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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 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

Date: 2023 02 03 Court File No.: College Park, Toronto 20-75000850

Between:

HIS MAJESTY THE KING

— AND —

C.T.

Ruling on Motion for Directions

Before: Justice B. Jones

Heard on: January 20 and 24, 2023 Reasons for Judgment released on: February 3, 2023

Counsel: N. Golwalla and T. Schreiter, for the Crown D. Brown and J. Kirby, for C.T.

Jones J.:

Introduction

[1] C.T. is charged with one count of sexual assault. On February 16, 2020, he is alleged to have had non-consensual sexual intercourse with the complainant, Ms. S.A.

[2] At his trial, he intends to adduce photos and videos in his possession that were taken in close temporal proximity to the alleged sexual assault. These materials depict C.T., S.A., and two other individuals socializing at C.T.’s parents’ residence in a hot tub. Mr. Brown and Ms. Kirby submit that these photos and videos may be used during cross-examination to impeach the credibility of the complainant based on her anticipated trial testimony.

[3] They brought a pre-trial motion for directions seeking a ruling of the court that the materials in the possession of the defence fall outside the ambit of the protections of section 276 of the Criminal Code regarding evidence of other sexual activity of the complainant. They also sought a ruling that the materials do not constitute private records within the meaning of section 278.91.

[4] For the reasons that follow, I agree with the defence position, and conclude that the materials are exempt from the requirements of sections 276 and 278.92 - 94 of the Criminal Code.

Overview of the Allegations

[5] S.A. provided a videotaped statement to the police on February 16, 2020. In that statement, she alleged that C.T. sexually assaulted her in the early morning while they were both sleeping over at his parents’ house. She attended there the night prior for a social gathering. S.A. reported the matter to the police later that same day.

[6] It is agreed upon by the parties that the primary triable issues in this case will be the credibility and reliability of the witnesses.

Proposed Defence Evidence

[7] While they were in a hot tub, the four friends took photos and videos of themselves. The materials were provided electronically to the court. Mr. Brown and Ms. Kirby organized these materials into different folders on a USB key.

[8] Within each folder, the materials were further divided into Categories A and B. The materials contained in Category A do not depict any sexual activity. They depict the friends posing alone, in pairs, or as a group, while in the hot tub. The materials contained in Category B are remarkably similar and were also all taken in the hot tub. The photos and videos in Category B are of a slightly more intimate nature, and involve a minor degree of nudity beyond what is typically associated with persons wearing bathing suits.

Appropriate Procedure and the Participation of the Complainant

[9] I began the motion for directions on January 20, 2023, by adopting the procedure outlined by Justice Christie of the Superior Court of Justice in R. v. A.M., 2020 ONSC 1846 at para. 70. The proceeding was held in camera and a publication ban was imposed. Mr. Brown provided the material to the court in a sealed envelope that was made an exhibit. These materials were not provided to the Crown.

[10] Rather, the Crown was provided with some very basic information. The Crown was made aware that the motion was regarding photos and/or videos, that they involved the complainant, that they took place prior to the alleged sexual assault, and that they were taken in a hot tub. Importantly, the Crown confirmed, based on the disclosure materials in the case, that the complainant had already given a statement to the police mentioning the existence of a hot tub on the night of the incident and a basic narrative of the events that immediately preceded the alleged sexual assault.

[11] The parties differed about whether the complainant should have been notified of the hearing and granted standing to participate. Mr. Golwalla submitted that it is only where the court is certain that the proposed materials do not engage the privacy rights of the complainant that the matter should be allowed to proceed without her involvement. Normally, where there is even the slightest possibility that the complainant’s privacy rights might be engaged, she should be notified of the motion for directions and be granted leave of the court to intervene and make submissions. Mr. Golwalla emphasized that it is vital that the Crown, and the complainant, be given the opportunity to review the entirety of the application materials before making submissions. Furthermore, without the complainant’s input and perspective on her subjective privacy interests in the materials, the court runs the risk of making an improper decision.

