Court File and Parties

COURT FILE NO.: 18-RA-19531 DATE: March 13, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Plaintiff – and – T. A. Defendant

COUNSEL: Anthony Does for the Plaintiff Brett McGarry for the Defendant Jo-Ann Meloche for the Complainant

HEARD: February 18, 2020

THIS DECISION IS SUBJECT TO A PUBLICATION BAN ORDERED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. ANY INFORMATION THAT COULD IDENTIFY THE VICTIM SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY.

RULING ON MOTION FOR DIRECTIONS UNDER SECTION 278.1 of the CRIMINAL CODE

S. GOMERY, J.

[1] In this motion for directions under s. 278.1 of the Criminal Code, I must decide whether a young woman has a reasonable expectation of privacy with respect to screenshots of electronic messages she sent to her former boyfriend, months or weeks before he allegedly assaulted her.

Overview

[2] T.A. (the “Defendant”) is accused of sexual assault and sexual assault with a weapon of a young woman, V.R. (the “Complainant”). He will be tried on these charges, with a jury, in May 2020.

[3] The Complainant alleges that, on November 20, 2016, after they had gone to see a movie and returned to the Defendant’s family home to watch videos, he forced her to have violent, non-consensual intercourse with him. She also says that, on an unspecified day between September 5, 2015 and June 30, 2016, the Defendant demanded that she kiss him while holding a knife to her throat.

[4] The Complainant and the Defendant dated in late 2013 and early 2014, when he was in grade 11 and she was in grade 9. At the Defendant’s preliminary inquiry, the Complainant testified that they continued to see each other from time to time in 2015 and 2016, after their relationship ended. She said that they were friendly, but that she tried to distance herself from him or cut off contact with him more than once, because he wished to resume their romantic relationship, while she did not.

[5] The Defendant has three sets of messages he exchanged with the Complainant on Facebook in 2015 and 2016. In these messages, the Complainant chatted with the Defendant, discussed arrangements to see him, and said positive things about him and about their relationship. After making the criminal complaint, the Complainant provided some texts she exchanged with the Defendant to the Crown, but not these ones.

[6] Under s. 278.92(1) of the Criminal Code, adopted in 2018 and in force since September 2019, certain records in the hands of a person accused of sexual assault are now presumptively inadmissible. Such records include any record falling within the definition of a “record” under s. 278.1 of the Code, that is, a record containing personal information in respect of which the complainant has a reasonable expectation of privacy.

[7] In this motion, the Defendant seeks a ruling as to whether the three sets of messages exchanged with the Complainant on Facebook are presumptively inadmissible records under s. 278.1 of the Code. If the messages do not meet the definition of “records” in that section, the Defendant has no obligation to disclose them before his trial. His lawyer could confront the Complainant with them during cross-examination and potentially argue that her testimony is inconsistent with their content. If I conclude that the messages contain personal information in respect of which the Complainant has a reasonable expectation of privacy, the Defendant could still seek to adduce them into evidence. He would however have to apply for leave to do so and convince the court that their probative value outweighs the potential prejudice that could be caused by their introduction. In doing so, he would have to disclose the messages to the Crown and to the complainant, as required under the application procedure dictated by s. 278.93.

[8] For the reasons that follow, I conclude that the Complainant has a reasonable expectation of privacy in two of the three sets of messages. They accordingly meet the definition of records under s. 278.1 and are presumptively inadmissible.

ANALYSIS

1. The records at issue

[9] When she made her criminal complaint in late 2016, the Complainant provided the police with some electronic messages that she exchanged with the Defendant. According to her Crown counsel, she made screenshots of these messages, which she considered relevant to her allegations of sexual assault. It is unclear whether she still has a copy of other messages she exchanged with the Defendant, including the ones at issue in this motion.

[10] The messages at issue were exchanged between the Defendant and the Complainant on Facebook, using its Messenger chat function. Nobody else participated in these chats. There is no evidence that they were forwarded to or otherwise shared with other people.

[11] For oral reasons delivered on February 18, 2020, for the purpose of this motion I adopted the procedure developed in R. v. W.M., 2019 ONSC 6535 and followed in R. v. Mai, 2019 ONSC 6691. Defence counsel provided me with a copy of the messages under seal. He provided Crown counsel with a summary of their contents and the circumstances in which they were sent. This same summary was provided to counsel for the Complainant, who was given leave to participate in the motion. All three lawyers presented argument on the principles in determining the definition of records under s. 278.1.

