WARNING The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (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.

Court File and Parties

NEWMARKET COURT FILE NO.: CR-18-05254-00 DATE: 20200122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – X.C. Applicant/Defendant

Counsel: J. Kim, for the Crown G. Chan and Z. Al-Khatib, for the Applicant/Defendant

HEARD: December 3, 2019

DAWE J.

I. Overview

[1] X.C. is charged with a number of offences arising out of allegations made against him by his estranged wife, D.Z. These charges include a single count of sexual assault. He has pleaded not guilty to all of the charges and is scheduled to be tried by me, sitting without a jury, later this spring.

[2] For present purposes it is the sexual assault charge that is of particular importance. Ms. Z. alleges that during the course of their relationship, which lasted for approximately six months, Mr. C. repeatedly made her engage in various forms of bondage and domination-style sexual activity that included certain acts to which she says she did not consent. Based on this allegation Mr. C. has been charged with a single count of sexual assault that is particularized to essentially span the length of their relationship. The time period specified in the charge begins on January 1, 2018, which was a few days after Ms. Z. first moved to Ontario to live with Mr. C., and ends on June 20, 2018, which was the date they separated.

[3] Mr. C. is in possession of a series of “WeChat” text messages that he and Ms. Z exchanged during this time frame. He seeks direction about whether he is required to bring an application under s. 278.93 of the Criminal Code before he can adduce these text messages and/or evidence of their contents at his trial. He also seeks direction regarding the timing of any such application.

[4] As will be discussed further below, Mr. C. is statutorily required to bring a s. 278.93 application in either of two situations:

a) First, if he seeks to disclose in court the contents of a text message exchange that is “of a sexual nature”, unless the message exchange in question is one that can properly be considered to be part of “the sexual activity that forms the subject matter of the charge” (ss. 276(2) and (4));

b) Second, if he seeks to have a text message exchange “admitted in evidence” at his trial, and the messages at issue “contain personal information” about Ms. Z. over which she has a “reasonable expectation of privacy” (ss. 278.1 and 278.92).

[5] Mr. C.’s position is that he should not have to bring a s. 278.93 application in order to adduce most of the text message exchanges that are at issue here. His counsel, Mr. Chan and Mr. Al-Khatib, acknowledge that roughly half of these messages contain some sexual content, but argue that most of these latter messages should be understood as not captured by s. 276 because they are closely related to the physical sexual acts on which the sexual assault charge is based, and accordingly can be considered to be part of “the sexual activity that forms the subject matter of the charge”.

[6] They argue further that none of the text messages are “records” within the meaning of s. 278.1 and 278.93 because Mr. C. was their intended recipient, so Ms. Z. cannot reasonably have expected any privacy over their contents in relation to him, or expect him not to use the information in the text messages to make full answer and defence in response to her allegations. Finally, they submit that any s. 278.93 application they are required to bring in this case should only have to be brought as a mid-trial application after Ms. Z. has testified in chief.

[7] Crown counsel Ms. Kim – who has the disadvantage of not having seen the text messages at issue here – argues that I should interpret s. 276 broadly as applying to any text messages with sexual content, except for those in which Mr. C. and Ms. Z. are clearly discussing an incident of past sexual activity that falls within the scope of the sexual assault charge. She argues further that text messages should generally be considered “records” for the purpose of s. 278.92 and accordingly should always require pre-screening under the s. 278.93 regime. Finally, she argues that any s. 278.93 application that is brought by the defence should be heard as a pre-trial motion.

II. Factual Background

[8] As part of his application record Mr. C. has provided me with a transcript of a statement Ms. Z. made to the police on June 25, 2018. The parties have also filed an Agreed Statement of Facts that sets out a timeline of Mr. C. and Ms. Z.’s travels to and from Ontario during the time period particularized in the sexual assault charge. The following summary of the facts is based on these two documents.

