WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
R. v. Y.S.T., 2025 ONCJ 405
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
Y.S.T.
Before Justice David Porter
Heard on July 21, 2025
Ruling on Motion for Directions Released on July 29, 2025
S. Dosanjh ……….……………………………………………………………………… for the Crown
Maria Rosa Muia …………………………………………………………………...… for the Applicant
Porter J:
1The Applicant is charged with the sexual assault of the complainant, his former spouse.
2As summarized in the motion materials, the Applicant and the complainant met through an online platform in July 2015, they moved in together in August 2015 and were married in March 2016. They have been married for approximately eight years and have two children.
3The complainant alleges that the Applicant assaulted and sexually assaulted her during the course of their marriage.
4In April 2016, the complainant became pregnant. The complainant alleges that sometime between April 1, 2016 and January 9, 2017 the Applicant began to force the complainant to have anal intercourse with him without her consent. The complaint alleges that the sexual incidents occurred approximately 2 to 3 times per month from April 2016 until the relationship ended in April 2024.
5The Applicant seeks to rely on text messages sent on 15 days between June 2, 2023 and May 16, 2024 on WhatsApp between the Applicant and the complainant.
6The text messages were provided under seal to the court but not to the Crown. The Crown has acknowledged that the motion materials contain sufficient information about the content of the messages that the Crown was able to make submissions on whether the messages constituted “records” under section 278.1 of the Criminal Code.
7It was agreed with counsel that the application heard on July 21, while originally framed as an application under s. 278.92, would be treated by the court as a motion for directions, pursuant to the decision of the Supreme Court of Canada in R. v. J.J., 2022 SCC 28, for a determination by the court of whether the WhatsApp text messages at issue constitute “records” under section 278.1, in which case the provisions of section 278.92 - 278.94 would govern the procedure for the determination of the admissibility of these records in this trial.
8It is agreed by the Crown and defence that, if the court concludes that the text messages at issue are not “records”, as defined in section 278.1, then sections 278.92 - 278.94 do not apply, and the admissibility of the records in the trial is properly determined on a case-by-case basis as the trial proceeds.
The Law on the Meaning of “Records” Under s. 278.1
9Under s. 278.1, there are 2 categories of records; enumerated records and non-enumerated records.
10It is clear from my review of the messages that they are not enumerated records and so the issue becomes whether they fall into the category of non-enumerated records for which the complainant would have a reasonable expectation of privacy.
11Record is defined in s. 278.1 as follows:
“278.1 For the purposes of sections 278.2 to 278.92, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.”
12In R. v. J.J., 2022 SCC 28, the Supreme Court of Canada has provided the following extensive and detailed guidance on the determination of whether a document is a non-enumerated record under s. 278.1 for which a complainant would have a reasonable expectation of privacy at paras 38 - 72 of its decision:
“(a) Two Groups of Records
38The definition of “record” creates two distinct groups: (1) records that fall within the enumerated categories (“enumerated records”); and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy (“non-enumerated records”).
(b) Identifying Non-Enumerated Records
42Ultimately, we conclude that a non-enumerated record will only be captured by s. 278.1, in the context of the record screening regime, if the record contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity. As we will explain, this threshold is informed by interpreting the text and scheme of the record screening regime. We then provide a framework for assessing whether a piece of evidence qualifies as a non-enumerated record that must be vetted under the record screening regime.
(i) Text and Scheme of the Record Screening Regime
43The text and scheme of the record screening regime reveal Parliament’s intention to narrow the scope of records. Parliament deliberately limited the regime to “personal information for which there is a reasonable expectation of privacy”. Both elements of this phrase – “personal information” and “reasonable expectation of privacy” – serve to delimit the scope of records and shed light on the nature of the privacy interests at issue, as do the factors set out in s. 278.92(3).
- Personal Information
44The term “personal information” invokes the concept of informational privacy. Informational privacy protects the ability to control the dissemination of intimate and personal details about oneself that go to one’s “biographical core” (R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293; see also R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 45-48). As this Court held in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, informational privacy is “based on the notion of the dignity and integrity of the individual” (p. 429).
45Complainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity. As this Court has observed in the past, the “dissemination of highly sensitive personal information” can result “not just in discomfort or embarrassment, but in an affront to the affected person’s dignity” (Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 7). To reach the level of an impact on dignity, an intrusion on informational privacy must “transcen[d] personal inconvenience by reason of the highly sensitive nature of the information that might be revealed” (Sherman Estate, at para. 75; see also para. 73).
- Reasonable Expectation of Privacy
47In particular, two principles from the s. 8 jurisprudence are instructive in determining whether complainants have a reasonable expectation of privacy under s. 278.1, as it applies to the record screening regime: (1) the person claiming a privacy right must have a subjective expectation of privacy that is objectively reasonable in the circumstances (R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45; see also Jarvis, at paras. 35‑43); and (2) a reasonable expectation of privacy only engages legally recognized privacy interests (Mills, at para. 99). Both of these principles establish that the privacy interests at issue must meet a high threshold.
48However, we do not adopt the content-neutral approach from the s. 8 jurisprudence. Under s. 8, a content-neutral approach ensures that an accused may still have a reasonable expectation of privacy regardless of the legal or illegal nature of the items sought (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at pp. 49-50). Section 8 protects against unreasonable state search and seizure, therefore, the state is not permitted to engage in ex post facto reasoning to justify unconstitutional searches. This rationale does not apply in the present context as state search and seizure is not at issue.
- Factors in Section 278.92(3)
51The factors outlined in s. 278.92(3) shed light on the interests implicated by the record screening regime, reinforcing our conclusion that Parliament intended to safeguard highly personal information related to complainant dignity. These factors include:
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
52A complainant’s privacy interests in the information contained in a record are meant to be assessed against these competing factors. If the information in a record does not engage the factors designed to protect the complainant’s personal dignity and privacy interests, or does so only marginally, this would be a clear indication that the document is not a record at all.
53In our view, s. 278.1 presupposes that a certain level of privacy must be engaged; namely, this provision concerns only records that could cause “potential prejudice to the complainant’s personal dignity”. These factors suggest that the scheme is not intended to catch more mundane information, even if such information is communicated privately. Moreover, given the accused’s right to make full answer and defence, mere discomfort associated with lesser intrusions of privacy will generally be tolerated. In this context, a complainant’s privacy in open court “will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self” (Sherman Estate, at para. 74).
(ii) Framework to Apply
54In light of Parliament’s intent, the relevant jurisprudence and the statutory scheme, a non-enumerated record will fall within the definition of s. 278.1 if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity. As previously stated, this interpretation is specific to the record screening regime. To determine whether a record contains such information, a presiding judge should consider both the content and context of the record.
(iv) Summary of the Analytical Process
68Having defined the scope of “records”, we will now provide an outline of the analytical process that should be applied by a court to determine if evidence constitutes a “record”.
69The presiding judge should first determine if the proposed evidence contains information that falls under s. 276. If the evidence falls under both ss. 276 and 278.1, as stated above, the judge should assess the evidence as s. 276 evidence.
70If the proposed evidence does not fall under s. 276, the judge should then determine whether it is a “record” under s. 278.1. If the evidence does not come within one of the enumerated categories, the inquiry should focus on whether it contains personal information for which there is a reasonable expectation of privacy. Where the evidence is found to be an enumerated or non-enumerated record, the record screening regime is engaged.
71A non-enumerated record will be caught by the record screening regime if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity. This assessment considers the content and context of the record. Electronic communications are subject to this analysis like all forms of records. In addition, records of an explicit sexual nature not covered by s. 276 because they concern the subject matter of the charge will often attract a reasonable expectation of privacy and fall under the record screening regime.
72When it is unclear whether the evidence is a “record”, counsel should err on the side of caution and initiate Stage One of the record screening process. To be clear, under the record screening regime, the accused will be in possession or control of the evidence at issue, and they will know the context in which the evidence arose. For this reason, the accused will be well equipped to discern whether the evidence is a “record” and to make submissions on this point, if need be.”
Motion For Directions
13In J.J., supra, the court states that a motion for directions may be brought to determine if documents are “records” and therefore subject to the ss. 278.92-.94 regime for the determination of admissibility.