[12] Mr. Brown and Ms. Kirby submitted that there is no general right for a complainant to participate in a motion for directions. Rather, in R. v. J.J., 2022 SCC 28, the Supreme Court held that motions for directions are a discretionary exercise of the court’s trial management power. Whether the complainant receives notice of the application and is granted permission to participate is an exercise of that discretion: see paras. 103-15.

[13] Their position is that there is no need to notify a complainant of a motion for directions or to provide her with a copy of the application materials. Even where an application is brought pursuant to the procedures outlined in sections 278.92 - 94 of the Criminal Code, the Applicant is only required to provide a copy of the application to the prosecutor and the court. The complainant, by contrast, has no participatory rights at a Stage 1 hearing. The Supreme Court in J.J. clarified that prior to the Stage 1 hearing, the Crown should provide merely a “general description” of the application to the complainant: see para. 92. This assists the complainant with deciding whether or not to retain counsel for a possible Stage 2 hearing. It is only where a Stage 2 hearing is ordered that the complainant has standing and the right to review the entire application record. This occurs in order to facilitate the complainant’s meaningful participation in the Stage 2 hearing.

[14] None of that reasoning applies to a motion for directions because the very purpose of the motion is to determine if the complainant’s privacy rights are engaged at all. The participation of the complainant should only be required in rare cases. After reviewing the proposed materials, if the court can clearly determine that they are not private records, then there is simply no rationale for requiring the input of the complainant.

[15] Mr. Brown and Ms. Kirby cautioned me that requiring the defence to provide its application materials on a motion for directions to the complainant as a matter of course might serve to deter defence counsel from bringing these motions at all. If the scope of a motions for directions effectively became tantamount to a formal Stage 2 hearing, the benefit of these motions, from the defence perspective, might be compromised.

[16] After reviewing the application materials and hearing from the parties, I determined that a judicial summary of their contents was sufficient for the Crown to make informed submissions on motion. The Crown did not need to review the application materials. Furthermore, I ruled that the complainant was not entitled to participate in the hearing. Following the submissions of Mr. Brown and Ms. Kirby, I adjusted the judicial summary to address their concerns with its contents and this second version was provided to the Crown.

[17] Sexual assault cases have developed a considerable degree of complexity. The amount of court time required to address pre-trial motions regarding the admissibility of evidence seems to grow each year. As a result, cases are taking longer to complete in an overburdened justice system and the risk of charges being stayed due to excessive delay has increased. This case provides a prime example. It has been over three years since the alleged assault occurred. Mr. Brown has noted that his client’s Charter 11(b) rights are very much a prime concern.

[18] Motions for directions help to streamline some of the difficult and time-consuming features of these prosecutions. When brought professionally and diligently, they can save considerable court resources. They provide the court with an opportunity to efficiently determine if an application under sections 278.92 - 94 of the Criminal Code is required at all. Their use should be encouraged, not deterred, through appropriate procedures that are focused on their core purpose.

[19] As noted by the Court of Appeal in the recent decision of R. v. King, 2022 ONCA 665, at para. 183, criminal courts in Ontario must:

[...] remain ever mindful of imposing more demands on an already overly burdened and complex criminal justice system. The criminal law is not calling for more complexity. If anything, it is calling out for simplicity and, most important, quality justice delivered with efficiency [citations omitted]

[20] I therefore disagree with the Crown that leave to intervene on a motion for directions should generally be granted to a complainant. That would routinely prolong the amount of time required to adjudicate them and cause unnecessary delay. In R. v. Jordan, 2016 SCC 27, the Supreme Court stated that an “efficient criminal justice system is… of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself”: see para. 3. The Supreme Court emphasized the importance of trial courts implementing “efficient procedures”: see para. 139.

[21] I agree with the submissions of Ms. Kirby that the rationale behind why complainants are entitled to standing at a Stage 2 hearing has no place on a motion for directions. At a Stage 2 hearing, the privacy rights of the complainant are central to the court’s analysis. By contrast, the entire purpose of a motion for directions is to determine if the complainant has a reasonable expectation of privacy in the proposed materials at all.

