WARNING
The court hearing this matter directs that the following notice be attached to the file:
This hearing is governed by section 278.9 of the Criminal Code:
278.9…Publication prohibited.— (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
(2) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
J.L.
Before Justice L. Botham
Ruling on 278.94 Application Re: B.M. released on March 24, 2022
Counsel: Marnie Goldenberg, Tara Cassidy and Mark Reiger …..……. Counsel for the Crown Allan Lobel and Stefan Ruis ……………………………..… Counsel for the accused J.L. Amy McQuaig ……………………………………..……………………….. Counsel for B.M.
Introduction
1The Applicant seeks leave to introduce certain records in his possession and to cross-examine B.M. with respect to their contents as well as to provide evidence with respect to the matters set out in those records. On March 8, 2022, a hearing was held per s. 278.94 of the Criminal Code to determine which if any of those records and the material contained within them would be admissible at this trial.
November 28, 2015 Messages
2On November 28, 2015, the Applicant and B.M. exchanged a series of messages on Facebook. The messages begin at 2:50 p.m. with the Applicant asking B.M. ‘grab lunch’ and her replying ‘that would be nice”.
The Applicant then sends a message referencing the previous evening, stating “I feel like we did a lot of PDA”. B.M. responds and agrees that they had. The Applicant describes them as the two horny teens at the prom and B.M. agrees. There is a reference by B.M. to the Applicant’s car stunt and that PDA is fun too. All parties I think agree that PDA is understood to mean public display of affection.
3Crown counsel and counsel for B.M. object to the admissibility of this evidence. Both assert that it is too generic and therefore does not comply with the s. 276 requirement that the evidence relate to a specific incident of sexual activity. I don’t agree with that submission. The evidence relates to a specific event, namely the previous evening and both parties suggest that something sexual occurred. I am satisfied that can be said to be a specific instance of sexual activity.
4In the course of submissions, I voiced concern that without knowing the specifics of what was being referenced in the November 28th messages, it would be difficult to assess whether the messages constituted a previous inconsistent statement on the part of B.M. Having considered the submissions of all parties and reviewed again the Applicant’s materials, I am satisfied sufficient details have been provided to demonstrate the relevance of the messages.
5I say that for the following reasons. I understand B.M. when interviewed by the police stated that her relationship with the Applicant was one of friendship and that she had never had sexual contact with him before that evening. This series of Facebook messages would appear to contradict that assertion.
6To be clear, the prior sexual activity is not relevant to whether or not B.M. consented to sexual activity at the time of the offence but that is not the basis upon which the Applicant seeks its admission. I also agree that it may be that B.M.’s evidence with respect to what was being discussed on November 28th, will explain the apparent contradiction between her statement to the police and the electronic messages but that is something that I will have to assess as the trial proceeds. The fact that a piece of evidence may or may not accomplish exactly what its proponent hopes for does not remove its potential relevance.
7Judging from the nature of the messages exchanged, it does not appear that the incident being referenced in the November 28th messages, had been an upsetting or embarrassing incident from the perspective of the complainant. Its admission does not cause me concern that as a result other complainants would be reluctant to report a sexual assault. I am satisfied that the evidence is not being adduced for the purpose of supporting either of the two prohibited inferences and do not think the admission of this evidence would prejudice the proper administration of justice. I am prepared to admit the record as evidence at this trial and to allow the Applicant to cross-examine the complainant on the content of it as well as to testify himself with respect to the incident discussed in the record.
April 29, 2016 Messages
8The Applicant seeks to introduce into evidence electronic messages exchanged between himself and B.M. on April 29, 2016. These messages were exchanged prior to the two meeting in Hamilton at a party and then returning to his residence where B.M. says she was sexually assaulted by the Applicant. He also seeks leave to testify with respect to those communications.
9To summarize the messages, there is a brief discussion of whether B.M. will want to spend the night at the Applicant’s residence after the Hamilton party. Apparently, it was anticipated that the Applicant’s daughter would be home and that therefore the Applicant says there will be no hanky panky, well as long as we keep it quiet.
10It is asserted by the Applicant that that exchange of information, specifically that his daughter would be home specifically contradicts B.M.’s statement to the police that she did not plan on sleeping in the Applicant’s room, as she assumed she would be sleeping in his daughter’s bed.
