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:

Publication Prohibited

278.9(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.

☒ An order has been made under s. 278.9(1)(c) allowing these reasons to be published, broadcast or transmitted.

PUBLICATION BAN

Pursuant to section 486.4 of the Criminal Code it is ordered that there be no publication by any means of the identity of the complainant or any information that could identify the complainant.

Court Information

Date: January 7, 2020

Court File No.: 18-15009417

Ontario Court of Justice (Toronto Region)

Parties

Between:

ADAM OUMER ALI Applicant

– And –

HER MAJESTY THE QUEEN Respondent

Hearing and Judgment

Heard: 6 January 2020

Judgment: 7 January 2020

Court File No: 18-15009417

31 paragraphs

Counsel

Counsel for Applicant: Lenard Kotylo

Counsel for Respondent: Sean Husband

Decision

Libman J. -

Application for Directions on Third Party Disclosure

[1] This is an application brought in advance of trial for directions in respect of whether certain materials in the possession of the accused that relate to the complainant trigger the application of the new third party disclosure regime pursuant to s.278.92 of the Criminal Code.

[2] The matter arises in the following manner. The applicant is charged with committing a sexual assault on A.P. on 14 December 2018. The trial was set for two days, commencing today. However, due to disclosure issues that arose at a late date, the parties appeared before me last week and agreed to vacate the trial dates, and to instead use the allocated time to argue this application before me.

Facts

[3] I have been advised by way of agreed statement of fact, and submissions of counsel, for the purposes of the application, that the parties had been in a dating relationship for approximately one week before the alleged incident. On the evening in question they met at a bar and consumed alcohol together. The parties took a picture (a "selfie") together outside the bar on the applicant's cell phone. The time was approximately 12:48 a.m. on 14 December 2018. This picture is the first of the two items that is the subject of the application before me.

[4] Thereafter they agreed to go to the applicant's home. Before doing so, they stopped at a drug store. This occurred at about 1 a.m. The complainant bought make-up remover; the applicant purchased condoms. The complainant advised the applicant, however, that she did not wish to have sex with him. When the parties subsequently got into bed together, the complainant objected to being touched sexually and got up to leave. When she did so and was in the process of leaving, the applicant made a four second cell phone video of her exiting his premises. It appears that the complainant was not aware that she was being recorded at the time. There is no audio component to the video. According to its time stamp, this occurred at 1:47 a.m. It is this cell phone video recording that is further the subject of this application.

Legal Framework

[5] In order to fall within the ambit of s.278.92(1) the photograph and video recording must not only be in the possession or control of the accused and relate to the complainant, they must also meet the definition of "record" within s.278.1.

[6] Section 278.1 in turn requires any such record to contain personal information for which there is a reasonable expectation of privacy. The non-exhaustive list of examples which are enumerated under this provision include documents such as medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records. Personal journals and diaries are also included.

[7] It has been held that the definition of "record" in s.278.1 is not overly broad and applies only to documents that truly raise a legally recognized privacy interest: R v Mills, [1999] 3 S.C.R. 668.

[8] Put another way, it is only records in which the complainant has a reasonable expectation of privacy that fall within the legislative regime set out by s.278.1. Accordingly, while the court is entitled to assume that a reasonable expectation of privacy attaches to any of the records identified and enumerated under s.278.1, this is not necessarily the case for records which are not so specified: see R v Clifford, 58 O.R. (3d) 257.

Analysis of the Photograph

[9] What then of the materials that are the subject of this application.

[10] First, the photograph of the complainant and applicant together when they met at a bar approximately one hour before the alleged incident. Both parties are in agreement that the photograph does not come within the definition of "record" under s.278.1, in which case, the disclosure protocol in s.278.92 is not triggered.

[11] I accept this concession. It is clear that the parties consented to the photograph being taken and were both aware that it was being taken at the time. Neither was there any expectation that it would not be shared with persons other than the complainant and the applicant.

[12] Awareness of or consent to potential observation or recording, and the manner in which the observation or recording was done, are among the relevant considerations in determining whether a reasonable expectation of privacy obtains: R v Jarvis, 2019 SCC 10.

[13] I note further that quite apart from the proffering into evidence of the subject photograph, it would be open to the complainant or applicant, or anyone else present, to testify as to the circumstances surrounding the taking of the photograph, given that it was done in a public setting.

Analysis of the Video Recording

[14] The more contentious item involves the cell phone video recording of the complainant leaving the applicant's premises following the alleged sexual assault. It is here that the parties part company.

[15] Crown counsel is of the view that video recording constitutes a record within the meaning of s.278.1. He notes that the video recording, unlike the photograph, was taken without the complainant's consent. Moreover, it was taken in a private residence, during a time proximate to the alleged sexual assault. As such, these are circumstances in which she would reasonably expect not to be shared with the outside world. Indeed, audio and video recordings constitute a greater intrusion into the private realm than do mere observations.

[16] The defence, on the other hand, counters that there can be no objectively reasonable expectation of privacy in a brief video recording made by the applicant showing the complainant merely leaving his premises. The parties are in agreement that the complainant did in fact depart at this time, and the applicant was simply recording and preserving the fact of her doing so. Further, he notes, both parties would be permitted without evidentiary prohibition to give evidence to this effect, namely, that the complainant left the applicant's premises at 1:47 a.m., regardless of the existence of the video recording depicting same.