A. Overview of Mr. C. and Ms. Z.’s relationship and travels

[9] Mr. C. and Ms. Z. first met on a Chinese internet marriage site in around November 2017 and began corresponding using WeChat, a popular Chinese messaging application. At the time Mr. C. was living in Newmarket, Ontario and Ms. Z. was living in Vancouver, British Columbia, where she was studying to be a makeup artist. Mr. C. went to Vancouver to visit her in December 2017, at which time they began a sexual relationship and she accepted his marriage proposal.

[10] Ms. Z. first came to Ontario to stay with Mr. C. in late December 2017, and for the next two months she divided her time between Newmarket and Vancouver. The couple were married in Newmarket on February 17, 2018. Later that month Ms. Z. went to Los Angeles, California to take a month-long makeup course. Mr. C. joined her in Los Angeles for the first few days before returning home to Newmarket. Ms. Z. then returned to Newmarket herself in late March 2018.

[11] In early April the couple went on a brief trip to Vancouver, and in mid-April they travelled together to China. Mr. C. returned to Newmarket at the end of April but Ms. Z., who was recuperating from cosmetic surgery, remained in China until mid-May. The couple then lived together in Newmarket from mid-May until June 20, 2018, when they separated. Ms. Z. made her police complaint five days later, on June 25, 2018.

B. Ms. Z.’s sexual assault allegations

[12] In her June 25, 2018 police statement Ms. Z. told the police that for the first few months of her sexual relationship with Mr. C. they had sexual intercourse “twice a day”, but that by the spring this frequency had decreased somewhat and they were having sex somewhere between daily and every two or three days. She stated that Mr. C. would “play a lot of S&M stuff on me”, explaining that this started when she first came to stay with him in Ontario and he began to blindfold her during sex. Ms. Z. told the police:

[W]hen I come to Toronto he began to push some, like, towels or eye mask on me, just make me can’t see anything. I feel uncomfortable and I say I don’t like it. I don’t want to do it because nobody did it on me before. And – but he [indiscernible] me. He said its wife’s duty to do this if his [ sic ] husband like it. And he said the sexual SM stuff in Canada is very normal. So he said I should mentally and physically be company with him. So everything he ordered I should say yes. At that time I’m feeling in love with him so I didn’t notice it will be terrible.

Ms. Z. told the police that once Mr. C. began blindfolding her during sex he would do this “like, all the time” but that “[m]aybe several times he forgot”. She later told the police: “So for the face mask I didn’t – eye mask I didn’t feel very terrible, but after then there are more things going on”.

[13] Ms. Z. alleges further that starting after their marriage in mid-February 2018 Mr. C. began to tie her up with ropes during sex. She told the police:

Every time after sex I have very badly bruise over here and on my – on – around the throat where he use the rope. And sometimes he also – my – my – on my body it had lot of bruise by him because he really grabbed me or hit me or something during sex. And I was very scared so after sex, after he released me I said I don’t want it, but he said he will become gentle next time. I believe he will become gentle. But actually he – after that he is even worse.

She later told the police that the sexual activity involving blindfolds and ropes “become more and more” over time, and that if she did not allow Mr. C. to tie her hands he would “force [her] to do it”. Ms. Z. added that after her hands and feet were tied Mr. C. would “forc[e] me to having sex with him”. However, she also indicated that at one point she agreed to let Mr. C. tie her up using a particular soft rope, stating:

At first he said he will buy some mask, eye mask, and rope, but he said the rope is very soft, like this things – like this one. I said – ’cause at that time at first I don’t agree, but I agree. But when it comes it becomes scrapes and everything, and even the ass plugs … For – for this one he didn’t use the rope – the rope after I agree – disagree, some – I think maybe he asked me just several times if I don’t agree when we have sex during the sex he will use it. But I agree with this soft one. It is … I didn’t [indiscernible].

Ms. Z. showed the interviewing officer a photo, apparently on her phone, of something that the officer describes on the interview transcript as “a black rope-type thing with four ropes attached”.