11It seems that all parties concede that there may be some relevance to that aspect of the communication. Counsel for B.M., while challenging the admissibility of the entire exchange concedes that it could be edited to allow for cross-examination on the portion of the message that states that the Applicant’s daughter will be home.
12The Applicant seeks leave to adduce the entire exchange. It is asserted that there is a flirtatious aspect to the messages which again has the potential to contradict B.M.’s position to the police that she and the Applicant were only friends. There is certainly a connection between the messages and the offending conduct. It may be that the two events could be seen as sufficiently connected to constitute part of the same transaction. In this case, however, since I am considering the admissibility of the messages themselves, which meet the 278.1 definition of ‘record’, I still must consider their admissibility within the framework set out in s. 278.94.
13Although the messages don’t reference actual sexual activity, there is a flirtatious aspect to them which out of an abundance of caution, I am prepared to consider their admissibility per s. 276(2).
14The communications are not being admitted for the purpose of supporting either prohibited inference. I agree with the Applicant that they may have impeachment value, given their potential to contradict B.M.’s characterization of their relationship. As well the messages are relevant in that they provide a contemporaneous record of the discussions which led to B.M. deciding to come to the Applicant’s residence. The communications are in and of themselves rather benign and I can see no basis to find that their admission would have a chilling effect on the decision of other sexual complainants to come forward. When I apply the factors that I am required to consider, I am satisfied that the messages in their entirety can be admitted as evidence at this trial and that the Applicant can testify with respect to those communications.
April 30, 2016 Messages
15The Applicant also seeks to introduce communications between himself and B.M. on the day following the alleged sexual assault. On April 30, 2016, the Applicant and B.M. exchanged Facebook messages.
16At 6:19 AM, B.M. messages the Applicant, “I wasn’t sleeping well so I snuck out [heart symbol] sleep tight.” At 12:09, B.M. sends the Applicant an emoji of a face making a kiss followed by “I just woke us; Up.*” At 12:45, then B.M. sends the Applicant a message beginning “Hey handsome”, after which she tells the Applicant to “check the Fit Bit” followed by an emoji depicting a face with a tongue sticking out. The exchange which follows shows the Applicant and B.M. discussing their sexual encounter the previous evening.
17Counsel for B.M. challenges the admissibility of these messages on the grounds of relevancy. It is submitted that they are consistent with her statement to the police that she left early and therefore have no impeachment value.
18I understand that when describing the incident to the police, B.M. stated that she just “kinda lay there waiting and she snuck out around 5:30 in the morning”. That could be interpreted as a rather furtive departure, essentially fleeing the apartment. The Applicant submits that the series of messages between the two parties, provides an alternative narrative. I can see the relevance of these messages, which relate directly to the subject matter of the charge and which could arguably be characterized as a prior inconstant statement by the complainant.
19Had the Applicant sought solely to testify with respect to this conversation without seeking to introduce the actual communications, I would have been satisfied that the conversation was sufficiently connected to the subject matter of the charge so as not to trigger s. 276. However, since the actual message exchange does meet the s. 278.1 definition of ‘record’ and therefore triggers the screening mechanism of s. 278.92(4), I have considered its admissibility within the framework of the 276(2) factors.
20The communications are not being admitted for the purpose of supporting either of the two impermissible inferences set out in s. 276(1). I am satisfied that they have relevance to the issues I will need to decide and are necessary to allow the Applicant to make full answer and defence. The communications relate directly to the subject matter of the charge and I am not persuaded that their probative value is outweighed by the danger of prejudice to the proper administration of justice, in the sense that their admission might discourage others to report a sexual offence or prejudice the complainant’s personal dignity or right of privacy. When I apply the factors that I am required to consider, I am satisfied that the messages in their entirety can be admitted as evidence at this trial and the Applicant can testify with respect to them.
May 2016 to January 2017 Communications
21Finally, the Applicant seeks to introduce into evidence communications between himself and B.M. between May 2016 and January 2017, including a photograph of B.M.
22It is conceded by all parties that the communications themselves do not trigger any s. 276 concerns and B.M. does not assert any privacy concerns with respect to them. B.M. is opposed to the admission of the photograph taken of her by the Applicant. She does acknowledge that such a photograph was taken. I understand from the Applicant’s materials that with that acknowledgement there no longer exists a need to seek to admit the photograph.
23Given the concessions of counsel and my review of the communications, I am satisfied that they are admissible as evidence at this trial.
Released: March 24, 2022 Signed: Justice L. Botham