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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
This hearing is governed by section 278.95 of the Criminal Code:
Publication prohibited
- 278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
o (a) the contents of an application made under subsection 278.93;
o (b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
o (c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
o (d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
Approved for Publication: s. 278.95(1)(c) of the Criminal Code
ONTARIO COURT OF JUSTICE
CITATION: R. v. T.N., 2026 ONCJ 100
DATE: February 27, 2026
COURT FILE No.: 24-81301287
BETWEEN:
HIS MAJESTY THE KING
Respondent
— AND —
T.N.
Applicant
Before Justice C.A. Brannagan
Heard on 19 January 2026
Reasons for Ruling on Motion for Directions & Stage One Application
(pursuant to ss. 278.1/ 278.92/ 278.93)
Approved for Publication: s. 278.95(1)(c) of the Criminal Code
Mr. C. Hurley………………...…………………………………..counsel for the Applicant
Mr. J. Park…....……………………………………………….counsel for the Respondent
C.A. Brannagan J.:
I. OVERVIEW
1T.N. is a 43-year-old man. He stands charged with two counts of sexual assault and two counts of sexual interference in relation to his 12-year-old stepdaughter, T.I.
2T.N. is in possession of an electronic communication that was allegedly authored by T.I. and sent to him over the Discord app.1
3Although the Applicant submits that this communication is not a “record”, as that word is understood in s. 278.1, he brings a s. 278.92/.93 application pursuant to the dictates of R. v. J.J., 2022 SCC 28, at para. 72.
4If the Court finds that the Discord message is a “record”, the Applicant submits that it is capable of being admissible, in that it is “relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”: s. 278.92(2)(b); s. 278.93(4).
5In effect, the Applicant’s application is both a Motion for Directions and a Stage One Application.
6The hearing of this matter was held, in camera, at the Bradford Courthouse on January 19th, 2026. The court heard full submissions from counsel for the Applicant and the Crown. The Applicant’s materials were made sealed exhibit #1, and the Crown’s sealed exhibit #2.
7This is my Ruling on whether the Discord communication is a “record”, and whether, for Stage One purposes, it is capable of being admitted at trial.
II. THE APPLICANT’S APPLICATION
The Application & Allegations
8The Applicant served and filed a written application, which sets out the detailed particulars of the evidence that he seeks to adduce, and the proposed relevance of that evidence to an issue at trial, in accordance with ss. 278.93(1) and (2).
9The Applicant’s application contains a Notice of Application, an affidavit from T.N., and a screenshot of the Discord message, along with the author’s Discord profile page.
10The affidavit indicates that T.N. was married to T.I.’s mother, and that T.I. was his stepdaughter at the time of the alleged incidents. T.N. also has two daughters from a previous relationship, and prior to these charges being laid, all five resided in the same home together.
11The allegations supporting the charges are said to have occurred between June 1st and 27th, 2024, and then on September 18th, 2024. They include T.N.’s alleged touching of T.I.’s breasts, bottom, and vagina, both over and under her clothing. It is also alleged that T.N. pulled down T.I.’s pants and underwear and forced her to touch his erect penis over top of his clothing.
12T.I. reported the alleged abuse to her mother, who in turn reported the allegations to the Children’s Aid Society. On September 19th, 2024, T.I. attended at the Nottawasaga OPP detachment, where she provided an audio/video statement to police.
13The Applicant was informed of the charges that same date, and he turned himself in for arrest and processing. He was subsequently released on bail with a condition that he not have contact with T.I.
The Discord Message
14Eight months later, on May 31st, 2025, T.N. claims to have received a message via the Discord app from a sender whom he believed to be T.I. The display name for the sender of the message was not T.I.’s name, but the Applicant nevertheless believed that it was sent by his stepdaughter.
15The message is sealed as part of exhibit #1, but I will describe its content in general terms here for reference. While the message would remain subject to the evidentiary rules of authentication, for the purposes of this Ruling I will assume that T.I. is the author.
