Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Applicant
– v. –
MUSAB WASIF Respondent
COUNSEL: Julie O’Connor, for the Crown Carson Hurley, counsel for the Respondent
HEARD: May 12, 2026
PUBLICATION BAN
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
RULING ON APPLICATION TO STAY THE PROCEEDINGS
THE HONOURABLE JUSTICE SUNIL S. MATHAI
A. Overview
1Musab Wasif is charged with assault causing bodily harm, sexual assault, sexual interference (two counts), invitation to sexual touching, assault with a weapon, assault (two 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.
2During the complainant’s cross-examination, it was revealed that she had been using her cell phone while she was in the witness stand. As a result, Mr. Wasif brought an application to stay the proceedings. In the alternative, Mr. Wasif asks that I declare a mistrial.
3The application was heard on May 12, 2026. On May 15, 2026, I dismissed the application with reasons to follow. These are my reasons.
B. Procedural History
4The complainant’s examination-in-chief commenced on July 31, 2025, and continued on July 31, 2025. Pursuant to my earlier ruling, the complainant testified via CCTV in the presence of a support dog, the dog’s handler, and a Victim Witness Assistance Program worker (“VWAP”) (see R. v. Wasif, 2025 ONSC 3434).
5Cross-examination began on July 31, 2025, and continued on August 1, 2025. On that date, the trial was adjourned to allow defence counsel to bring a mid-trial s. 276 application. The application was granted (see R. v. Wasif, 2026 ONSC 535) and the trial resumed on March 5, 2026.
6On the evening of March 5, 2026, the VWAP worker advised Ms. O’Connor that the complainant had been using her phone while she was testifying on March 5, 2026. Ms. O’Connor immediately advised defence counsel, and the matter was addressed before me on the morning of March 6, 2026.
7On March 6, 2026, Ms. O’Connor and Mr. Hurley spoke to the VWAP worker and the dog handler. As a result of those discussions, the parties prepared an agreed statement of facts and made it an exhibit at trial. On the same day, I ordered the complainant not to delete or alter any data on her phone and advised her that she would be provided with legal counsel. At that time, it was expected that the police would request the complainant’s phone for further investigation. I also directed the Crown’s office to address this issue with the VWAP office. Ms. O’Connor advised that this was done.
8The police obtained the complainant’s phone, and an extraction report was prepared. The report was disclosed to the defence.
9Prior to hearing the application, I gave Mr. Hurley the option to continue his cross-examination of the complainant before arguing the application. I also suggested that the application could be argued at the end of the trial, with the benefit of a full trial record. Mr. Hurley opted to argue the application based on a paper record and without cross-examining the complainant on her cell phone use. The Crown agreed with this approach.
C. The Complainant’s Use of Her Cell Phone on March 5, 2026 Comes to Light
10The following is a summary of the agreed statement of facts.
11At some point during the afternoon on March 5, 2026, the dog handler noticed that the complainant appeared to be using her phone to send text messages. The dog handler was positioned within a few feet at the side of the complainant and was able to see the complainant’s phone in her lap with the screen facing the complainant. The dog handler also observed what she believed to be a face visible on the phone. Prior to this observation, the dog handler had not made any previous observations of the complainant using her phone; however, she was not responsible for monitoring the complainant. The dog handler was there to supervise and manage the support dog.
12Upon making these observations, the dog handler attempted to alert the VWAP worker by “mouthing” the word “texting.” The VWAP worker was not positioned in a way that she could observe the phone in the complainant’s lap. The dog handler continued to observe the complainant texting on her phone until the afternoon break. It is unclear how much time passed between the dog handler’s first observation and the afternoon break.
13During the afternoon break, the dog handler relayed her observations to the VWAP worker. The VWAP worker asked the complainant whether she was using her phone during her testimony. The complainant denied this allegation. The denial was untrue.
14When court resumed, the dog handler again noticed the complainant using her phone while testifying. The dog handler observed this occurring until the end of her testimony on March 5, 2026.
15At the end of the day, the VWAP worker asked the complainant whether she had been using her phone. The complainant admitted to using her phone and stated that her phone had been muted. The complainant did not tell the VWAP worker that she had been texting during her testimony. The VWAP worker told the complainant that using her phone during her testimony was inappropriate. The complainant told the VWAP worker that she was not aware that it was inappropriate to use her phone during her testimony.
