, dated November 14, 2025) in order to "identify any items generated as a result of user activity between February 11 and February 28, 2025, and, if possible, provide insight as to what interaction(s) may have led to their creation." This was the time period when the cell phone was returned to defence counsel so they could prepare for the upcoming motions.

[17] Mr. Musters explained that if a cellphone is turned on, and is working properly, it is constantly logging different data, for example, battery level, screen orientation. In addition, applications or apps produce logs, or artifacts, such as when an image is opened, or the user switches between applications. For example, when you swipe up on an iPhone you can see a carousel of images. Every time you exit an application one of these snapshots is created. Seeing such an artifact suggests the application was viewed and then closed.

[18] In this case, for example, a snapshot from when defence had the phone showed a message where Mr. Moore appeared angry at SG for not coming home. Defence counsel noted that these messages relate directly to the complainant's statement where she told the police that prior to the assault, Mr. Moore was volatile and confronted her about not coming home the day before (Muster's report, lines 346-349; Mr. Moore's factum para.146). Phone storage is limited, and artifacts will not be stored on the phone forever.

[19] Mr. Musters testified that there are clues to suggest whether data was deleted from a phone, such as if numbers on messages are not sequential, but it is not always possible to determine if data was deleted. You cannot reliably tell from data alone whether something has been deleted.

[20] Mr. Musters testified that his understanding of Cellebrite is that it will use all of the dates associated with an image, including when created, accessed, or modified. If any of these dates fall within the scope of the search, the image will be included. As a result, if defence counsel looked at an image or application during the access period, that action would bring the image within the scope of the search warrant, even if it was otherwise outside the search parameters. In this case, for example, the logs reveal that the Documents/File application was opened on February 20, 2025, at 12:08. This generated a screenshot revealing the content of that application. The content was from 2022, outside the original time range of the warrant, thus not otherwise available to the police (see Muster's Report, lines 83 and 77).

[21] Mr. Musters noted that he relied on the RAW data in order to attempt to recreate what was done with the phone while in defence possession. The RAW data is an image of all the data on

the phone. The filtered data is the data responsive to the terms of the search warrant. Mr. Musters agreed with the defence suggestion that some of his conclusions did not require reference to the RAW data, for example, he could tell that the contact for Rose Vo was opened in Facebook Messenger without referring to the RAW data.

[22] Mr. Musters also testified that he provided a provisional opinion to defence counsel earlier in 2025 that the phone may have been accessed while in police custody. On closer analysis, however, the concerning activity was mostly explained by defence counsel interacting with the phone after they received it in February 2025. Mr. Musters explained that when defence counsel obtained the phone, the date and time stamp had not been updated and the incorrect time initially caused him to mistakenly suspect the activity by defence counsel in February 2025 occurred much earlier, while the phone was in police custody. There was some additional activity which he could not explain, but which also did not provide a sufficient basis to show improper police access.

DID THE TERMS OF THE SECOND SEARCH WARRANT BREACH SOLICITOR CLIENT PRIVILEGE?

[23] The second search warrant for the cell phone included a request for data for the time period while the phone was in defence possession "to ensure that no data was altered, modified, or created".

[24] Defence counsel argues that this request amounted to a violation of solicitor client privilege, because, considering this data in the context of the terms of defence access, which required counsel to be present, the metadata would reveal what the defence looked at and when in preparing the defence. Defence counsel explains "while the device events are giving the state all of counsel's footprints in and footprints out - every time the device is on, which app is opened etc.- various screenshots are being made by the phone along the way revealing the content of the application being reviewed (factum, para.153)."

[25] The Crown disagrees, arguing that the metadata reveals nothing on its own, and cannot be construed as a communication. Further, police were simply protecting the integrity of the cell phone.

[26] Solicitor-client privilege is established when the following criteria are satisfied:

a. The content consists of a communication between the solicitor and the client;

b. The communication entails the seeking or giving of legal advice; and

c. The communication is intended to be confidential by the parties: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 at para 15.

[27] Litigation privilege protects work product that reveals counsel's "observations, thoughts and opinions": R v. Assessment Direct Inc., 2017 ONSC 5686 at paras.11-13.

[28] I cannot accept the Crown position. It takes an overly narrow view of metadata inconsistent with how appellate courts view such information in the search context. For example, in determining whether a reasonable expectation of privacy exists in the subject matter of a search, it is necessary to take a functional and wholistic approach considering both the information sought and the nature of the information it reveals: R. v. Ward, 2012 ONCA 660 per Doherty at para.67;