[14] Ms. Z. told the police further that during this same time frame Mr. C. also began gagging her with a towel or with his underwear during sex, which sometimes made her feel like vomiting or as if she could not breath. She explained that Mr. C. would order her to open her mouth to insert a gag and would also grab her hair, and that she complied out of fear. She explained:

Actually I’m scared of him so I opened my mouth. … Because the – he is very strong. We’re already in bed. During the time if I – I don’t know what’s going to happen to me, so I open my mouth and – but I said it’s very disgusting and I said the smell is not good and also makes my jaw very painful.

[15] Ms. Z. also told the police that Mr. C. would “sometimes [indiscernible] my face”, explaining:

[I]t is very painful actually and – and I’m very angry but he [indiscernible] and my – all of my body have bruises. But then I – I also – I don’t want to do this. I want to stop it, but he kept doing. Like he said it’s women’s duty because we got married.

Later in her statement she told the police that Mr. C. would “also very firmly grabbed me around the breast”, leaving a bruise, and that her “ass normally have a lot of bruise” as well as her ankles.

[16] Ms. Z. told the police that at some point Mr. C. bought a ball gag, nipple clips and an anal plug and began to sometimes use them on her during sex. With respect to the nipple clips, Ms. Z. told the police that Mr. C. put:

Some clips on the nipple and my nipple feel really pain. It almost falling down, so I said no. He said okay, but he didn’t take it off. And also at that time if I ask stop, he will grab my hair and drag it firmly.

With respect to the anal plugs, Ms. Z. told the police:

I didn’t know that things before and he – he bought it, but I – my eye was have mask and I was being roped. At that time I didn’t notice, so he suddenly put a very big one inside of me and I have a hard time for painful because of that, but he using his loving me and persuade I no – say yes, I like it. If I don’t say yes, he will do some other violence on me. So – but he come using bigger ones and he said I – I – I if I love him I should say yes for that.

Later in her statement she added that “when he used the ass plugs on me I lot of physically hurt things on me. My body react”. The first time he used a small anal plug and later began using larger plugs. When Ms. Z. was asked by the officer whether she had wanted Mr. C. “to do that to you” she replied:

I don’t want that he – he said you should say you like it and you should message me and – or verbally say it. You should say I like it or I don’t know what will happen. So every time when he said do you like it, I should say I like it. But actually I told a lot – a lot of this – when we – like after sex I told a lot. I said it’s hurt. It’s not like regular people do.

[17] Early in her police statement, Ms. Z. stated:

And then I seriously didn’t want to make sex because of it is super painful, it’s over eight times, and lightly painful over 20 times since this sexual SM since [sic].

Ms. Z. also told the police that throughout their relationship, from December 2017 to June 2018, Mr. C. insisted on having sexual intercourse with her when she was on her period, even though she found this painful. She also described an incident shortly after her cosmetic surgery when Mr. C. insisted on having sex with her even though she found it “really, really painful”. However, this latter incident appears to have occurred while they were in China together.

C. The sexual assault charge against Mr. C.

[18] Based on these allegations, Mr. C. stands charged with a single count of sexual assault, particularized to allege that the offence was committed between January 1 and June 20, 2018. The Crown apparently intends to take the position at trial that this single count should be understood to capture all of the sexual activity between Mr. C. and Ms. Z. in Ontario [1] during this time frame that Ms. Z. now alleges was non-consensual.

[19] However, a complicating factor is that it is not entirely clear from Ms. Z.’s police statement exactly which specific sexual activity she is alleging was non-consensual. In particular, it is unclear whether she is alleging that she did not consent to Mr. C. blindfolding her during sex, or whether her evidence will be that she did consent to this activity even though she disliked it. Moreover, while Ms. Z. appears to be taking the position that she did not consent to Mr. C. tying her up during sex most of the time, she also told the police that she did at some point agree to let him tie her up during sex using the “soft” rope device that she showed to the investigating officer in a photo. Finally, while Ms. Z. told the police that she sometimes found it painful when she and Mr. C. had intercourse while she was having her menstrual period, I do not understand her to have been alleging that this sexual activity was non-consensual for this reason alone.