14The Court states at paras.103-105:
“In light of the uncertainty regarding the scope of records, some defence counsel have on occasion brought a motion for directions before engaging in the procedure under ss. 278.92 to 278.94, to determine whether the particular evidence comes within the definition of a “record” under s. 278.1. Motions for directions are not explicitly contemplated by the statutory language of the record screening regime: they are purely a discretionary exercise of the presiding judge’s trial management power.
104The test we have articulated for interpreting s. 278.1 is designed to assist counsel and judges in reducing the need for motions for directions. However, in cases where the accused does bring a motion for directions, the presiding judge must decide whether the proposed evidence is a “record”. Where, in the opinion of the judge, the evidence is clearly a “record”, the judge should deal with the matter summarily and order the accused to proceed with a private record application. Equally, where the judge is uncertain whether the proposed evidence is a “record”, they should instruct the accused to proceed with an application. Only if the judge is clearly satisfied that the proposed evidence does not constitute a “record” should they direct that the accused need not bring an application.”
Analysis of the WhatsApp Messages at Issue in This Motion
15The documents at issue in this case are WhatsApp communications between the complainant and the Applicant. They are generally initiated by the complainant and contain responses from the Applicant.
16It is clear from the content of the messages that they communicated criticisms of the Applicant’s character and conduct, by his wife, in the context of significant marital discord.
17None of the communications contain explicit sexual content. In particular, no sexual conduct of the complainant is referred to. There are no sexual images.
18In several instances, the complainant is alleging former and current infidelity by the Applicant, her husband. She also makes complaints about his excessive attentiveness to his own family, his lack of attention to the complainant and their children, his prioritization of his family over his wife and children, his failure to spend enough time at home, and that the Applicant is a liar who hides his income from the complainant.
19Particularly in the messages in the April – May 2024 timeframe, the Applicant’s conduct is criticized using religious and Biblical references.
20It is also clear in this timeframe that the Applicant and the complainant separate, and on April 15, 2024 the Applicant refers to the fact that they are getting divorced. References are made by the complainant to the Applicant being required to pay child support and spousal support.
21In my opinion, the text messages are non-enumerated records within section 278.1 which do not attract a reasonable expectation of privacy. They do not contain communications or information from the complainant analogous to highly sensitive matters such as the complainant’s medical or psychiatric care, counselling records, personal journals or diaries. They are made by the complainant in the context of a deteriorating marriage and, in essence, are complaints about the accused’s conduct and character with little information about the complainant beyond her complaints about her husband.
22The public use of these communications in a trial could not cause “potential prejudice to the complainant’s personal dignity”. Her expressed attitude towards her husband does not reveal information striking at the complainant’s “more intimate self”.
23The complaints expressed by the complainant did not contain “information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well-being.” They are made in the context of a deteriorating marriage which resulted in the accused saying on April 15, 2024 that they are getting divorced.
24I have carefully considered whether the use of religious concepts and texts by the complainant made what are otherwise mundane attacks on the character and conduct of the accused, integral to the dignity of the complainant, as a result of their reference to religious concepts and Biblical references.
25I accept defence counsel’s submission that the mere identification of a religious affiliation is not an inherently private matter in the context of a court proceeding in which witnesses are routinely asked whether, when testifying, they wish to swear an oath on a Holy Book, and, if so, which Holy Book, or whether they wish to testify pursuant to an affirmation.
26In addition, I agree with the Crown’s fair acknowledgement during oral submissions, that in the absence of an expression of serious personal private harm, or suffering, by the complainant, of a religious nature, the mere use of religious concepts to attack the character and conduct of the accused does not render these communications “information of an intimate and highly personal nature integral to the complainant’s psychological or emotional well-being.” In my opinion, nothing in the messages from the complainant contains any serious deeply personal religious expressions of harm or suffering by the complainant such that her dignity and privacy would be harmed by their public use in a trial.
27In conclusion, as these WhatsApp messages are not enumerated or non-enumerated “records” within section 278.1 of the Criminal Code, they are not subject to the procedural scheme for the determination of their admissibility in sections 278.92 - 278.94 of the Criminal Code.
28I therefore do not need to, and do not now, determine their relevance or admissibility. Like other evidence, their relevance and admissibility will be determined on a case-by-case basis in the course of the trial in light of the evidence heard, and the issues that arise, in the trial.
Date: July 29, 2025 ______________________________ Justice David Porter