R. v. Bykovets, 2024 SCC 6 at para.38; R. v. El-Azrak, 2023 ONCA 440 at 38.

[29] At the same time, I cannot accept the defence position. I do not believe the potential for the metadata in this case to reveal information means that it can be treated as a communication, or an observation, thought, or opinion. It is different than a document "collected by a lawyer for the purpose of giving advice or in connection with actual or contemplated litigation", which all agreed was privileged in Mutual Life Assurance Co. of Canada v Canada (Deputy Attorney General), [1988] OJ No 1090 at paras.IO, 13-14; or a document or information provided to a lawyer in the course of obtaining legal advice: Blood Tribe v. Canada (AG), 2010 ABCA 112 at para.26. In this case, too many blanks need to be filled, or inferences drawn, in order to infer that a piece of information was provided to counsel. Musters testified that the RAW data was necessary to do his analysis and report (defence obtained it on consent so Musters could do his analysis). The police and Crown did not have access to the RAW data. Without the RAW data, police would be generally unable to discern whether an item was created due to a system update, or due to some human interaction with the phone. I accept that some information would be available without the RAW data, such as the search for Rose Vo. But it would be largely an Easter egg hunt.

[30] In sum, based on the record before me, I cannot conclude that the terms of the second search warrant breached solicitor-client privilege. If I am wrong about this, I do not believe the breach was significant for the following reasons.

[31] First, I believe that the police request for data during the period of defence access was made in good faith. It reflects the police obligation to preserve evidence, and not a mistrust of counsel, or an attempt to improperly access solicitor-client information. The way the police sought to protect the integrity of the data on the phone was inappropriate, for the reasons Musters explains: it potentially gathered additional material viewed by defence into the scope of the search warrant, and it potentially provided information about what defence counsel viewed. But it was essential that the police protect the integrity of the data on the phone. Mr. Moore can hire and fire whoever he wishes as counsel, but at the end of the day the state bears the burden of proving the integrity of the data on the cell phone. This is not simple. Musters testified that breadcrumbs showing interference with data may disappear over time. In short, I see no nefarious intent in the police request. Nor do I see it as impugning the integrity of counsel. To the contrary, I am satisfied the request was made in good faith in a misguided attempt to fulfill the obligation to protect the integrity of evidence in police custody.

[32] Second, from an early stage, well before I became involved at the disclosure motion, the Crown took the position that they were not seeking to rely on any information from the cell phone.

[33] Third, there is no evidence that police ever viewed data from the cell phone from the defence access period, or indeed any data from the phone. Defence counsel explains that both DC Haljeste and Mr. Musters testified that it is necessary to look at the broader context in order to

interpret metatdata because there may be multiple explanations for a particular log. In this context, defence counsel argues that DC Haljeste must have looked at additional data in order to interpret the April 4, 2023 log from 7:40:59 and satisfy himself that it was not improper police access. I do not believe it follows that the police looked at logs or events from when the cell phone was in defence hands. First, the most immediate additional context is that at this date and time, the cell phone was in a locker at TCU. The Case Intake Report for the cell phone was completed and time stamped 18:38 on April 4, 2023. DC Steel testified that after completing this form, he would have put the phone in the vault at TCU. Second, even if DC Haljeste did look at logs, the next log after the April 4, 2023 log of concern is from January 18, 2024 at 1:40:38, while the cell phone was in police custody. In all the circumstances, I cannot infer that DC Haljeste looked at logs from the period when the phone was with the defence counsel. In sum, there is no evidence that the police or the Crown ever looked at data on the cell phone.

[34] Going forward, different procedures must be adopted in order to protect the integrity of data on a seized cell phone returned to the defence (before it is cracked by police). Workable procedures will likely require the input and cooperation of both parties. One possibility is to image the contents of the phone, and seal this data, before returning the phone to defence counsel in order to prepare a defence. This would involve the defence cooperating with the unlocking of the phone so the image could be made. And the state agreeing to delete the passcode information, or agreeing that the defence could change the passcode after the phone was imaged and temporarily returned to the defence. Another possibility is to image the phone, seal the image with the court, and release certain portions of the contents of the image to the defence while keeping the phone secure (see for example the terms accepted in R. v. Dillon, October 31, 2024 ONSC unreported per Bawden J., attached as Appendix B).

DID THE CROWN AND POLICE DELAY DISCLOSURE OF CONTINUITY INFORMATION RELATING TO THE CELL PHONE?

[35] Defence counsel points to delays in disclosure as giving rise to an abuse of process, citing

R. v. Bashir, 2025 ONSC 5391 per Gambacorta J., and R v Pennock, unreported, July 25, 2025, per Barnes J. Defence counsel also asserts that the circumstances surrounding the Crown's change of position regarding the May 23, 2023 email from DC Haljeste contributed to the delay in disclosure, and suggest a lack of good faith.

[36] The Crown responds that the administrative forms and emails, not routinely disclosed, and which ultimately proved to be irrelevant, cannot provide the basis for a stay. Further the Crown cautions against inferring bad faith from a mistake, especially given the context - the administrative emails were not exculpatory or obviously relevant.

[37] It is important to remember that what is obvious with hindsight, and a full picture of events, may not be so obvious at the time the conduct occurred. In other words, conduct needs to be assessed based on what was known at the time.