16T.I. addresses the Applicant by his first name, indicating that she knows she should not be contacting him. She expresses her apology to T.N. “for what I did”. She expresses her longing to reunite with T.N. and his daughters. She asks T.N. not to tell anyone about the message, stating she does not want to get into trouble. She expresses her love and longing for T.N. She promises not to tell anyone should T.N. reply to the message.
17There is nothing in the context of a sexual nature in the message.
18The affidavit indicates that after he received the message, T.N. took a screenshot of it on his device to ensure its retention. When he later returned to look at the chat in the Discord app, he found that the message had been deleted.
19The Discord profile page for the author of the message indicates that they had been a member since June 26th, 2024. It sets out an internet/social media handle and an associated first name only (that is not T.I.’s first name). The profile indicates that it is “in stealth mode”, which indicates that the user does not have any activity to share.
The Applicant’s Argument
20The Applicant submits that the only issue is whether the message is a “record”.
21The Applicant submits that this communication is not a “record” for the purpose of s. 278.92, as understood in s. 278.1. But if found to be a record, then it is capable of being admissible as it “does not engage in forbidden twin-myth reasoning [and] the message is relevant to the complainant’s credibility with respect to the allegations”: Applicant’s Notice of Application, at para. 6.
22Parenthetically, though not argued by the Applicant, I note that the myths and stereotypes that the record screening regime seeks to eradicate extend beyond the traditional “twin myths” referred to by Counsel. One such fallacious assumption that could arise on the facts of this case, for example, would be to claim that a ‘real victim’ would avoid all contact with the perpetrator after the fact: J.J., supra, at para. 132; R. v. Kruk, 2024 SCC 7, at para. 41.
23Mr. Hurley clarified in his oral submissions that the message’s purported relevance as to T.I.’s credibility is that she is apologizing for what she did, one of the available inferences being that she made a false report to the police. That is the extent of the purported evidentiary purpose for which admissibility is sought in this case.
24The Applicant urges the Court to find that the message does not attract a reasonable expectation of privacy, as its contents express only a vague emotional reference about T.I.’s feelings for T.N.
25To qualify as a “non-enumerated record”, which this item would be if found to be a “record” at all, would require content that is intimate or highly personal with implications for the complainant’s dignity. This message fails to breach that threshold, says T.N.
26Speaking to the context, the Applicant likens the Discord message to a “normal text message” – T.N. is the intended recipient, and T.I. would have known that T.N. might show others the message, which diminishes the reasonableness of any expectation of privacy that she might have had in the message.
27The Applicant claims that T.I.’s specific request not to tell anyone about the message should be interpreted to mean that she knew the message had less privacy attaching to it, because she had to request that it not be shared or shown to anyone else. This further reduces any claim to a reasonable expectation of privacy.
28Mr. Hurley cited the decision of R. v. O.J., 2022 ONSC 7302, for the proposition that for an electronic communication to attract a reasonable expectation of privacy, its content must include information that goes to the complainant’s biographical core or lifestyle. The messages in that case were found not to be “records”.
29He also cited to R. v. J.D., 2022 ONCJ 544, in support of his contention that ordinary text messages were not “records”, relying on the fact that because T.I. (allegedly) sent T.N. this message, she should have known that he would keep and could share it, thus depriving it of any reasonable expectation of privacy.
III. THE RESPONDENT CROWN’S RESPONSE
30Mr. Park for the Respondent Crown submits that the Discord message is a “record” within the meaning of the 278.1/278.92 regime. He contends that any medium containing personal information may qualify as a record, and that what is most important is the content, not the technological form of communication.
31The Crown emphasizes that the reasonable expectation of privacy is held by the sender of the communication – in this case, the alleged victim, T.I., the supposed author of the Discord message.
32The Crown relies on the Supreme Court of Canada’s instruction in J.J., supra, at paragraphs 54-60, which directs trial courts to examine the content and the context of the message to determine whether it meets the legal definition of a “non-enumerated record”.