[22] I also concur with the reasoning of Christie J. in A.M. where her Honour made the following comments at para. 39 about this issue on a motion for directions in light of the statutory provisions regarding the admissibility of private records contained in the Criminal Code:

None of this legislation assists in determining the process to follow when there is an issue about whether the material in the hands of the accused even amounts to a record. Prior to the court making such a determination, no privacy interest is engaged. Based on the fact that the court must do some initial screening of the matter before the complainant is entitled to get involved, as set out in s. 278.93(4), there would appear to be no rational basis upon which to argue that the complainant should be involved at an even earlier stage to determine whether the material meets the definition of a record. (emphasis added)

[23] For similar reasons, I find that a court should only order, in very limited circumstances, that the defence application materials (which are otherwise sealed) be disclosed to the Crown on a motion for directions. As noted by the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326, there is a “fundamental difference in the respective roles of the prosecution and the defence.” While the Crown has a fundamental duty to disclose all relevant material in its possession, no such duty falls upon the accused. Indeed, the Supreme Court held explicitly that “the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role”: see paras. 12-13.

[24] Nevertheless, in J.J. the Supreme Court clarified that there is no general rule against defence disclosure. In fact, reciprocal disclosure has been recognized as being justified in some limited circumstances for sound policy reasons. In the sexual assault context, defence disclosure of the intended use of a complainant’s private records on a formal 278.92 application is required to ensure trial fairness and prevent the misuse of them through the “implication of myths” that would unjustifiably “encroach on the privacy and dignity of complainants”: see para. 162.

[25] It must be kept in mind though that the record screening regime that exists within sections 278.92 - 94 is tailored to Parliament’s specific purpose of protecting complainants’ “highly private records”. At the motion for directions stage, whether or not the complainant even has a privacy interest in the records must still be decided. A judicial summary of the application materials will provide the Crown with sufficient information to argue the motion while, at the same time, largely preserving the right of the defence to not unduly compromise its litigation strategy: see A.M. at paras. 54-70. If the Court is left with any uncertainty that the complainant has a privacy interest in the records, a formal application under Criminal Code sections 278.92- 94 will be required. Should a Stage 2 hearing be ordered, the applicable provisions of the Criminal Code mandate disclosure to the Crown and the complainant in order to properly adjudicate the competing interests at stake.

[26] I agree with the Crown that there may be some cases where the court will require the input of the complainant in order to make the threshold determination on a motion for directions. I adopt the test established by Justice Maxwell (as she then was) in R v. Marrello, [2020] O.J. No. 3617. The presiding judge should ask two questions:

(1) First, would the complainant’s rights to privacy, dignity and equality potentially be impacted if the orders were granted? (2) Second, if the answer to the first question is “yes”, can the complainant provide a helpful and distinct perspective to help resolve the issues?

[27] In the case at bar, the answers to both questions are “no”. This is a case where I am clearly satisfied that the proposed evidence does not constitute a private record and the complainant’s rights to privacy, dignity and equality will not be impacted: see J.J. at para. 104. As a result, there is no need for the accused to bring an application pursuant to Criminal Code sections 278.92- 94.

Appropriate Orders to Place on the Crown

[28] Ms. Kirby and Mr. Brown requested that I issue an order prohibiting the Crown from disclosing anything learned during the hearing about the proposed defence materials to the complainant prior to the commencement of the trial. They submit that the defence should not have its tactical advantage at trial potentially compromised by providing the complainant with advanced notice of the materials that they intend to use for cross-examination.

[29] In J.J., the Supreme Court noted that there are circumstances where such an order may be appropriate. At para. 94 the Court held, in the context of an application brought pursuant to sections 278.92 - 94, that “the presiding judge retains the discretion to direct that the application not be disclosed to the complainant or that portions of it be redacted. This may arise based on a party’s or the judge’s own concerns about the impact of disclosure on trial fairness.” By analogy, I could make a similar order respecting the disclosure of the contents of a motion for directions.