[38] While the continuity of a cell phone in police possession is not Stinchcombe disclosure in most cases, when defence counsel expressed a good faith concern about improper access to Mr. Moore's cell phone, continuity of the phone while in police hands became first party disclosure.

The fact that the defence concern ultimately did not materialize may be relevant to remedy, but it does not diminish the obligation to disclose or assuage a concern about delay in providing disclosure. For reasons that remain unclear to me, defence counsel had to bring a two-day disclosure motion to get basic disclosure about the handling of the cell phone. Even then, more information came out during the stay application. Defence counsel has meticulously described her attempts to get disclosure. They are important, but to keep these reasons readable, I summarize them at Appendix A. The upshot of the defence efforts, and the disclosure and stay hearings, is that a lack of police diligence was laid bare, and improprieties in the police handling of cell phone were uncovered. I set out my findings about delay disclosure, and other improprieties relating to the cell phone below.

Delay disclosure

[39] Defence first requested the results of the phone warrant at the JPT on February 14, 2024. In January of 2025, defence were told it was an iPhone 14 Pro Max, which could not be cracked at that time. It is unclear where the information about the model came from as the phone was actually an iPhone 13 (see TCU Preliminary Data Extraction Notes at tab 22 of the Applicant's Record). More importantly the phone was not even at the TCU in January of 2025, but was sitting in a property locker at the property management unit (PEMU) because the first warrant was flawed. The OIC did not disclose to the Crown the fact that the first search warrant was never executed because it was improperly drafted until August of 2025. This fact was not disclosed to defence until the disclosure motion in September of 2025.

[40] Continuity logs from 2023 were not released until the disclosure motion in 2025. It appears the OIC had them well before the disclosure motion, despite taking the position that they did not exist. Charles Coffy from the TCU gave Det Wighton the 2023 Case Intake Report on May 9, 2025 (exhibit 9). Det Wighton explained that he could not open it, but no follow up appears to have been done. Charles Coffy sent Det Wighton the 2023 form 288 request for service attached to an email dated April 8, 2025 (exhibit 13).

[41] Det Wighton testified at the disclosure hearing that his emails were his "notes" regarding the phone. Despite this, further emails regarding the phone were not provided until he took the stand on the stay application and announced their existence. The repeated defence requests for disclosure would have required the OIC to go through his emails. Some were disclosed at disclosure motion. Inexplicably, some were not. Not until the OIC was in the witness box on the stay application did defence counsel get complete disclosure ofDet Wighton's notes regarding the phone. The additional documents provided during the stay were put to him in cross-examination and made exhibits on the stay application - exhibits 8, 9, 10, 11, 12, 13). In general, they relate to the OIC's failure to correct the first search warrant and re-submit the phone to the TCU with a proper warrant. They also include emails providing the OIC with the 2023 Case Intake Report and the 2023 form 288 request for service.

[42] Det Wighton was uncooperative during his testimony on both the disclosure application and the stay application.. For example, during the disclosure application defence counsel asked for exhibit management logs for the cell phone. Det Wighton responded that he had never heard the phrase 'exhibit management log' (transcript from September 19, 2025, p.36). When some of the

phone logs were produced, he noted that they were not phone exhibit logs but property records. In the context, it was obvious that defence counsel was seeking records related to the continuity of the cell phone. It is hard to conclude anything other than Det Wighton was being deliberately uncooperative and unhelpful. During the stay application, Det Wighton repeatedly purported not to understand what was being asked. When the question was re-phrased or asked again, he repeatedly could not recall.

Gaps in the continuity of the cell phone

[43] According to DC O'Brien, he retrieved the cell phone from Mr. Moore's property bag at booking around 4:45 am on March 25, 2023, and gave it to Det Levy at 5:10 am on March 25, 2023. O'Brien testified that he received the phone back from Det Wighton at 6:33 pm March 26. Det Wighton denied ever having the cell phone or ever even touching it personally.

[44] In 2023, DC O'Brien delayed a couple of hours before putting the phone into temporary storage. He delayed again, this time by a couple of days, after taking it out of storage before delivering it to the TCU.

Serious omissions and errors in the ITO for the second search warrant

[45] The ITO for the second search warrant for Mr. Moore's cell phone contained serious omissions and errors, including the following:

• No mention is made of the fact that Mr. Moore provided his password, or how it was obtained.

• The assertion "with extensive case load present at our tech department they were unable to examine Moore's device" is flat out not true. DC Haljeste found the first warrant flawed and refused to execute it in May of 2023. He wrote an email to the OIC explaining this on May 23, 2023, and asking that the phone be picked up. DC Samuell testified that he was not told about this email, and did not know about it when drafting ITO.

• DC Samuell testified that he understood the phone was seized because of Mr. Moore's statement. He believed he learned this from O'Brien's notes. But according to DC O'Brien, the phone was seized before Mr. Moore gave a statement.