33Mr. Park submits that the Discord message reveals “expressions of affection and endearment” from T.I. to T.N. – an expression of intimacy. That the author of the message requests the message not be shared emphasizes a clear assertion of privacy.
34The Crown cited the decisions of R. v. G.E., 2020 ONCJ 451, R. v. T.A., 2020 ONSC 2613, and R. v. K.D., 2022 ONSC 6105, for the proposition that where a complainant and a defendant’s interests diverge, privacy is not lost simply because of a change in relationship; what matters is the context and the content at the time of the communication.
35Mr. Park stresses that the age of the sender in this case is a relevant factor in assessing the context – a very young person, and the victim of T.N.’s alleged sexual offending, expressly asked that her message not be shared. From a societal perspective, the Crown argues, it would be unacceptable to conclude that anyone similarly situated would have given up their reasonable expectation of privacy in the message.
36The Respondent pointed the court to paragraphs 40 and 41 of the T.A. judgment, which was a Ruling on Motion for Directions under s. 278.1. In those paragraphs, Justice Gomery (as she then was) said the following before concluding that the complainant had a reasonable expectation of privacy in the communications:
40In [the chat communications], the Complainant expressed warm feelings for the Defendant, referred to him using endearments and nicknames, described him in a complementary way and said she was grateful for their relationship. These chats provide insight into the Complainant’s feelings for and her relationship with the Defendant, her personal tastes and preferences, and her interactions with him. This is, in my view, personal information.
41The nature of the messages, the means by which they were sent, and the circumstances in which the information was shared with the Defendant, all weigh in favour of a finding that the Complainant has a reasonable expectation of privacy in the chats. They were conducted over a private platform. There is no evidence that the Complainant expected anyone else to see these messages, that she shared them with anyone else or that she expected the Defendant to disclose them to anyone else.
37The Crown also relies on the decision of Justice Doody in G.E., where His Honour determined the messages to be “records” where they contained “expressions of endearment between the defendant and the complainant. Those expressions of endearment include each saying that they love the other, and other statements of affection”: at para. 38.
38His Honour went on to find, at paragraph 50:
In my view, the individual text messages containing those expressions of endearment, when considered together with all the other circumstances of the messages – individual communications between persons in an intimate relationship – are “records” relating to the complainant. I repeat C. Fried’s description in “Privacy” (1967-68), 77 Yale L.J. 475 at pp. 477-78, cited at para. 81 of Mills:
To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, as oxygen is for combustion.
39Finally, the Crown invokes the underlying rationale in J.J. that privacy in communications protects physical, psychological, and emotional well-being. According to the Respondent, this rationale squarely supports maintaining the young complainant’s reasonable expectation of privacy in the circumstances of this Discord message.
IV. THE LEGAL FRAMEWORK
Records in Possession of the Defendant, ss. 278.92, 278.93, s. 278.1
40In 2018, Parliament passed Bill C-51, which introduced ss. 278.92 to 278.94 into the Criminal Code. These sections were legislated to try and remove from the criminal trial process those aspects of it that had become unnecessarily invasive, humiliating, and degrading for victims of sexual offences, particularly where their private records were in the hands of the accused: J.J., supra, at paras. 1-9.
Section 278.92 – Records in Possession of the Defendant
41Where any of the statutorily prescribed offences are being prosecuted, and the defendant has in their possession or control a “record” relating to the complainant, it shall not be admitted in evidence in any proceedings except in accordance with s. 278.92, and unless the court determines its admissibility in accordance with the procedures established by sections 278.93 and 278.94: s. 278.92(1) & (2).
42In cases of evidence that is not “other sexual activity” evidence (see s. 276(2)), the evidence in possession of the defendant can only be admitted where it “is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”: s. 278.92(2)(b).
43The admissibility of such evidence is considered in account of the factors set out in s. 278.92(3)(a) through (i).