[12] The three sets of messages are as follows:

Item 1: A chat between the Complainant and the Defendant in Fall 2016 confirming plans to meet at a shopping centre.

Item 2: A chat over several days in Fall 2016, in which the Complainant expressed her feelings for the Defendant, and they exchanged short messages and emojis.

Item 3: A 250-word message from the Complainant wishing the Defendant happy birthday and expressing positive feelings towards him and their relationship in September 2015, and his response.

2. Applicable legal principles

[13] Section 278.92(1) states that “no record relating to a complainant that is in the possession or control of the accused – and which the accused intends to adduce – shall be admitted into evidence in any proceedings” in respect of certain offences, including sexual assault (s. 271) or sexual assault with a weapon (s. 272). If an accused wants to introduce any such record into evidence, they must persuade a judge that it meets the test for admissibility in s. 278.92(2), on an application under s. 278.93. In determining admissibility, the court must take into consideration a long list of factors set out at s. 278.92(3), including society’s interests in upholding fundamental protections for the accused and its interest in encouraging the reporting of sexual assault.

[14] What constitutes a record for the purpose of these sections is set out in s. 278.1:

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. [Emphasis added.]

[15] Two recent decisions by the Ontario Superior Court, W.M. and Mai, have considered the scope of s. 278.1 following the introduction of the new provisions enhancing the protection given to complainants’ privacy rights. A third case, R. v. M.S., 2019 ONCJ 670, came before the Ontario Court of Justice. The judges in all three instances comprehensively reviewed the caselaw on privacy, explored the purpose of the new provisions, and addressed the need to balance privacy and equality interests with fundamental safeguards for the accused. These decisions are particularly relevant to my consideration of the records at issue here, since they also dealt with messages between the accused and the complainant.

[16] Any category of record may be subject to s. 278.1, if the court is satisfied that it relates to the complainant and contains personal information for which she has a reasonable expectation of privacy. Although the recent amendments to the Code modified the language of s. 278.1 slightly, for the reasons provided by Chapman J. in R. v. M.S., at paras. 33 to 35, I conclude that this did not have the effect of limiting its ambit to the categories of documents specifically listed.

[17] In considering whether the complainant has a reasonable expectation of privacy for the purposes of s. 278.1, the totality of the circumstances must be considered; R. v. Edwards, [1996] 1 S.C.R. 128, at paras. 31 and 45. Davies J. however held in W.M. that four factors were most relevant in the context of assessing Facebook messages sent by the complainant to the accused:

(a) The content of the messages; (b) The manner in which they were sent and who has control of them; (c) The nature of the relationship between the accused and the complainant; and (d) The policy implications of finding that the complainant has a reasonable expectation of privacy over the messages.

[18] In Mai, Roberts J. expanded on the approach taken in W.M. In her view, the nature of the information should be the preliminary focus because the purpose of the new legislation is to protect the privacy and equality rights of the complainant, and because “the nature of the information will in many, if not most cases be determinative of the threshold question”; Mai, at para. 20. For example, if the record contains information that falls within the definition of “sexual activity” in s. 276(4), or if it is one of the types of records specifically listed in s. 278.1 (such as a medical record), then the procedure set out in ss. 278.93 and 278.94 is engaged. It is only if there is doubt about whether a record meets the definition in s. 278.1 that a judge must consider the context is which it was created.

[19] Assuming that content was not determinative of the threshold issue, Roberts J. held that a court should assess the complainant’s reasonable expectation of privacy by considering the relationship between the parties, the manner that the record was sent or distributed, and the scope of the dissemination; Mai, at para. 22.

[20] Although the judges in these two cases differed somewhat in their analytic approach to s. 278.1, they agreed that the analysis must consider both the nature of the information contained in the record and the context in which it was created.

[21] In assessing whether a complainant has a reasonable expectation of privacy with respect to a record, a judge should therefore weigh the type and nature of the information it contains, the circumstances in which the record was created, how the accused acquired the record and whether the complainant shared it with other people.