Was the assigned crown complicit in the delay of disclosure?

[46] Defence counsel urges me to find that the Crown intentionally withheld disclosure of the May 23, 2023 email from DC Haljeste ( explaining that he could not act on the first search warrant for the cell phone). The record shows that this email was finally provided to the Crown in August of 2025. It was disclosed in September 2025, following the disclosure motion. Defence counsel points to changes in the Crown position and argues that "the Crown intentionally withheld disclosure of the email in a misguided strategic decision."

[47] I do not find any impropriety on the part of the Crown, including in respect of the May 23, 2023 email from DC Haljeste.

[48] The high test for a stay of proceedings means that defence counsel must highlight any circumstance suggesting impropriety on the part of the state. But this often involves holding a metaphorical magnifying glass to state conduct with the benefit of hindsight and a full appreciation of the record which may not be entirely fair to the individuals involved. As I noted, it is important to consider the conduct of individuals in the context of what was known at the time. In this case, for example, it is important to remember that the Crown took over the case from another Crown shortly before the disclosure motion. Further, the May 23, 2023 email from DC Haljeste to the OIC was internal police correspondence that would not normally be part of Stinchcombe disclosure. When I consider the Crown positions in context, I see nothing improper. Rather I see a Crown grappling with a fairly novel situation and trying to respond fairly and appropriately.

[49] In general the Crown has conducted the prosecution in the highest traditions of the office. After the disclosure motion, the Crown opened the books. During the stay application, the Crown brought all the relevant officers to court, did a brief in chief, before making them available for cross-examination. The Crown assisted in trying to shine a light on what happened with the cell phone while in police custody.

SHOULD THE PROCEEDINGS BE STAYED AS AN ABUSE OF PROCESS?

[50] Defence counsel seeks a stay of proceedings on both the main and the residual grounds: the breach of solicitor client privilege affected the fairness of the trial; the delay disclosure, false statements in the in the ITO, and other improprieties, so tainted the proceedings that only a stay of proceedings will provide a sufficient remedy.

[51] The Crown responds that there was no breach of solicitor client privilege, and the delay in disclosing administrative emails which never had significance on the merits of the trial, and ultimately proved to be irrelevant entirely, cannot possibly meet the test for a stay, particularly in a very serious case of intimate partner violence.

[52] There are two categories of abuse of process. The main category, where state conduct compromises the fairness of the trial; and the residual category where the state conduct does not threaten trial fairness but risks undermining the integrity of the of judicial process. The test for whether a stay should be entered is the same for both categories. It consists of three requirements:

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".

R. v. Babos, 2014 SCC 16 at paras.31-32 per Moldaver J

[53] For the reasons set out above, I found no breach of solicitor client privilege, or alternately none that would affect the fairness of the trial. It follows from this conclusion that only the residual category is in play.

[54] An accused who seeks a stay under the residual category faces an onerous burden. This follows from the combined effect of the "clearest of cases" threshold and the balancing of societal interests that must take place in such cases. Cases warranting a stay will be "exceptional" and "very rare". A stay will be entered only where the affront to fair play and decency is disproportionate to society's interest in the effective prosecution of criminal cases: R. v. Babos, at para. 44.

[55] Beginning with the prejudice step, while the disclosure motion and the stay application should not have been necessary to get disclosure about the continuity of the cell phone, the defence has finally been provided with more or less complete information about Mr. Moore's cell phone while in police custody. There is no longer any concern about improper police access to the cell phone. It should not have taken as long as it did for the defence to get the disclosure it needed to investigate its concern about improper access to the cell phone. But I do not see how continuing with the proceedings offends societal notions of fair play and decency, or perpetuate or aggravate the prejudice to the integrity of the justice system.

[56] At the second step of the test, considering remedy, I believe that there are other remedies more suited to the harm caused by the state misconduct. I am deeply offended by the false statements in the ITO and believe they so taint the process that the search warrant for the phone must be set aside: R. v. Paryniuk, 2017 ONCA 87. While the motive for the false statements is unclear, they subvert the pre-authorization process and fatally taint the warrant. It must be set aside. In R. v. Suman, 2026 ONCA 378 at para.57, the CA accepted the trial judge's conclusion that excluding evidence was an adequate remedy where police obtained an over-broad production order for the accused's phone, including messages with the accused's lawyer. Excluding evidence is not necessary in this case, however, as the Crown has long disavowed any reliance on the contents of the cell phone. But it is the appropriate, most responsive, remedy. The fact that it is not necessary because of the Crown position does not enhance the need for a stay. To the contrary, I find that it shows that the state has already responded to the impropriety, which diminishes the need for the justice system to dissociate from the state conduct. In R. v. Diakoloukas, 2024 ONCA 410, for example, the fact that the police and the Court of Appeal responded promptly to address the confusion which lead to the Charter violations was a relevant factor in whether a lesser remedy than a stay would suffice.