16Throughout the day during breaks, the VWAP worker observed the complainant having an earphone in her ear. The VWAP worker reminded the complainant to take it out prior to the commencement of her testimony. The complainant complied.
17On the morning of March 6, 2026, the complainant told the VWAP worker that the person on the phone was her boyfriend who lives in Niagara Falls. The boyfriend wanted to be present in court, and the complainant and her boyfriend believed that having him present through her phone was a “good idea”.
18To state the obvious, it was not a good idea.
D. The Extraction Report
19The police prepared an extraction report from the complainant’s device. The extraction report revealed that the complainant was using her phone to “FaceTime” with a person listed in her contact list as “My Hubby.”
20The extraction report confirmed that the complainant had been using her phone during much of her evidence on March 5, 2026. For example, the complainant FaceTimed “My Hubby” during the following times:
(a) 11:21:54 a.m., lasting approximately 52 minutes
(b) 12:16:12 p.m., lasting approximately 22 minutes
(c) 12:54:18 p.m., lasting approximately 2 hours and 10 minutes
(d) 3:08:54 p.m., lasting approximately 1 hour and 46 minutes
21The extraction report also confirmed that the complainant had been texting with various people while she was providing evidence. During the hearing of the application and in his factum, Mr. Hurley emphasized the following message exchange between the complainant and “My Hubby”:
Owner: Like really they shouldn’t be able to ask me about who I was dating when this happened.
My Hubby: Loved an image
My Hubby: This feels like they’re setting u up or something
Owner: They are
My Hubby: Hold on I’m gonna let Amanda read this
My Hubby: She knows a lot more about courts
Owner: They are trying to say the person I was dating left the marks on me
Owner: And that I am trying to pin it on someone else
My Hubby: They have to word things carefully
My Hubby: So do u
My Hubby: Amanda’s gonna text u something
My Hubby: You can’t let emotions get the best of u and be factual
My Hubby: Ya cal legal aid
My Hubby: Tbh this feels like they’re setting u up
My Hubby: [photo sent]
My Hubby: Proof for the courts that he has to be charged for lying
My Hubby: [photo sent]
My Hubby: [photo sent]
My Hubby: [photo sent]
Owner: They definitely are I will tell you why after
My Hubby: These ones are better
Owner: I am gonna post in a minute
Owner: Lost
Owner: Lose
My Hubby: What are they saying now
My Hubby: Just breathe babe
My Hubby: We will deal with it with a new lawyer
Owner: They are trying to say cuz I was self harming at that time I left the marks on myself
My Hubby: Get a new lawyer
My Hubby: Call legal aid babe
My Hubby: ?
My Hubby: I didn’t hang up
My Hubby: ?
Owner: Call and mute
My Hubby: Keep ur cool with them okay babe just till we get u a new lawyer ik they led pissing u off rn about everything
Owner: I’m about to walk out I’m fucking down
Owner: I’m gonna punch a bitch
My Hubby: What’s going on babe
Owner: They are trying to say he didn’t touch me
My Hubby: Wtf
My Hubby: That’s fucked up
My Hubby: I swear if you go to jail for this im gonna beat his ass
My Hubby: U should call legal aid rn or something
22The photos sent by “My Hubby” were included in the extraction report. The photos appear to be the results of a Google AI search with respect to Legal Aid Ontario, what constitutes perjury and possible consequences for perjury.
23The extraction report also includes messages from the complainant to “My Hubby” where she is telling “My Hubby” that they need to be on mute as court is starting.
E. Governing Legal Principles
(a) Abuse of Process and Stay
24An abuse of process arises in situations where state conduct is egregious and seriously compromises trial fairness and/or the integrity of the justice system (see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50; and R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at para. 27).
25There are two types of state conduct that meet the threshold for establishing abuse of process: (1) conduct that compromises trial fairness (“main category”); and (2) conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”) (see R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; and Brunelle, at para. 27).
26A finding that there has been an abuse of process engages the accused’s Charter rights. Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category engages the principles of fundamental justice in s. 7, which protect accused persons from any state conduct that is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (see Regan, at para. 50; Nixon, at para. 41; Babos, at para. 31; and Brunelle, at para. 29).