[22] I respectfully decline to adopt, however, the conclusions reached in W.M. and Mai with respect to two factors: the adversarial relationship between the accused and the complainant that results from the making of the complaint, and the policy implications of a finding that a complainant has a privacy interest over the records.

The relevance of the relationship between the complainant and the accused

[23] The judges in W.M. and Mai both considered that the relationship between the parties when the record was shared with the accused, as well as their current relationship, were relevant. In my view, only the relationship at the time the information was shared with the accused is relevant.

[24] In her discussion of the complainant’s expectation of privacy for the purpose of s. 278.1, the judge noted that it is phrased in the present tense. She concluded that the current relationship between the accused and the complainant is a relevant factor, writing at para. 50:

Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now. Ms. M.-A. has made very serious allegations against W.M. They are now in an adversarial relationship. Just as it would not be reasonable for W.M. to expect Ms. M.-A. to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for Ms. M. A. to expect that W.M. will continue to keep private, but not sexual, electronic communications which might advance his defence.

[25] In Mai, the judge also took the current relationship into account by arguing that a complainant must have contemplated the risk that the accused, after receiving personal information, might someday use it against her interests:

I believe the fact that a complainant chose to share the information found in the record with the accused is a relevant circumstance. In doing so, the complainant can usually be reasonably expected to contemplate a risk that the accused would seek to use that information to defend himself against a subsequent allegation by the complainant. While the nature of that expectation will depend on the particular circumstances, I believe that it does bear on a complainant’s expectation of privacy in the record. (Mai, at para. 25)

[26] By contrast, I conclude that no weight should be placed on the relationship a complainant has with the accused as a result of the criminal complaint, in assessing her privacy expectation with respect to records under s. 278.1.

[27] There are three reasons for this. First, this adversarial relationship is the foundation for s. 278.1, and as such should not be an argument to restrict its scope. Second, someone disclosing private information to another person could not reasonably be expected to contemplate the possibility of an assault by that person and its legal consequences. Third, giving weight to the current relationship undermines the purpose of s. 278.1.

[28] The recognition of the competing interests between the complainant and the accused is the very reason why Parliament has enacted new protections for privacy interests in s. 278.92 and other provisions. Section 278.1 presupposes a prosecution. Absent the pitting of the accused’s right to a fair trial on criminal charges against the complainant’s privacy interests, the court would have no basis to limit the accused’s use of a complainant’s personal information. Since these competing interests are the premise of the analysis to be undertaken under s. 278.1, there is a circularity in using it as an argument for limiting the complainant’s reasonable expectation of privacy. In doing so, the court is second-guessing the raison d’être of the new legislation.

[29] Second, a focus on the current relationship projects an unreasonable retrospective set of expectations on the complainant. Section 278.1 should not be read in such a way that lowers a woman’s privacy rights because of a theory that she should have anticipated that she might be sexually assaulted and have to testify in a criminal prosecution against someone she once chose to confide in. This line of thinking has the troubling implication that a complainant is somehow responsible for a potentially harrowing experience in the context of a sexual assault trial, based on her past poor choices about entrusting personal information. Beyond this, no one should be held to have “reasonably” expected that they might be the victim of a violent, illegal act.

[30] Finally, emphasizing the current adversarial relationship between the complainant and the accused fundamentally undermines the purpose of s. 278.1. When a victim of sexual assault makes a criminal complaint, she necessarily sacrifices some expectation of privacy – she must, at a minimum, disclose sexual activity with another person. The goal of the new legislative protection is to ensure that the complainant’s dignity and privacy rights are not compromised more than is strictly necessary, while safeguarding the presumption of innocence and the accused’s right against self-incrimination. The first step is the characterization of records that the accused wants to use, under s. 278.1. If the scope of this provision is read too narrowly, by focusing unduly on the competing nature of the accused’s substantive and procedural rights and the complainant’s privacy interests, the court will never get to the second stage of the analysis under s. 278.93, when it can weigh the broader interests at stake set out in s. 278.92(3).

[31] It is the relationship at the time the complainant shared information with the accused that is clearly relevant to the assessment of the complainant’s reasonable expectation of privacy. If the two were strangers at the time, this would undermine the argument the information was highly personal or that the complainant understood that she could trust the accused to keep the information to himself. If, on the other hand, the complainant and the accused had a close relationship, the court could infer that they might confide highly personal information to each other, expecting that it would be kept confidential.