[30] The Supreme Court has held that a “key element of the right to make full answer and defence is the right to cross-examine the Crown’s witnesses without significant and unwarranted restraint”: see R. v. R.V., 2019 SCC 41, at para. 39; R. v. Lyttle, 2004 SCC 5, at paras. 1 and 41. However, that right is not unlimited. There are several restrictions placed on the right of defence counsel to cross-examine a complainant in a sexual-offence based prosecution.

[31] Mr. Golwalla and Mr. Schreiter submitted that in J.J., the Supreme Court rejected the defence position regarding the purported loss of a strategic benefit in surprise cross-examination. At para. 185 the Court expressly held that “it is incorrect to assume that advanced disclosure prevents effective cross-examination or impairs the search for truth.” They also warned me of the practical issues that the proposed order would create for Crown counsel. To the extent that any materials presented on the motion overlapped with disclosure materials, it would put the Crown in a dilemma when meeting with the complainant to prepare for the trial. If the assigned Crown were to discuss any features of the case with the complainant that might even tangentially touch upon what was discussed at the motion for directions, that could be viewed as a breach of the order. This would impair the Crown’s ability to have meaningful witness preparatory sessions and would compromise the rights of complainants to be informed of ongoing court proceedings relating to them and to have their views considered: see the Victim’s Bill of Rights Act, S.C. 2015, C. 13, s. 2.

[32] Ms. Kirby responded that the majority’s decision in J.J. was focused on the potential unfairness to complainants of being ambushed at trial with their “highly private records” which would be “contrary to the search for truth”. The majority’s comments must be read in their proper context. Central to the majority’s analysis was the balancing of interests that animates the private records regime. At para. 187 the majority stated the following (my emphasis added):

Providing advance notice to complainants that they may be confronted with highly private information in open court is likely to enhance their ability to participate honestly in cross-examination. Specifically, they are likely to be better equipped to respond rather than being blindsided with the use of their private records. In addition, the requirement that an application be disclosed in advance of trial ensures that sexual offence complainants are informed about the implications of participating in the trial process.

[33] The majority’s concerns are therefore not applicable where a court rules that the materials do not constitute records as defined in section 278.1 and thus do not engage the complainant’s “highly private” information. The fair trial interests of the accused must always be given paramountcy and J.J. should be narrowly construed in this regard.

[34] There is considerable merit to Ms. Kirby’s argument. Notwithstanding her very able submissions, I am not convinced that such an order is required in this case.

[35] There may be situations where the order that the defence seeks could be essential to ensuring that an accused’s right to a fair trial is not violated. For example, one can easily imagine a scenario where the materials presented on a motion for directions consist of electronic communications involving multiple persons, not limited solely to the complainant and the accused. Preventing the complainant from reviewing the communications sent by third parties would be necessary to ensure that the complainant’s anticipated testimony is not improperly influenced. Accordingly, a restriction might need to be placed on the Crown’s ability to discuss these materials with the complainant before the trial. In those circumstances, the order would be akin to the standard order excluding witnesses in a trial.

[36] Nevertheless, despite any understandable concerns raised by the defence in this case, I must respect prosecutorial discretion. In Miazga v. Kvello Estate, 2009 SCC 51, the Supreme Court held that prosecutorial discretion was of fundamental importance and advanced the public interest by “enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference”: see para. 47. In R. v. Anderson, 2014 SCC 41, the Supreme Court warned of the practical problems associated with judicial review of prosecutorial discretion, citing its previous decision in Krieger v. Law Society of Alberta, 2002 SCC 65, that unwarranted oversight “could erode the integrity of our system of prosecutorial discretion”: see para. 47.

[37] It is therefore not appropriate for me to place limits on what the assigned Assistant Crown Attorney will discuss with the complainant before the trial commences. However, I come to my conclusion that the order sought by the defence is not required in this case, in part, due to another portion of the majority’s decision in J.J. At para. 189 the majority held that “complainants can be cross-examined on their access to the private record application. The accused can impugn the credibility and reliability of the complainant by suggesting that they tailored their evidence to fit what they learned in the application.” As Ms. Kirby submitted, the majority of the Supreme Court would not have expressly permitted cross-examination of a complainant on her knowledge of what was contained in application materials unless they accepted that a complainants’ testimony could still be unduly influenced by exposure to these materials prior to the commencement of the trial. I agree.