[20] On my reading of her police statement Ms. Z. appears to be alleging that she did not freely consent to any the following physical acts during sex:

a) Being tied up with anything other than the soft rope;

b) Having anything inserted into her mouth as a gag;

c) Being struck by Mr. C. or having him pull her hair forcibly;

d) Having anything inserted into her anus; and

e) Having clips attached to her nipples.

She also appears to be alleging that Mr. C. only began performing these sexual acts on her after she and Mr. C. were married in February 2018. However, as noted above, it is not entirely clear from her police statement whether Ms. Z. is also alleging that Mr. C.’s use of a blindfold on her during sex – which on her account started earlier in their relationship – was also non-consensual. It is also not entirely clear when or where the specific incidents of allegedly non-consensual sexual activity she describes in her police statement occurred.

D. The text messages at issue

[21] Mr. C. is in possession of a number of WeChat messages he exchanged with Ms. Z. between January and June 2018. These messages were originally composed and transmitted mainly in the Mandarin language using Chinese characters and occasional emojis, but Mr. C.’s counsel have obtained certified English translations of their contents.

[22] Mr. C. has brought this application for directions in part because his counsel would prefer not to disclose the contents of the text message exchanges to either the Crown or the complainant before she testifies at trial. Accordingly, his counsel have not included either the original text messages or their English translations in the application materials that they served on the Crown. When this motion was heard the parties ultimately agreed that I should follow the procedure that has been adopted in cases such as R. v. M.S., 2019 ONCJ 670, R. v. W.M, 2019 ONSC 6535, and R. v. Mai, 2019 ONSC 6691, and that I should allow Mr. C. to file copies of the translated messages under seal for me to review without also providing copies to the Crown.

[23] As I will discussed further below, Mr. C.’s counsel have organized the messages into a number of groups and assigned the groups identifying letters, so that I can refer to specific message exchanges without disclosing their contents, including the date on which the messages were sent.

E. The Bill C-51 amendments

[24] Bill C-51, which came into force in December 2018, made a number of significant changes to the legal and procedural rules that apply in sexual offence trials. These amendments have been the subject of several recent judicial decisions that review them in detail and with admirable clarity. [2] As a result, I need only provide a brief summary of the amendments.

[25] Before Bill C-51, a defendant charged with a sexual offence who wanted to adduce evidence that the complainant “has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge” was required to bring an application under the procedural scheme set out in ss. 276.1 to 276.5 of the Criminal Code. These latter sections have now been repealed and replaced with the new procedural regime in ss. 278.93 to 278.97. For simplicity I will refer to an application brought under this new procedural scheme as a “s. 278.93 application”. It is not necessary for present purposes to review in detail the differences between these old and new procedural schemes.

[26] Bill C-51 also amends s. 276 by expressly providing that the term “sexual activity” in that section includes “any communication made for a sexual purpose or whose content is of a sexual nature” (s. 276(4)). Previously the case law provided “only limited and somewhat contradictory guidance” [3] as to when and in what circumstances a communication about sex would constitute “sexual activity” for the purpose of s. 276. It is now clear that a defendant must obtain prior judicial approval before adducing evidence about any such communications at trial, unless a particular communication can be characterized as part of the “sexual activity that forms the subject matter of the charge”.

[27] The second major change brought about by Bill C-51 is the addition to the Criminal Code of s. 278.92, which now requires a defendant charged with a sexual offence who has possession or control of a “record relating to a complainant … which the accused intends to adduce” to seek an admissibility ruling by bringing an application under the new s. 278.93 procedural regime before the “record” can be “admitted in evidence”.

