Decision hinges on admissibility of complainant’s texts, recordings

By John L. Hill

Law360 Canada (November 22, 2023, 1:26 PM EST) --
John L. Hill
John L. Hill
It is not unusual to hear from old friends during the holiday season. But on Dec. 22, 2020, Mujtaba Ilmi received a telephone call from a former girlfriend that he would regret.

She had been texting this longtime acquaintance for less than a week before to advise Ilmi that she seemed to recall that Ilmi and another man had sexually assaulted her over two years previously. Ilmi denied this and revealed his side of the story by returning texts.

The Dec. 22 call was recorded and date stamped to verify the woman’s complaint to police that she had made the day previously. She had not yet given a written statement to the police. Armed with the texts and recording of her conversation with Ilmi, she turned the information over to the police and a charge was laid. Ilmi defended himself in court, saying that the texts and the recording were improper and violated his constitutional rights under ss. 7 and 8 of the Charter.

The Ontario Superior Court of Justice considered the case in June 2023, with a decision on the Charter issues handed down in early October (R. v. Ilmi 2023 ONSC 5602).

The court considered the release of text information separately from the telephone conversation. The court held that the receipt by police of the texted statement did not contravene s. 8 of the Charter because the impugned text messages were sent and received before the complainant spoke to the police. Charter protection can be accessed only if a state actor violates a citizen’s right to a reasonable expectation of privacy relating to the subject matter of the material seized (R. v. Morgan [2020] O.J. No. 2330). But Ilmi argued that the Supreme Court decision in R. v. Marakah 2017 SCC 59, suggested the police should have been acting on a warrant before looking at the text messages.

However, the Superior Court judge, P. Tamara Sugunasiri, held that Marakah does not stand for the proposition that anytime the police come into possession of text messages, they must turn a blind eye unless they have been granted a warrant to seize the material. There was no seizure here because a person voluntarily provided the information and was directly interested in the messages. The court accepted the reasoning of Justice Anne Molloy in R. v. Amdurski 2022 ONSC 1338, where she held it would be absurd not to accept private communications voluntarily, provided that the subject matter could be elicited orally by the complainant at trial. This reasoning is supported by the obiter in the judgment of Justice David Doherty in R. v. Orianis-Hapsburgo 2017 ONCA 649. In demanding the elimination of the text messages from the evidence, the accused has not established that it was state interference with his privacy to substantiate a Charter violation.

It is a different story when one considers the audio tape of the Dec. 22 phone call. The complainant had visited the Toronto Police Service the day before. The police had cautioned the complainant of the difficulties in proving a historical sexual assault. On the balance of probabilities, the call was likely made to substantiate a criminal charge. Therefore, the complainant was motivated as a state actor in gathering incriminating evidence. This triggered an s. 8 violation.

Furthermore, since the complainant was now acting as a state agent, there was also a violation of Ilmi’s right to remain silent, as guaranteed by s. 7. The court held that the complainant was actively seeking out information by asking questions that could be characterized as akin to an interrogation. The complainant played upon her longtime friendship with the accused and his desire to relieve her of the trauma of a suspected sexual assault when he openly discussed factual matters that should not have been touched upon without the advice of counsel. Even though the police could not be faulted for the complainant’s wrongful assumption of her role as an evidence collector, the accused was deprived surreptitiously of his right to remain silent.

In deciding the Charter violation’s impact on the admissibility of evidence collected, the court turned to R. v. Grant 2009 SCC 32. There was no intentional state conduct, but the impact of the breach of Charter protections was significant. This case turned society’s interest in adjudicating the case on its merits. The Crown admitted that should the audio recording be eliminated, the case against the accused would not be dealt a significant blow. It was, therefore, decided that the audio of the phone call would be excluded but that the text messaging could be considered.

No doubt Ilmi would now realize that when accused of a serious crime, the Dec. 22 phone call would have been handled best with a simple “Merry Christmas.”

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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