Applicable Case Law on Video Recordings

[17] While audio and video recordings are not expressly enumerated as records under s.278.1, it is clear that such items can attract both a reasonable expectation of privacy and contain personal information as to its subject. Indeed, it was such a surreptitious video recording of female students that was found to give rise to a reasonable expectation of privacy for the purposes of the s.162 Criminal Code voyeurism provision in Jarvis.

[18] While the videos in Jarvis focussed for the most part on the faces, upper bodies and breasts of the female students, the part of the person's body that is being recorded and the activity in which the person is engaged, are merely some of the relevant considerations in determining whether there is an invasion of privacy. Other factors include the location where the recording or observations take place, the manner in which it was done, whether the party was aware or consented to the recording, the relationship between the parties, the purpose for which it was done, and the personal attributes of the person being recorded: see Jarvis, para. 29.

[19] While Jarvis was not a case involving the application of s.278.1, in the one year period in which Bill C-51 was proclaimed into law, on 18 December 2018, a number of decisions under ss.278.1 and 278.92 have in fact considered whether audio and video recordings do comprise a reasonable expectation of privacy and for which personal information of the complainant is implicated. In the interests of trial economy, I refer to the particularly helpful and insightful discussion of these new provisions by my colleagues Breen J in R v A.R.S., 2019 ONCJ 645 and Chapman J in R v M.S., 2019 ONCJ 670.

[20] Audio and video recordings have been expressly found to constitute records within the meaning of s.278.1 despite the absence of any discussion of sexual activity or where they are not sexual in nature. The question to be asked is whether the recordings contain personal information related to the complainant for which he/she has a reasonable expectation of privacy: see R v H.A.R., 2019 ONSC 7145 at para. 28.

[21] Recordings which are potentially sexual in nature, and others that may not be quite as sexual, may nevertheless be intimate in nature and attract the application of s.278.1 as they are presumptively private records: R v M.S., paras. 59-60.

[22] Indeed, in R v F.I., 2019 ONSC 6120, a video recording where the complainant was seen performing a sexual act on one of the co-accused in the back of a car was found to constitute an affront to her personal dignity and cause "serious prejudice" to her privacy right (para. 39). The evidence attracted the application of s.278.92 and was excluded by the court.

[23] But not every communication between the parties that is recorded may contain the requisite personal information that is required for the application of s.278.1. For example, where the communications simply concern "making arrangements" between the complainant and the accused to meet on a particular date and time, they do not contain "personal information" so as to engage the s.278.92 regime: see R v Mai, 2019 ONSC 6691 at para. 21.

Court's Conclusion

[24] Returning then to the totality of the circumstances surrounding the making of the cell phone video recording of the complainant departing the applicant's premises following the alleged incident that forms the subject matter of this prosecution, I am of the respectful opinion that it does not constitute a record within the meaning of s.278.1. As such, the third party records disclosure regime under s.278.92 is not engaged.

[25] I reach this conclusion for a number of reasons. To begin, accepting that the complainant has at least a residual privacy interest in a recording made of her, without her knowledge or consent, taken at a location where the public is not ordinarily present, namely, the applicant's home, I fail to apprehend how such a recording in the circumstances of this case contains the requisite personal information as mandated under s.278.1.

[26] The parties, it will be recalled, are in agreement, that the complainant exited the applicant's premises at the time in question, as evidenced by the time stamp of the video recording. The recording does nothing more than confirm this fact. The video recording itself lasts mere seconds; it is not sustained and contains no audio component.

[27] Such a recording, it seems to me, may be considered to resemble the parties making arrangements to get together at a particular time, as stated in Mai. In this case, however, it represents the parties agreeing on the time and manner in which the complainant leaves the location where they formerly agreed to attend. In other words, it is the fact of one of the parties leaving a premises, and the circumstances of doing so, that the cell phone video recording merely captures.

[28] In the absence of the video recording, counsel agree that the parties would not be barred from testifying as to the exact particulars captured by it. That is, that the complainant left the applicant's home at the time that she did, and that she did so on her own volition. While there is no accompanying audio component, it would be equally be open to the parties to relate into evidence anything that was said by them to each other at the time of the video recording.

[29] Stated differently, there is nothing captured by the applicant's brief cell phone recording that either party would not otherwise be permitted to describe in their testimony. No additional personal information is revealed, in other words, merely by the fact of video recording, that the parties could not already state. Each party may describe, for example, the physical appearance and demeanor of the complainant at the material time, provided such evidence is relevant and admissible, regardless of the format in which the evidence may be put before the court or is preserved. The video recording, though made without the complainant's knowledge or permission, merely substantiates the fact of the complainant extricating herself from the applicant's premises and the circumstances in which she does so.

[30] I am unable to accept then, that evidence of the complainant leaving the applicant's home, that either party is entitled to adduce orally, without anything more, could be prohibited simply due to the medium or format in which it is brought before the court. The manner in which this evidence is tendered does not add to, or lessen, in my view, any accompanying personal information about the complainant. Regardless of how the evidence is proffered, it is descriptive merely of the complainant's actions; it is not informative or revealing of her.

Order

[31] For these reasons, I have concluded that at the trial proper, the two items which form the subject of this application, the cell phone photograph of the complainant and applicant taken at the bar together, and the cell phone recording of the complainant leaving the applicant's premises, may be tendered as of right into evidence should the parties so choose.

Released: 7 January 2020

Justice Rick Libman