Section 278.93 – Stage One Hearing
44Pursuant to s. 278.92(2), the defendant must apply for a threshold admissibility hearing under s. 278.93. The application must be made in writing, setting out the detailed particulars of the evidence that the defendant seeks to adduce and its relevance to an issue at trial. A copy of the application must be given to the Crown and to the court: ss. 278.93(1) and (2).
45Where the court is satisfied that the application was made in accordance with subsection (2), and that the evidence sought to be adduced “is capable of being admissible”, the court shall grant the Stage One application and hold a Stage Two admissibility hearing under s. 278.94: s. 278.93(4).
Section 278.1 – Definition of “Records”
46Section 278.1 confirms its application to proceedings made under s. 278.92:
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.
47The records set out in the above passage constitute “enumerated records” and are those which are prima facie likely to contain personal information for which there is a reasonable expectation of privacy: J.J., supra, at paras. 38-39.
48The enumerated list of records is not exhaustive; it is illustrative only. There also exists a category of records that do not fall within the class of enumerated records, but which nevertheless fall within the scope of the record screening regime, where such items contain personal information about complainants for which they have a reasonable expectation of privacy. These are “non-enumerated records”: J.J., supra, at paras. 40-41.
49A “non-enumerated record” will be captured by s. 278.1, under the record screening regime, where it contains “information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being” which “will have implications for the complainant’s dignity”: J.J., supra, at para. 42.
“Reasonable Expectation of Privacy” and Charter Section 8 Jurisprudence
50The phrase “personal information for which there is a reasonable expectation of privacy” 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’” and is ‘based on the notion of the dignity and integrity of the individual’”: J.J., supra, at paras. 43-44; R. v. Jarvis, 2019 SCC 10, at paras. 55-56.
51The Court in J.J. confirmed that Charter s. 8 jurisprudence informs the interpretation of what a “reasonable expectation of privacy” can mean but clarified that it was specific in application to the record screening regime. The person claiming the privacy right must have a subjective expectation of privacy that is objectively reasonable in the circumstances: J.J., supra, at paras. 46-47; Jarvis, supra, at paras. 35-43 & 57-58.
52The Court rejected a content-neutral approach, as exists in the Charter s. 8 case law, noting the “more important consideration is the sensitivity of the information contained in the record”: J.J., supra, at para. 49.
53Some relevant principles distilled from the s. 8 jurisprudence that assist in interpreting the meaning of “reasonable expectation of privacy” in the context of the records screening regime include:
i. Privacy is at the heart of liberty in a modern state, and “it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society”. These privacy concerns are at their strongest where aspects of one’s individual identity are at stake, such as in the context of information “about one’s lifestyle, intimate relations or political or religious opinions”: R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at paras. 79-80.
ii. Determining whether a person can reasonably expect privacy in a particular situation requires a contextual assessment that takes into account the totality of the circumstances: Jarvis, supra, at para. 60; R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45;
iii. Privacy is not an “all-or-nothing” concept. Just because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy: Jarvis, supra, at para. 61; Mills, supra, at para. 108; R. v. Quesnelle, 2014 SCC 46, at paras. 28-29 & 37-43.
iv. The evolution of new technologies and consideration of their capabilities must be assessed in determining whether a reasonable expectation of privacy was breached by its use. While such technologies may make it easier for individuals to collect, store and disseminate information about us, this does not necessarily mean that our reasonable expectation of privacy will correspondingly shrink: Jarvis, supra, at para. 64; R. v. Tessling, 2004 SCC 67, at para. 16.
v. A “reasonable expectation of privacy” is a normative standard, not a factual or descriptive one. The Supreme Court of Canada has rejected the idea that privacy depends on whether a person knowingly put themselves at risk of intrusion. Instead, the question is what society considers a reasonable expectation of privacy, not whether there was a chance their privacy might be invaded. Treating the standard as a simple risk assessment would make it meaningless and undermine Parliament’s intention to protect privacy where it is engaged. These protections must be applied proactively at the admission stage, not after the privacy breach has already occurred: Jarvis, supra, at para. 68; J.J., supra, at para. 142.