27Whether under the common law or s. 24(1) Charter, a stay of proceedings will be ordered only where the situation meets the high threshold of being one of the “clearest of cases” (Brunelle, at para. 29). To be the “clearest of cases,” three conditions must be met:
(1) There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);
(2) There must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32); and
(3) Where there is still uncertainty over whether a stay of proceedings 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” (Regan, at para. 57; Babos, at para. 32).
28The requirements for obtaining a stay are the same for both categories of abuse of process (Babos, at para. 33). While the framework is the same for both categories, the test may “play out differently” depending on which category is invoked (Babos, at para. 33).
29When the main category is relied upon, the question at the first stage of the stay test is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial. The focus is on whether there is ongoing unfairness to the accused (Babos, at para. 34).
30On the other hand, when the residual category is relied upon, the question at the first stage is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system (Babos, at paras. 34-35).
31At the second stage, the question is whether any other remedy short of a stay can redress the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial or whether it relates to the integrity of the justice system. Where the concern is trial fairness, the focus is on restoring an accused’s right to a fair trial. In this context, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, remedies must be directed towards that harm to the justice system. The focus is on whether an alternative remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward (Babos, at paras. 38-39).
32At the balancing stage, when the main category is relied upon, it will often be clear by the time the balancing stage has been reached that ongoing trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these “clearest of cases,” the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials (Babos, at para. 40).
33When the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings or having a trial despite the impugned conduct. In conducting the balancing between the two options, the court must consider various factors, such as:
(i) The nature and seriousness of the impugned conduct;
(ii) Whether the conduct is isolated or reflects a systemic and ongoing problem; and
(iii) The circumstances of the accused, the charges the accused faces, and the interests of society in having the charges disposed of on the merits.
The more egregious the state conduct, the greater the need for the court to dissociate itself from it. Where the state conduct offends the community’s sense of fair play and decency, it is less likely that society’s interest in a full trial on the merits will prevail in the balancing process (see Babos, at paras. 40-41).
(b) Mistrial
34It is well established that a mistrial is a remedy of last resort that should only be declared in the clearest of cases when no remedy short of that relief will adequately redress the actual harm occasioned (see R. v. Toutissani, 2007 ONCA 773, at para. 9; R. v. Jeanvenne, 2010 ONCA 706, 270 O.A.C. 22, at para. 58). A declaration of a mistrial should only be made where there has been a fatal defect impacting the administration of justice in a way that cannot be cured by remedial measures (see R. v. Arabia, 2008 ONCA 565, 240 O.A.C. 104, at para. 52). A key consideration will be “whether there is a [TRANSLATION] “real danger” of prejudice to the accused or danger of a miscarriage of justice” (R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, citing R. v. Lessard (1992), , 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205, leave to appeal refused, [1992] 3 S.C.R. vii).
35In determining whether to grant a mistrial application, the court must consider whether other less drastic steps could remediate the issues that threaten the trial’s fairness (see R. v. Donnelly, 2023 ONCA 243, at para. 16; R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at para. 147; and R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79). While a mistrial may be an appropriate remedy where the integrity of the decision-making process or the right to a fair trial have been compromised, it always remains a remedy of last resort. As the Court of Appeal recently pointed out in R. v. Sinclair, 2025 ONCA 643, at para. 19, “[w]here something short of a mistrial can safely repair a compromised trial, the option is to choose that something.”
F. Analysis and Findings
(a) Abuse of Process and Stay
36Mr. Wasif relies on both the main category and the residual category in support of his request for a stay. The “state” conduct that is alleged to have undermined both trial fairness and the integrity of the justice system is the VWAP worker’s decision to delay reporting the complainant’s conduct.
37Before examining the three-part test for a stay, I make two observations.
38First, an application for a stay is focused on “state” conduct. In this case, it is important to remember that it is the complainant’s conduct that has impacted trial fairness. The VWAP worker did not encourage or condone the complainant’s use of her cell phone. The VWAP worker did not observe the complainant’s use of her cell phone during her testimony. The “state” conduct at issue is the VWAP worker’s decision to delay reporting of the dog handler’s observations that the complainant was using her phone during her testimony.1 The VWAP worker was not required to follow the complainant around during breaks to ensure that the complainant was not using her phone in an untoward manner. Similarly, the VWAP worker was not required to “listen in” on the complainant’s conversations when the complainant was not testifying in court.