The relevance of policy implications

[32] My reason for rejecting policy implications in assessing the reasonable expectation of privacy is again based on the need to ensure that the new privacy safeguards for complainants are not undermined through too narrow a reading of s. 278.1.

[33] As already noted, if a record is found to fall within the definition in s. 278.1, the accused may seek to adduce into evidence by applying under s. 278.93. In considering whether the record should be admitted, the court must take into account a long list of factors set out at s. 278.92(3), which 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 considers relevant.

[34] By requiring consideration of the factors listed at s. 278.92(3), the legislator requires courts to consider specific broad policy implications of permitting the defence to use the complainant’s private records.

[35] In my view, the policy analysis mandated under 278.92(3) argues against undertaking a policy analysis at the stage of considering the scope of the definition of records under s. 278.1. Parliament has effectively directed courts to consider specific policy implications only when the court is determining whether records containing a complainant’s personal information ought to be admitted. Conducting a policy analysis at an earlier stage runs contrary to the structure of this scheme and threatens to undermine it. In considering policy implications for the purpose of determining whether a record meets the definition in s. 278.1, because no criteria for doing so are set out in the provision, a court might be tempted to consider only some of the implications listed in s. 278.92(3). The selective consideration of some policy implications, but not others, could lead to an unduly narrow definition of records in which the complainant has a reasonable expectation of privacy.

Conclusions on applicable legal principles

[36] Following the principles explored at length in W.M., Mai and M.S., subject to the reservations addressed above, I will proceed as follows:

(1) First, I must determine whether the records are subject to s. 276. If they contain information relating to a sexual activity, they are presumptively inadmissible under that section, and may not be relied on by the accused absent a successful application under s. 278.93. (2) If they are not subject to s. 276 and are not one of the categories of records specifically listed in s. 278.1, I must determine whether the records contain any personal information relating to the complainant. If not, they do not meet the definition of records under that section, and the analysis can end there. (3) If the records contain personal information, I must determine whether the complainant has a reasonable expectation of privacy in them, taking into account factors such as:

• The content of the records;
• The means by which the accused acquired them, and the circumstances in which this happened;
• Whether the records were shared only with the accused or were also disclosed to others; and
• The nature of the relationship between the accused and the complainant when the records were shared. (4) If I find that the records contain personal information in respect of which the complainant has a reasonable expectation of privacy, I must find that they meet the definition of records under s. 278.1 and are presumptively inadmissible.

3. Application of legal principles

[37] I find that none of the messages were made for a sexual purpose and their content is not of a sexual nature. They are accordingly not subject to the evidentiary rules set out in s. 276.

[38] I find that the first item, the chat confirming plans to meet in Fall 2016, does not contain personal information. There is nothing in the language or content of this set of messages that provides a reader with any insight into the Complainant’s feelings, personal characteristics, private interactions or relationships. The subject matter of the chat is completely mundane. As a result, the chat falls outside the ambit of s. 278.1.

[39] The second and third items contain personal information. As held by the Supreme Court of Canada in R. v. Mills, [1999] 3 S.C.R., at p. 722, quoting from its earlier decision in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425, 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’”. As found in M.S., at para. 72, messages bearing on “the parties’ thoughts, aspirations, feelings, friendships, social interactions and the details of their daily activities” are inherently personal.

[40] In items 2 and 3, the Complainant expressed warm feelings for the Defendant, referred to him using endearments and nicknames, described him in a complimentary 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.

[41] The nature of the messages, the means by which they 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.

[42] The relationship between the Complainant and the Defendant when the messages were exchanged also argues for a reasonable expectation of privacy. They had been romantically involved for several months, ending in Spring 2014. After they stopped dating, they stayed in touch. The contents of the messages suggest that they were on friendly terms.

[43] I accordingly conclude that the Complainant has a reasonable expectation of privacy with respect to the chats in items 2 and 3. Items 2 and 3 are therefore records for the purpose of s. 278.1 and inadmissible under s. 278.92, unless the Defendant applies successfully to have them admitted into evidence using the procedure set out at s. 278.93.

Justice Sally Gomery Released: March 13, 2020