Discerning the “Non-enumerated Record”
54In defining whether a record contains “personal information for which there is a reasonable expectation of privacy”, the Supreme Court of Canada has directed trial courts to consider the content and the context of the item at issue: J.J., supra, at para. 54.
55When considering content, if the information in a non-enumerated record is similar to what would be contained in an enumerated record, this is a useful indicator that it raises similar privacy interests and should be subject to the record screening regime. The common thread present through the enumerated records “is that they contain information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being”: J.J., supra, at para. 55.
56When considering context, the court must apply a normative and common-sense approach. A communication or document that contains personal information for which there is a reasonable expectation of privacy “must reflect societal understandings about the fundamental right to be free from unwanted intrusion into our personal lives”. These expectations of privacy are highly contextual and must be assessed in light of the “totality of the circumstances”: J.J., supra, at para. 57; Edwards, supra, at para. 45.
57The Court, at paragraphs 57-60 of J.J., found that three non-exhaustive contextual factors may be relevant to the analysis:
i. why the complainant shared the private information in question;
ii. the relationship between the complainant and the person with whom the information was shared, including whether it was a relationship of trust or authority. While a relationship of trust is not necessary, it may be sufficient; and
iii. where the record was shared and how it was created or obtained. Records produced in the private domain (i.e., one-on-one communications between the complainant and the accused) may attract an enhanced reasonable expectation of privacy.
58The age of the complainant may also play an important contextual factor. As the Supreme Court of Canada in Jarvis, supra, has stated:
86[T]he values that underlie privacy ‘apply equally if not more strongly in the case of young persons’ [citations omitted]. That Canadian law provides children with greater privacy rights than similarly situated adults in a number of contexts evidences a societal consensus on this point, and on the shared value of protecting children’s privacy.
87[…] adults recognize that children and young persons are often not in a position to protect their own privacy interests against intrusion. […] Children are also expected to be obedient to adults and follow their instructions, and they place a high degree of trust in adults and authority figures, such as their parents and teachers.
59The kinds of serious emotional and psychological harm that sexual violence against children can cause is well recognized and “may often be more pervasive and permanent in its effect than any physical harm”. A child’s vulnerability can be exploited by adults given the power imbalance at play. For these reasons, the equal protection and guarantee of children’s interests in autonomy, dignity, physical, psychological and emotional integrity, particularly in reforming the scheme of sexual offences against children, has been accepted as a laudable policy goal: R. v. Friesen, 2020 SCC 9, at paras. 54, 56, 65, & 77.
60The societal interest in protecting vulnerable children, including in the context of assessing “reasonable expectations of privacy” with electronic media in a s. 8 context involving child sexual offences, also finds recent support with the Court of Appeal for Ontario: see R. v. Knelsen, 2024 ONCA 501, at para. 45; R. v. P.M., 2025 ONCA 208, at paras. 25, & 34-37.
61Additionally, the definition of “record” in s. 278.1 enumerates various records that are characteristically associated with children, including education, child welfare, adoption and social services records. The emphasis on records concerning children is a useful indicator that Parliament has recognized the heightened privacy interests of children.
V. APPLICATION OF THE LAW TO THE FACTS
The Applicant’s Arguments
62The central question is whether the Discord message is a “record” within the meaning of s. 278.1. The Applicant urges the court to find that it is not.
63The Applicant relied upon two decisions in support of this submission: R. v. O.J., 2022 ONSC 7302, and R. v. J.D., 2022 ONCJ 544. I find that neither case advances his arguments on the facts of this case.