[57] Regarding the delays in disclosure, I believe costs more appropriately address the harm caused. At the end of the day, defence counsel showed no improper access of the phone. But defence counsel was entitled to the disclosure required to explore their good faith concern about improper access of the phone. This should have come quickly and with little effort on the part of the defence. Unfortunately, defence counsel had to spend enormous resources just to get the disclosure necessary to pursue their inquiries, including a two-day disclosure motion and part of a three-day abuse of process motion. Only after all this effort did they finally learn what happened to the phone while in police custody. While the delays were manifestly inappropriate, I do not see them as so concerning that "having a trial - even a fair one - will leave the impression that the

justice system condones conduct that offences society's sense of fair play and decency": R. v. Babos, at para.35.

[58] Given my findings on prejudice and remedy, I do not need to address the balancing part of the test, which is particularly important for cases falling into the residual category. Were I to balance, however, the circumstances overwhelmingly tip the balance toward continuing the proceedings:

• The state misconduct did not touch the substance of the proceedings. While disclosure was far too slow, none of it was exculpatory or important to the substance of the proceedings, which tum on the evidence of the complainant, and anything that can tend to confirm or undermine her account.

• This misconduct appears to be isolated to the OIC.

• The accused has been on bail and counsel have agreed to the various delays, for reasons that go beyond the delayed disclosure.

• The offences are extremely serious and involve intimate partner violence (IPV). I do not think it is an overstatement to describe IPV as a plague in our society.

• IPV is complicated to investigate and prosecute. Society has an extremely strong interest in seeing viable cases of IPV determined at trial on the merits.

SHOULD COSTS BE ORDERED AGAINST THE CROWN?

[59] Ordering costs against the Crown in relation to disclosure is exceptional. The Crown is not an ordinary litigant. It must not be subject to costs where it is unsuccessful or less than perfect. Nor can negligent conduct ground a cost order against the Crown. Costs may only be ordered against the Crown in "circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution": R. v. 974649 Ontario Inc, 2001 SCC 81 at para.87; R. v. Singh, 2016 ONCA 108 at 33, 40. The caselaw demonstrates how high this test is. In Singh, for example, the delayed disclosure of highly material information, causing hundreds of thousands of dollars in legal costs that could have been avoided, did not meet test where there was no intent to fail to provide timely disclosure, and the case fell through the cracks, including because the defence did not follow up.

[60] In this case, I found no misconduct on the part of the Crown, but failings on the part of the police, namely the OIC. In the context of Stinchcombe disclosure, however, the Crown and the investigating police are a single entity such that the Crown must be held responsible for disclosure

failings by the investigators: R. V. McNeil, 2009 sec 3 at para.24.

[61] The Crown agrees that disclosure was far from perfect but argues that the delays result from mis-communication and confusion and a lack of diligence. I cannot accept this explanation. There was some miscommunication and confusion in relation to the cell phone, for example, it was erroneously assigned a second case file number when it was sent to TCU for the second time.

However, this seemed to have been figured out fairly quickly and did cause significant delay. More significantly the circumstances in this case went beyond delay disclosure and extended to providing false information about the phone, including:

• Defence counsel repeatedly requested disclosure of the results of the 2023 cell phone warrant. Defence counsel were repeatedly told that the phone could not be cracked. This was not a complete or accurate explanation. While TCU seemed to mistakenly believe the phone was an iPhone 14, which they did not have the ability to crack (apparently it was actually an iPhone 13), TCU never even attempted to crack the phone because the warrant was flawed and needed to be re-written. The OIC was told this in May of 2023 (the May 23, 2023 email from DC Haljeste). The OIC did not provide this information or email to the Crown until August of 2025. It was not disclosed to defence until the disclosure motion in September of 2025.

• Defence counsel were told that 2023 logs relating to the phone did not exist. They did. Moreover, the OIC had them. Charles Coffy from the TCU sent Det Wighton the 2023 Case Intake Report attached to an email dated May 9, 2025 (exhibit 9). Det Wighton explained that he could not open the attachment, but he did not appear to do any follow up. Charles Coffy sent Det Wighton the 2023 form 288 request for service attached to an email dated April 8, 2025 (exhibit 13). Inexplicably, the police, and by extension the Crown, began the disclosure hearing maintaining that these documents did not exist.

• The assertion in the second search warrant that "with extensive case load present at our tech department they were unable to examine Moore's device" is flat out not true. As noted, the first warrant was flawed, and TCU could not act on it, and DC Haljeste conveyed this information to the OIC in an email dated May 23, 2023. Charles Coffey reiterated the fact that the TCU could not act on the first warrant twice to Det Wighton: in an email dated July 8, 2024, and in another email dated February 5, 2025.