39Second, the VWAP worker’s decision to delay reporting the allegation was a serious lapse in judgment. As soon as the VWAP worker was advised that the complainant was using her phone, she should have alerted Ms. O’Connor. No “investigation” was necessary. The complainant’s initial denial was irrelevant. Once the allegation was made, it was for the parties and this Court to determine how best to proceed. As explained below, the VWAP worker’s mistake had the effect of allowing the complainant’s improper conduct to continue.
40I turn now to addressing the first question as it relates to the residual category.
41I find that in the circumstances of this case, the VWAP worker’s lapse in judgment does not taint the prosecution such that it has undermined the integrity of the judicial process.
42Given the agreed statement of facts, I find that the VWAP worker’s decision to delay reporting the allegation was a mistake. It was not, however, a deliberate or malicious act. It was not intended to harm Mr. Wasif or the justice system. I accept that neither deliberate bad faith nor malicious conduct is necessary to engage the residual category. That said, mistakes are not the type of conduct that is usually captured by the residual category (see R. v. Williams, 2017 ONSC 572, at para. 212).
43The justice system is operated by people. People make mistakes. While mistakes can impact a trial, the justice system is not so rigid that it must dissociate itself from every innocent mistake. Even in the context of a lost evidence application, the jurisprudence recognizes that mistakes happen and a breach of s. 7 of the Charter will only occur when the evidence has been lost by “unacceptable negligence” (see R. v. Bero (2000), , 137 O.A.C. 336 (C.A.), at para. 32). In this case, the VWAP worker’s mistake was isolated to March 5 and her treatment of the dog handler’s initial observations. Undoubtedly, the dog handler’s allegation would have caught the VWAP worker by surprise and, as a result, she may not have known how best to address the issue. The VWAP worker’s mistake, while serious, does not offend societal notions of fair play and decency. As a result, Mr. Wasif has not established an abuse of process with respect to the residual category.
44I turn now to the main category.
45Before examining the first question, it is important to properly characterize the impact of the VWAP worker’s decision to delay reporting. The VWAP worker’s error allowed the complainant to continue using her cell phone during cross-examination. That said, the VWAP worker’s conduct only exacerbated a problem that existed prior to her lapse in judgment. Even if she had reported the issue when it was first raised by the dog handler, nothing different would have happened. The complainant would have used her cell phone, albeit for a shorter period of time; the cross-examination would have likely been adjourned so that the police could investigate the complainant’s use of her cell phone; and Mr. Wasif would have either brought this same application or continued to cross-examine the complainant on using her cell phone during her testimony.
46Despite the above, I find that the complainant’s use of her cell phone during cross-examination impacted trial fairness. While under cross-examination, the complainant was not permitted to communicate with anyone about her evidence. I cautioned the complainant about talking to anyone about her evidence during cross-examination on July 31, 2025. When the trial was adjourned on August 1, 2025, I advised the complainant that she would be permitted to speak to the Crown about the s. 276 process, but not about the evidence. These warnings are routinely given to witnesses during a trial to ensure, amongst other things, that witnesses do not tailor their evidence or impact the evidence of future witnesses (see R. v. Latimer, (Ont. S.C.), at para. 27; and R. v. Spence, 2011 ONSC 2406). In this case, despite my caution to the complainant, she decided to communicate with “My Hubby” and others while she was testifying. Some of the communications related to what was occurring at trial.
47In R. v. Attayee, 2022 ONCJ 315, Chamberlain J. commented on the impact to trial fairness that was occasioned when a police officer exchanged text messages with another officer who was testifying. In that case, the messages were not before the court, nor was an abuse of process application commenced. In acquitting the accused, Chamberlain J. found that the text messages prejudiced the accused’s fair trial rights, in part, because the act of text messaging with a witness while they were testifying left the impression that the trial was not fair (see paras. 31-38). I find that Mr. Wasif’s fair trial rights were impacted in a similar way. The complainant’s conduct affected the appearance of a fair trial and the VWAP worker’s mistake permitted the complainant to continue her clearly inappropriate conduct. As explained below, the degree to which Mr. Wasif’s fair trial rights have been impacted is not as serious as was found in Attayee.