[28] For the purposes of this new provision a “record” is specified to be anything that falls within the definition in s. 278.1, which previously only applied to material that was not in the accused’s possession or control and which the accused was seeking to have ordered produced to him or her. Section 278.1 defines to a “record” to “mean any form of record that contains personal information for which there is a reasonable expectation of privacy”, and then sets out a non-exhaustive list of specific examples of materials captured by the section. This list does not include text messages.

III. Analysis

A. Overview

[29] The net effect of the Bill C-51 amendments is that there are now two different circumstances under which Mr. C. must bring a s. 278.93 application before he adduces evidence of a text message exchange with the complainant at his trial. First, he must do so if the text message exchange was “made for a sexual purpose” or contains “content … of a sexual nature”, unless the exchange can properly be characterized as part of “the sexual activity that forms the subject-matter of the charge”. This prohibition applies to the sexual content of the text message exchanges, whether or not the defence seeks to have copies of the messages themselves put in evidence.

[30] Second, Mr. C. must also bring a s. 278.93 application in order to have a text message exchange “admitted in evidence” if the message exchange at issue constitutes a “record” within the meaning of s. 278.1. This hinges on whether it contains “personal information” about Ms. Z. over which she has a “reasonable expectation of privacy”. However, it should be noted that s. 278.93, unlike s. 276, does not appear to limit the defence’s ability to present evidence about the information contained in a non-sexual text message exchange, as long as the defence does not seek to have a copy of the messages themselves “admitted in evidence”. There is also some ambiguity over what it means to “adduce” a text message in the context of cross-examination.

[31] As noted earlier, Mr. Chan and Mr. Al-Khatib have organized the text messages at issue here into a number of different groups and assigned each group a letter. The number of individual messages in each lettered group varies, but each group consists of a series of brief messages that Mr. C. and Ms. Z. exchanged over a relatively short time period. The message exchanges in some of the different groups were sent on the same day. A few of the text messages include embedded photos, audio files and/or hyperlinks to websites.

[32] Mr. Chan and Mr. Al-Khatib have divided the text message exchange groups further into two broad categories: those with no sexual content, and those with sexual content. There are sixteen message exchanges with no sexual content, which have been labelled “A” through “P”. [4] Mr. C. will therefore only be required to bring a s. 278.93 application in relation to these messages if they fall within the s. 278.1 definition of “record”, which they will do if they contain “personal information” about Ms. Z. over which she has a “reasonable expectation of privacy”. However, in this situation the defence will only have to bring a s. 278.93 application if it seeks to have the messages themselves “admitted in evidence”.

[33] There are a further twenty message exchanges that do contain sexual content, and which accordingly constitute “sexual activity” within the meaning of s. 276. These twenty message exchanges have been labelled “Q” through “HH”. Mr. C. will be required to bring a s. 278.93 application before he adduces any evidence at trial about the content of these message exchanges, unless a particular message exchange falls outside the scope of s. 276 because it can be characterized as part of “the sexual activity that forms the subject-matter of the charge”. In this latter situation, Mr. C. would only have to bring a s. 278.93 application in relation to the message exchange if Ms. Z. also has a “reasonable expectation of privacy” in relation to its contents, and only then if the defence seeks to have the messages themselves “admitted in evidence”.

[34] It is important to emphasize that all I am being asked to decide – and all that I can properly decide at this early stage of the proceedings – is whether I am satisfied on the very limited evidentiary record now available to me that specific text message exchanges do not have to be pre-screened under the s. 278.93 procedure. As discussed further below, the status of a particular text message exchange may change once the complainant has testified in chief at trial and her allegations are brought into sharper focus. I should also emphasize that I am expressing no opinion at this stage as to whether any message exchanges that may require pre-screening under the s. 278.93 procedure will meet the criteria for admissibility under either s. 276 or 278.92.