[38] Thus, if the Crown chooses to discuss with the complainant the information revealed on this motion for directions, that may provide a basis for cross-examination at the trial. The Crown is therefore required to disclose what information, if any, is provided to the complainant about this motion pursuant to its Stinchcombe obligations. This will likely require an officer or other appropriate third party to be present during any meeting with the complainant so that a complete and accurate record of what is conveyed to the complainant, and how she responds, is created.

Analysis – Section 276 / “Other Sexual Activity”

[39] I turn now to the merits of the motion for directions. Section 276 of the Criminal Code creates exclusionary rules regarding evidence of a complainant’s sexual activity, other than the sexual activity that forms the subject matter of the offence. Such evidence is presumptively inadmissible when sought to be introduced by the defence. In particular, this evidence is not admissible to support either of the “twin myths”: (1) that the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge; or (2) that the complainant is less worthy of belief: see R. v. Barton, 2019 SCC 33 at paras. 55-60.

[40] The section is intended to protect the privacy, dignity and equality rights of complainants: see R. v. Goldfinch, 2019 SCC 38, at para. 43. Where an accused seeks to adduce evidence of a complainant’s sexual activity that is captured by section 276, they must follow the requirements in section 278.93 and 278.94.

[41] It bears repeating and emphasizing that section 276 only applies to evidence of “sexual activity.” This includes both prior consensual and non-consensual activity, with the accused or any other person. Conduct that does not constitute “sexual activity” falls outside the scope of this provision. “Sexual activity” is not defined by the Criminal Code, but is generally accepted as constituting anything done for a sexual purpose or whose content is of a sexual nature: see R. v. Santillana, 2022 ABQB 108, at para. 18.

[42] The photos and videos in Category A are not sexual in nature whatsoever. They capture C.T., S.A., and their friends in the hot tub socially interacting. The persons captured in them are intentionally posing for the cameras. There is nothing sexual occurring. While everyone is wearing a bathing suit and is thus somewhat physically exposed, that alone does not elevate the material to a form of “sexual activity.”

[43] The photos and videos are in Category B are only of a marginally more intimate nature. For the purposes of this motion, Mr. Brown and Ms. Kirby accepted that they could be characterized as sexual in nature. These materials also capture interactions in the hot tub. It is clear that the participants know that they are being recorded. There is nothing overtly sexual occurring, although the participants’ swimsuits have been adjusted or partially removed, and there is some additional, minor nudity beyond that which appears in the Category A materials. No private sexual parts of the complainant’s body are exposed in the Category B photos and videos.

[44] If the images and videos in category B could be construed as constituting “sexual activity”, I find that section 276 does not apply as any sexual activity depicted in these photos and videos forms the subject-matter of the charge: see J.J. at para. 67.

[45] As explained by the Alberta Court of Appeal in R. v. McKnight, 2022 ABCA 251, at para. 254, “[t]o fall within the scope of “sexual activity that forms the subject-matter of the charge” in section 276(2), the “sexual activity” must be part of the specific factual events of which the offence is a component.” In R. v. T.W.W., 2022 BCCA 312, the British Columbia Court of Appeal held that the sexual activity must be “temporally and factually” connected to the subject matter of the charge: see para. 54.

[46] Similarly, in R. v. X.C., 2020 ONSC 410, Dawe J. held that evidence of other sexual activity can be properly considered to form “the subject matter of the charge” if it is part of the “transaction” that is captured by the charge itself. A “transaction” should be understood to mean “a series of interconnected acts extending over a period of time” or “a series of connected occurrences”: see paras. 37-38.

[47] Several other decisions of the Superior Court in Ontario have held that in order to determine whether the proposed evidence forms part of the “subject matter of the offence”, a court should consider its proximity in place and time to the offence itself: see R. v. Lennox, 2019 ONSC 3844 at paras. 24-26; R. v. Cole, 2020 ONSC 6239, at paras. 35-43; R. v. Niemiec, 2022 ONSC 5549, at para. 14.