48My finding that trial fairness has been impacted does not end the analysis. I must go on to consider whether Mr. Wasif has established that the impact on trial fairness will be, “manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; and Babos, at para. 32). For the reasons identified below, I find that the trial unfairness caused by the complainant’s conduct will not be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”.
49First, despite Mr. Hurley’s submission to the contrary, both Attayee and Latimer are distinguishable from this case.
50In Attayee, the Court was not provided with the nature of the discussions that occurred during the officer’s testimony. In that context, Chamberlain J. found that the communications, “undermined the administration of justice because it left the impression that the trial was not fair” (at para. 34). In the present situation, the text communications were obtained and disclosed. Unlike Attayee, neither the accused nor the Court is, “blind to the content and nature of those communications” (at para. 33). Another distinguishing feature is Chamberlain J.’s finding that the improper communications caused a “rift” between the accused and his counsel of record. This “rift” led to counsel being removed from the record and the accused being without counsel. In that way, the prejudice at issue in Attayee was more concrete than the prejudice at issue in this case.
51In Latimer, a police officer who was under cross-examination was overheard by the court reporter having a conversation with another officer who was going to be a witness at trial. O’Connor J. found that the testifying officer’s communication with the second officer had created a serious risk that the second officer’s evidence would be tainted (at para. 33). As a result, O’Connor J. precluded the second officer from testifying at trial and dismissed the application for a stay of the prosecution. In this case, there is no risk that a future witness’s evidence has been tainted. The complainant’s communications were all with individuals who are not potential witnesses at trial.
52Second, the contents of the messages do not reflect an attempt to tailor the complainant’s testimony. In many of those messages, the complainant expresses her dissatisfaction with being questioned on her prior sexual activity and the suggestion that her injuries were not caused by the accused. In response, she receives advice from “My Hubby”:
(a) To “word things carefully”;
(b) To “not let emotions get the best of u and be factual”
(c) To call Legal Aid; and
(d) To get a new lawyer.
Additionally, “My Hubby” sent the complainant Google AI search results with respect to perjury. Presumably, this was sent to the complainant because either “My Hubby” was concerned that “they’re setting [the complainant] up or something”2 or because “My Hubby” believed that the accused should be charged for perjury.3
53While the complainant’s use of her phone during her testimony is very troubling, the messages do not demonstrate an attempt to influence the substance of the complainant’s evidence. As Mr. Hurley conceded in oral argument, there was no attempt to “coach” the complainant. Similarly, the other messages included in the extraction report do not relate to the substance of the complainant’s evidence.4
54Third, Mr. Hurley will undoubtedly cross-examine the complainant on her communications during her March 5 testimony. Importantly, Mr. Hurley will have the extraction report to aid him in his cross-examination. This is Mr. Wasif’s true remedy.
55Mr. Hurley can use the extraction report to ascertain when the complainant was using FaceTime and when the messages were exchanged and cross-reference that to the timing of the audio of the March 5, 2026, cross-examination. Through this exercise, Mr. Hurley will be able to effectively cross-examine the complainant on what, if any, impact the messages and her use of FaceTime had on her evidence. As the trier of fact, I will be able to evaluate the complainant’s credibility having regard to the extraction report, the agreed statement of fact, and the evidence she provides upon the resumption of the trial.
56Fourth, there is no risk that the conduct will occur again in the future. In my oral ruling on the application, I advised the Crown and Mr. Wasif that the complainant would be permitted to continue to testify via CCTV in the presence of a support dog, the dog handler, and a VWAP worker. I also ordered that the complainant would be required to provide all electronic devices, including smart watches or any device that permits communication, to the VWAP worker.5
57On a more systemic level, Ms. O’Connor has spoken to the VWAP supervisor. I am confident that this case will be brought to the attention of VWAP workers, and I expect that VWAP offices will take steps to ensure that employees are properly trained on how to address these types of situations. To that end, I direct Ms. O’Connor to share this endorsement with the supervisor of VWAP services in Oshawa. I encourage the Oshawa VWAP office to share this decision with other VWAP locations for educational purposes. As the use of remote testifying becomes more routine, the potential for abuse grows. The response to this risk is not to abandon the use of remote testimony where appropriate. Rather, the response is to be more vigilant.