[62] In addition, as I explained above, I found the OIC to be deliberately uncooperative in providing information about the continuity of the cell phone, at both the disclosure hearing and the stay application, as I explained above. While there are gaps in continuity surrounding the cell phone, and the police evidence does not add up, the record does not permit me to make a finding about why the OIC was uncooperative. But he was. This was not mere negligence or oversight or confusion. He was deliberately uncooperative in providing information about the continuity of the phone in 2023.

[63] In the particular circumstances of this case, I find the delay in making disclosure about the continuity of the cell phone while in police custody in 2023 amounted to a marked and unacceptable departure from the reasonable standards expected of the prosecution such that an order for costs is appropriate.

[64] Defence counsel has submitted a Bill of Costs. The Crown will have an opportunity to respond regarding the appropriate amount of costs.

______________________ G. Roberts J.

RELEASED: June 17, 2026

APPENDIX A

CHRONOLOGY OF EVENTS REGARDING MR. MOORE'S CELL PHONE.

2023

24 March - SG calls 911; Mr. Moore was arrested around 11 pm and charged with a serious sexual attack on SG in their home. The apartment was frozen, then searched and various items of physical evidence found that confirmed the allegations (described in the ASF). Mr. Moore's cell phone was seized. At the station, Mr. Moore was asked for his lawyer's name. His phone was returned so he could get the contact information. He unlocked the phone on the in car camera (ICC). The numbers were visible. Mr. Moore also said them aloud.

25 March - DC O'Brien took custody of the phone around 4:45 am (taken from Mr. Moore's property bag at booking) and gave it to Det Levy before finishing his shift at 5:10 am.

Det Levy took a statement from Mr. Moore beginning around 7:20 pm. During the statement Mr. Moore again unlocked the phone to obtain contacts for potential sureties, and the passcode was visible. During the interview, Mr. Moore consented to police. searching the phone as he believed it would contain exculpatory evidence relating to the couple's BDSM practices. [The October 2024 email from the Crown suggests the Crown did not know about the consent, as they ask if Mr. Moore was willing to provide consent.]

26 March-Det Wighton gave DC O'Brien the phone at 6:33 pm; at 7:41 pm O'Brien put it in a sealed property bag; at 8:43 pm he put it in a temporary storage locker. He did not recall if it was wrapped in tinfoil or where the SIM card was.

2 April - Police obtained a search warrant (SW) for Mr. Moore's phone. At 10:37 am O'Brien retrieved the phone from the storage locker so the search warrant could be executed. Between April 2-4, he kept the phone in a locked drawer of his desk. He did not recall if it was wrapped in tinfoil or where SIM card was.

4 April - At 6:09 pm O'Brien brought the phone to TCU and provided it to DC Steel. They completed the Case Intake Report [ex 3] at approximately 6:30 pm. If O'Brien was given the form he would have given it to Det Wighton. Steel would have checked the paperwork, the state of the phone and whether on or off and how to maintain that. Steel did not review any data. He only knew the make of the phone but not the model. The SIM card was with the phone wrapped in tinfoil but he did not recall whether it was taped to phone. If they had the password on intake he would have noted that on the form. The form was generated through the entries he made in e-tracker. A copy of the form would have been given it to O'Brien.

23 May - DC Haljeste looked at warrant and decided the wording required him to exercise discretion based on information he did not have. He wrote a detailed email to Det Wighton explaining the issues with the warrant (ex 5). He noted the email in e-tracker. He never handled or looked at the phone. The phone should have been picked up. He did not follow up and the phone stayed where it was (in a locker at TCU) until July 2024.

2024

14 February-At the JPT, defence counsel asked for disclosure of the results of phone warrant.

8 July - The Crown followed up on an earlier request for trial dates. Defence responded and reiterated their request for the ITO and cellphone results, adding that if those cannot be disclosed, they will have to add time for a lost evidence application. The Crown advised "I gather tech crimes does not have the encryption software to get into the iPhone" and it was unclear when they would. The Crown asked whether Mr. Moore would consent to a search of his phone and provide his password, adding "I know you mentioned he had provided his consent at the outset, but the OIC and I can't find a note of this."

The OIC asked Charles Coffy [at TCU] to examine Mr. Moore's cell phone because Mr. Moore recorded the offences on his cell phone in videos and photographs and the defence was planning to bring a lost evidence application. Coffy responded to the OIC that DC Haljeste emailed the investigative team in May of 2023 about the exhibit and issues with warrant but did not receive a reply. Also the exhibit is an iphone 14 pro max which they could not currently get data from. Coffy asked the OIC to advise the Crown that they could not get evidence from the phone, and also asked whether the phone should be sent to PEMU (property management unit) [see ex 12; note phone is actually an iPhone 13 - see TCU Preliminary Data Extraction Notes, at tab 22 of AR (Applicant's Record)].

10 July-The OIC wrote back that he found the email from Haljeste, and asked that the phone be returned to the PEMU, adding "if the case drags out then I will check back to see if we have the ability to get into it and redo a warrant at that time".