[48] Courts must be cautious not to engage in a strained analysis divorced from the reality of human relationships that unduly separates the proposed sexual activity evidence from the offence itself. Justice André expressed this clearly and succinctly in Cole, where his Honour held that sexual activity evidence must not be “artificially separated from the sexual assault that forms the subject of the charge”: see para. 43.

[49] The activity in the hot tub is integrally connected to the alleged assault occurring a few hours later in the evening. On the Crown’s anticipated version of events, the parties were together for several hours. They subsequently fell asleep, and the complainant later awoke to find C.T. assaulting her. Everything that occurred in the hot tub was proximate in time and place to the assault itself. All activities took place within the confines of C.T.’s parents’ residence. It was effectively a single transaction that concluded with sexual conduct. The events that occurred in the hot tub cannot be viewed as isolated, unrelated events.

Analysis – Section 278.92 / “Private Records”

[50] Sections 278.92-94 govern the admissibility of private records relating to the complainant that are in the possession of the accused in sexual offence cases. These provisions were designed to balance the rights and interests of the accused, the complainant, and the public. Protecting the dignity, equality and privacy interests of the complainant remain central to this balancing exercise: see J.J. at para. 139.

[51] To determine what qualifies as a “record” for private record applications, the starting point is section 278.1. It states:

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.

[52] As explained by the Supreme Court in J.J., this section creates both enumerated records and records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy: see paras. 38-41. A complainant has a recognized privacy interest in non-enumerated records if they contain “highly sensitive information… the disclosure of which can impact on their dignity”: see para. 45. A non-enumerated record must therefore involve subject matter of such a nature that a certain level of privacy is engaged. It is not enough that the disclosure of the information contained in the record might result in some minor, personal inconvenience to the complainant. Rather, 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”.

[53] The crucial question is whether the record contains information of an “intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being”: see J.J. at para. 71. Both the content and the context of the record must be considered. In R. v. Jarvis, 2019 SCC 10, the Supreme Court held that “[w]hether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society” (emphasis in original). Expectations of privacy are contextual and must be assessed in light of the “totality of the circumstances”: see para. 68.

[54] I conclude that the complainant did not have a reasonable expectation of privacy in these photographs and videos in light of the nature of what they depict and the context in which they were created. As the complainant did not participate in the hearing, I have come to this conclusion presuming that she would have expressed a subjective expectation of privacy in the materials. While that is an important factor to consider, it is not determinative of the question before the court.

[55] Furthermore, I note that the Supreme Court specified in J.J. that records of a sexual nature that relate to the subject matter of the charge may be construed as private “records” for the purposes of these provisions only in certain limited circumstances. Where those records are of “an explicit sexual nature” including “explicit communications, videos or photographs” they will qualify “given the dignity concerns that can arise” for a complainant: see paras. 65-67.

[56] I emphasize that if the records contained in Category B capture sexual activity, they barely qualify for such a designation. While some of the materials in Category B show a minor degree of nudity beyond what one would normally expect for persons wearing bathing suits, they do not even come close to crossing the line into the explicitly sexual. They were not created in a private setting but rather in a social gathering outside. There is no evidence on the application of a relationship of trust or authority between S.A. and any of the other participants, including C.T.

[57] Allowing their introduction into evidence at the trial would not reveal highly sensitive information about S.A. As a result, I find that the records are clearly not captured by the private records regime contained in sections 278.92-94.

[58] Having concluded that these materials are not records pursuant to s. 278.1, however, does not mean that the materials are necessarily admissible. The Crown may object on the basis that the materials are simply irrelevant, or the probative value of the evidence is substantially outweighed by its prejudicial effect. This will be determined as the trial unfolds.

[59] The defence materials filed on this motion will remain under seal. In light of my ultimate disposition on the motion, I made no decision respecting what use, if any, might have been made of the materials by the Crown at C.T.’s trial had they been released to the Crown.

Released: February 3, 2023 Signed: Justice Brock Jones