64On the facts in O.J., the court found that the messages were not “records” because their content dealt with “brief and isolated expressions of frustration in relation to the ask for money to buy property” and, without more, did “not rise to the level that contains the complainant’s thoughts, aspirations, feelings, friendships, social interactions and the details of daily activities that are regarded as important features of the complainant’s biographical core nor does this information negatively impact on her dignity”: at para. 24.
65In J.D., the court found that some items were “records”, while others were not. In assessing the factual context, the court observed that the messages were exchanged privately between the complainant and the applicant, but that fact in and of itself was not sufficient to engage a high enough level of a reasonable expectation of privacy and was not determinative. The court also found that the relationship between the parties was not one of trust, authority or privilege. Finally, the court found that the complainant was aware that she was sharing information with the applicant and she was aware that those messages could be kept: at para. 75.
66To the extent that one sends an electronic communication to another, knowing that it could be kept, those sent messages may still attract protection under s. 8 of the Charter. Whether a reasonable expectation of privacy is present in any given case is a factual finding to be made by the trial judge: R. v. Marakah, 2017 SCC 59, at paras. 4-5.
67And of course, the Supreme Court of Canada has in no uncertain terms ruled that privacy is not an all-or-nothing concept. An acknowledgement that one’s privacy may be diminished to some extent does not mean that all reasonable expectations of privacy are waived: Jarvis, supra, at para. 61; Mills, supra, at para. 108; Quesnelle, supra, at paras. 28-29 & 37-43; Tessling, supra, at para. 16.
The Content and Context of the Discord Message
68T.N. was stepfather to T.I., the victim of his alleged sexual offending. He was in his early-40’s at the time that these offences were allegedly committed, and his stepdaughter was just 12 years of age (13 at the time that the message was sent). They lived together, along with T.I.’s mother (T.N.’s then-wife), and T.N.’s two daughters from a previous relationship. That T.N. was in a position of authority and trust as a father figure to T.I. is apparent.
69The content of the Discord message is a clear expression of affection and endearment towards T.N. The message provides insight into T.I.’s feelings for and relationship with T.N., her personal preferences, including her wish to reunite the family. This is precisely the kind of personal information that one would reasonably expect to see in a private communication. She also explicitly asks T.N. not to share the message with anyone.
70From a normative and common-sense perspective, the context of the Discord message is such that a reasonable expectation of privacy attaches to it. The “totality of the circumstances” is that a 13-year-old girl sent a private electronic communication to her stepfather, her alleged assailant. She messaged him to express that she missed him and his two daughters. This is in the context of a stepfather-stepdaughter relationship of trust. The electronic communication was produced and shared in the private domain. The sender’s account was in “stealth mode”, a functional privacy setting, which limited access.
71Moreover, after having received the message, when the Applicant returned later to review it, it had disappeared – the inference being that the author had deleted it herself. This fact further enhances T.I.’s subjective expectation of privacy in the sent message.
72I have no difficulty concluding that the totality of the circumstances in this case is such that the author had a subjective expectation of privacy in the Discord message that is objectively reasonable in all of the circumstances. I find that the electronic communication is a “non-enumerated record”.
The Stage One Threshold
73The Applicant submits that the message is relevant to T.I.’s credibility, in that she apologized for what she did; one of the available inferences is that she was apologizing to the Applicant for making a false report to the police.
74Having reviewed the message, I agree that Counsel’s interpretation is one of the available interpretations to be inferred from the message. To that extent, it has potential significant probative value.
75The court shall grant Stage One and convene a Stage Two admissibility hearing where the application complies with s. 278.93(2), and that evidence is capable of being admissible: s. 278.93(4).
76I find that the threshold admissibility test at Stage One is met.
VI. DISPOSITION
77The Applicant’s application is allowed, in part, as follows:
i. The Discord message is a “record” within the meaning of s. 278.1; and,
ii. The court is satisfied that the Discord message is capable of being admissible for Stage One purposes. The Applicant may therefore proceed to the Stage Two admissibility hearing.
Released: 27 February 2026
Signed: Justice C.A. Brannagan