58Mr. Wasif argues that there is no way of telling whether the complainant was using her phone during the first two days of trial and that there is no recording of what was verbally said during the “FaceTime” calls. Mr. Wasif argues that these uncertainties warrant a stay of proceedings. I reject both arguments.
59With respect to the complainant’s previous attendances, I find Mr. Wasif’s argument to be speculative. Every time the complainant testified, she testified with the aid of a support dog. A dog handler, though not necessarily the same dog handler, was present and no issue of improper communications were raised. The fact that the complainant used her phone during her testimony on March 5, 2026, is not, in and of itself, sufficient to support a finding that she used her cell phone during her testimony on previous occasions. Moreover, the uncertainty of whether the complainant used her phone on earlier occasions does not necessitate a stay of the prosecution, as Mr. Hurley will certainly cross-examine the complainant on this issue when the cross-examination resumes.6
60Finally, on the record before me, I find that there were not any verbal communications between “My Hubby” and the complainant during her testimony. I arrive at this conclusion for four reasons.
61First, no one observed her speaking to anyone else during her testimony. If she had been speaking with anyone during her testimony, this would have been obvious to the dog handler, the VWAP worker, and those of us in court.
62Second, based on the text messages, it appears that “My Hubby” was muted during the complainant’s testimony. Consequently, “My Hubby” could not verbally communicate with the complainant while she was testifying.
63Third, the agreed statement of facts establishes that the complainant was not wearing earphones during the testimony. This is consistent with my observations of the complainant during her testimony. “My Hubby” could not verbally communicate with the complainant during her testimony without being heard either by the Court or by the dog handler and VWAP worker.
64Fourth, the text messages suggest that “My Hubby” could not hear what was occurring in court for at least some period of time. This is demonstrated by “My Hubby’s” request for updates and the complainant telling “My Hubby” what was occurring in court. This gives rise to an inference that the complainant may have muted herself.
(b) Mistrial
65Mr. Wasif has not established that a mistrial is an appropriate remedy. I come to this conclusion for the following reasons:
(a) As noted above, full disclosure has been made with respect to the complainant’s use of her cell phone on March 5. The complainant will be cross-examined with the use of the extraction report. The complainant’s conduct on March 5 will certainly be considered when I evaluate the credibility and reliability of her evidence.
(b) Given the seriousness of the charges, even if a mistrial was granted a new trial is inevitable. A new trial will not change anything. At a new trial, Mr. Hurley will cross-examine the complainant on the use of her cell phone on March 5. In this way, a mistrial does not address the prejudice caused by the complainant’s use of her phone on March 5.
(c) There is no evidence that the complainant was attempting to gain any advantage by having “My Hubby” on the phone during her testimony or by texting him during her evidence. As noted above, the messages do not reflect an attempt to “coach” the complainant’s evidence.
(d) Any influence that the messages had over the complainant can be fully explored through cross-examination.
Conclusion
66I am not concerned that the complainant will continue to use her phone during the remainder of her testimony. Steps will be taken to preclude the use of any electronic devices. Any prejudice that has already been occasioned on Mr. Wasif has been effectively remedied through the disclosure of the extraction report and Mr. Hurley’s upcoming cross-examination of the complainant. As such, Mr. Wasif’s application for a stay or, in the alternative, a mistrial is dismissed.
The Honourable Justice S. Mathai
Date: July 10, 2026
Footnotes
- The Crown did not argue that VWAP is not part of the “state.” I note that VWAP is operated under the umbrella of the Ministry of the Attorney General. Without having the benefit of full argument, I will assume, without deciding, that the VWAP worker’s conduct is “state conduct.”
- It is not clear who “they’re” is in this text message.
- After sending the Google AI images in relation to perjury, “My Hubby” sent a message to the complainant as follows: “Proof for the courts that he has to be charged for lying.”
- The complainant did exchange text messages with a contact labeled as “Mom” and others. In those exchanges, the complainant expresses her dissatisfaction with the pace of the trial.
- Upon the resumption of the trial, the complainant confirmed that all electronic devices were provided to the VWAP worker.
- Upon the resumption of the trial, the complainant was cross-examined on this issue. The complainant testified that she did not believe she was text messaging during her previous testimony, but it was possible that she texted once or twice on the previous days when she testified. The complainant denied making “calls” during her testimony on any date prior to March 5, 2026.