24 July-The phone was returned to the PEMU from TCU.

2025

3 January - In an email to the Crown, Det Wighton wrote, "I'll call [Tech Crimes] and see where they are on it." He emailed later, "I just spoke to Tech Crimes and they advised that they still don't have the ability to get into the phone (iPhone 14 Pro Max) [AR tab 27].

14 January - Defence counsel asked about the phone extraction in preparation for a stage 1 276/278 scheduled for Feb 28/25. The Crown advised "police have not been able to perform a phone extraction" but they have followed up with tech crimes and "are hoping to get an update shortly" [AR tab 3B].

24 January - If"no extraction forthcoming", the defence requested the return of the phone in order to prepare for a 276/278 application. The defence also made a lengthy disclosure request including for "phone warrant execution notes" and any McNeil reports [AR tabs 3C & 3D].

31 January-The Crown responded to the disclosure request, including: "Regarding the phone - my understanding is that the tech crimes unit is still attempting to crack the phone....[but] we would be prepared to give you as counsel temporary custody of the phone so that you can review items within it in furtherance of the motion. This would be done with an undertaking that the phone

will a) only be held in counsel's possession b) that Mr. Moore can go through the phone in the presence of counsel, c) no items are altered/deleted and d) the phone is then returned to members of the TPS within 14 days of it being turned over" [AR tab 3E].

4 February-The Crown wrote to Coffy asking if the phone could now be cracked (because Det Wighton told her TCU had new software capable of cracking iPhone 14s) and the defence needed access urgently [ex 11].

5 February-At 7:40 am, Coffy wrote to Det Wighton that the warrant still had not been corrected; without the changes indicated they could not proceed in the event the defence provided a passcode [ex 10]. At 07:41 am Coffy wrote back to the Crown noting that the phone could not be accessed unless Mr. Moore provided the password. He was wary of returning the phone to the defence as there was nothing to stop them deleting or altering data [ex 11].

11 February - The defence picked up the phone. It was reviewed by the defence expert, Thomas Musters.

18 February - The defence followed up on its disclosure request, including "the phone warrant execution notes" [AR tab 3F].

24 February -The defence asked the Crown for permission to update an App in order to review the contents. The Crown agreed. The defence again asked for the search warrant execution notes [AR tab 3G].

26 February - The defence returned the phone as agreed.

1March - Det Wighton assigned DC Samuell to prepare a second search warrant. Samuell initially testified it was his idea to include the period when the phone was with defence counsel but subsequently agreed that Det Wighton instructed him to include the period the phone was with the defence.

2March - DC Samuell swore the second ITO requesting a search warrant for the phone.

3March - Det Wighton informed Coffy that they had a new search warrant for the phone which would be dropped that evening or tomorrow. They now had the passcode for the phone [ex 11].

4March - Coffy wrote back asking Det Wighton to advise Coffy when the phone was submitted and Coffy would prioritize it, adding "with the passcode you will have it within the next two weeks" [ex 11].

10 March - The defence asked for the 2023 phone SW execution notes, explaining to the Crown that the defence tech expert found indications the phone had been looked at in April and she wanted to see the notes [AR tab 3J].

13 March - DC Haljeste turned over the extraction results from the second search warrant to DC Henderson. Haljeste did not realize it was the same phone he had considered in May of 2023, and

later learned it was re-submitted under a new number. The Crown advised the defence that the police had gotten into the phone and she would provide the Cellebrite on a USB [using a pass code provided by the defence]. Defence counsel again asked for the 2023 search warrant execution notes [AR tab 3K].

17 March - TCU 2025 Preliminary Data Extraction Notes disclosed.

20 March - The defence requested the search warrant execution notes from April 2023 and March 2025, and the exhibit management logs for phone as well as the RAW data [AR tab 3L].

28 March - Det Wighton told Haljeste about the allegation by the defence about unauthorized access of the cell phone. Each gave a different account of the conversation. Haljeste recalled the focus was call logs from April 4, 2023, and being shown segments from the defence report. Det Wighton recalled Haljeste simply showing him how to open tabs in Cellebrite. However, he acknowledged in cross-examination that it was possible that they discussed the modified logs at 1940 on April 4 but he did not recall. Neither account makes sense to me. Regarding the Haljeste account, the defence report had not been provided to the Crown/police at this time. Regarding the Det Wighton account, I have a hard time believing that, in 2025, an experienced detective with the TPS would not know how to open a tab on Cellebrite.

30 March - Det Wighton wrote to Steel asking for a will state, sharing Haljeste's explanation for the logs: "After the defence examined the phone, they raised a concern that the phone was accessed and modified at 19:40 hours on April 4th. Last Friday I called and spoke to Mike [Mark Haljeste], who explained that this modification was a system update and not the result of anyone accessing the phone, as we could not have accessed the phone because we did not have the passcode at that time." Det Wighton then asked Steel to draft a will-state and provide any "clarifications you might have for why or how the system modifications recorded the phone's timeline is created" [AR, tab 30]. Although this email raises a significant concern about potential tainting, it had no substantive impact on the case as defence counsel is not pursuing their concern about improper police access of the phone. However, it does add to the mix of concerning police conduct.

31 March-The Crown disclosed the ITO from the 2025 phone search and indicated that she had asked for the 2023 data and any and all notes/records/logs.

4 April - Crown disclosed the will states from TCU officers. Defence again asked for information about the 2023 search warrant execution.

2 May- Defence disclosure application filed regarding "the lack of exhibit management logs".

5May - On consent order for the release of RAW data from the phone which the defence expert required for analysis.

9 May - The Crown wrote to Det Wighton asking for the intake forms from 2023, attaching the intake forms from 2025. Det Wighton forwarded to Coffy who responded quickly advising that "there were a couple of internal file numbers under this name, here is the intake document for 2023". Apparently, the attachment did not open, but no follow-up was done [ex 9].

18-19 May - Disclosure application heard, resulting in the disclosure of the following items:

• Haljeste May 23, 2023 email to Det Wighton explaining that he could not act on the 2023 search warrant because he could not comply with the terms.

• TCU vault logs for the phone.

• PEMU logs for the phone.

• 2023 Case Intake Report completed by DC Steel and PC O'Brien (the 2025 form had been disclosed as matter of course).

• 2023 TPS Form 288 Request for Service (the 2025 form had been disclosed as matter of course).

BETWEEN:

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

-and-TYRONE DILLON

Respondent

Applicant

ORDER

WHEREAS the Applicant, Tyrone Dillon, is alleged to have committed, between the dates of August 18 and August 22 of 2022, human trafficking related offences contrary to the Criminal Code of Canada in relation to

BE IT KNOWN that upon having reviewed the materials and submissions of the Applicant and the Crown, this Court hereby Orders that the Toronto Police service conduct a Cellibrite analysis, or other substantially similar digital analysis, of the digital device, a Gold iPhone (in a clear case with Toronto Police Property Tag P7207103), seized in the matter of Tyrone Dillon;

THIS COURT FURTHER ORDERS that the analysis of the said digital device be conducted in the following manner and that the resulting data shall be dealt with according to the following terms:

a) The Applicant, Tyrone Dillon, will provide his digital device password to the Toronto Police;

i.

the password will be provided via a phone call with counsel Susan Pennypacker, who can be reached at

b) The password shall only be used to access the digital device identified as the Gold iPhone (in a clear case with Toronto Police Property Tag P7207103), seized in the matter of Tyrone Dillon, for the purpose of this analysis and for no other purpose;

c) An analysis of the said digital device shall be commenced immediately upon receipt of this Order and the sealed password;

d) The analysis shall be completed as a priority extraction;

e) Once the analysis has been completed, the password shall be destroyed and shall not be used for any other purpose;

f) A complete extraction of the contents of the said digital device shall be conducted insofar as it is technologically possible;

g) The complete extraction and a duplicate "master file" will be saved to USB drive(s) and filed under seal with the court;

i. In addition to the complete extraction and the duplicate "master file" it is contemplated that the following specific files will be extracted as readable PDF files;

1. Facebook messenger messages between -

-andTyrone Dillon. For greater specificity, the communication between - and Tyrone Dillon occurred in the month of August of 2022;

2. Facebook messenger messages between -

and Tyrone Dillon. For greater specificity, the communication between -

and Tyrone Dillon occurred in the

month of August of 2022;

3. Text messages or iMessages between Tyrone Dillon and . For greater specificity, the communication between

and Tyrone Dillon occurred in the month of August of 2022. ' cellular telephone

number in August of 2022 is believed to be-)

h) Subject to the review and approval by the Court, the parties shall be provided with the following 3 readable PDF files from the digital device:

i. Facebook messenger messages between - - and Tyrone Dillon. For greater specificity, the

communication between- and Tyrone Dillon occurred in the month of August of 2022;

ii. Facebook messenger messages between

• and Tyrone Dillon. For greater specificity, the

communication between and Tyrone Dillon occurred in the month of August of 2022;

iii. Text messages or iMessages between Tyrone Dillon and

. For greater specificity, the

communication between and Tyrone Dillon occurred in the month of August of 2022. -

' cellular telephone number in August of

2022 is believed to be

i) If the digital device cannot be accessed, an extraction cannot be completed, or in the event that the files set out in clauses "g" and "h" cannot be extracted, the examining officer shall notify the parties via

email at brigid.McCallum@ontario.ca and

s.pennypacker@spbarristers.com.

j) The Applicant's consent to access the data on the digital device is restricted to the three specific sets of data outlined above in clause "g" and "h."

k) The remaining data on the digital device shall not be used for this proceeding or for any other purpose.