B. Section 276 and the text message exchanges that include sexual content

[35] I will begin by considering the question whether any of the message exchanges that are acknowledged to have sexual content nevertheless fall outside the scope of s. 276. It is undisputed that these message exchanges all constitute “sexual activity” as defined in s. 276(4). However, s. 276(2) requires the defence to obtain leave to adduce evidence of the complainant’s sexual activity only if it is evidence of “sexual activity other than the sexual activity that forms the subject-matter of the charge”. Accordingly, the key question I must decide is whether any of the message exchanges in this case that have sexual content can properly be characterized as part of “the sexual activity that forms the subject matter of the charge”.

1. General principles

[36] Since the actus reus of the offence of sexual assault requires there to have been some sort of direct or indirect physical touching of the complainant by the accused, [5] the “subject-matter of the charge” in a sexual assault case cannot exclusively be a communication about sex. [6] Rather, there must always be a physical act alleged. However, a sexual communication that is very closely connected to this alleged physical act can in my view sometimes properly be characterized as also forming part of “the sexual activity that forms the subject-matter of the charge”.

[37] In this regard, it important to note that the “charge” in an indictment is somewhat different conceptually from the “offence” that is charged in a count. The Criminal Code provides that indictments shall be divided into “counts” or “charges”, [7] each of which “appl[ies] to a single transaction”. [8] A “transaction” in this context is understood to mean “a series of interconnected acts extending over a period of time” [9] or “a series of connected occurrences”. [10] Although the charge must allege that the defendant “committed an offence”, in R. v. Goldstein, supra Morden J.A. noted that it is “most important … that ‘transaction’ be distinguished from ‘offence’”. [11]

[38] In my view, “sexual activity”, in the form of both sexual acts and communications about sexual acts, can properly be considered to “form the subject matter of the charge” if it is part of the “transaction” that is captured by the charge, even if the “sexual activity” in question is not in itself an element of the charged offence. For instance, a complainant may allege that what began as a consensual sexual encounter became non-consensual when the complainant withdrew consent, or when the defendant performed some specific sexual act to which the complainant did not consent. In this situation, I do not believe the defendant is obliged to bring a s. 276 application in order to adduce evidence of the consensual sexual activity that immediately preceded or followed the activity that the complainant alleges was non-consensual. As MacLeod J. noted in R. v. Lennox, 2019 ONSC 3844, [2019] O.J. No. 3246 at para. 25, in this situation “[a]t some point parsing each moment in a sequence of events and defining it as a separate activity becomes ridiculous.” While consensual sexual acts that occur in close proximity to allegedly non-consensual acts may not be part of the “offence” in a sexual assault case, they can nevertheless form part of the transaction – the series of connected occurrences – that constitutes the “subject matter of the charge”.

[39] In my view there is no principled reason to treat communications about sexual activity – which s. 276(4) now deems to also themselves be “sexual activity” – any differently. As I see it, a communication about the physical sexual activity that is directly at issue in a sexual assault charge can properly be seen as part of the “subject matter of the charge” if it is sufficiently closely connected by time and circumstance to be considered to be part of the same transaction.

[40] The Crown and defence agree that an after-the-fact communication between Mr. C. and Ms. Z. in which they talk about a recent physical sexual interaction can properly be seen as falling outside the scope of s. 276 if the physical sexual activity they are discussing is itself part of the “sexual activity that forms the subject-matter of the charge”. However, they disagree about whether a discussion about future sexual activity should be treated in this same way. Mr. Chan and Mr. Al-Khatib submit that it should, arguing that the s. 276(2) exception should be understood as excluding all conversations about “the sexual activity that forms the subject matter of the charge”, regardless of when these conversations take place. However, Ms. Kim, disagrees, arguing that discussions about future sexual activity should be understood as always requiring scrutiny under the s. 276 regime. She argues in her factum:

It cannot be stressed enough that consent is to be provided at the time of touching. Any discussions prior to the sexual activity that forms the subject matter before the court is not relevant, and should be properly characterized as evidence of other sexual activity. In R. v. J.A., 2011 SCC 28, [2011] 2 SCR 440 at para. 46 the court stated “… the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.”

[41] While the Crown is correct that the issue of consent is determined with reference to the complainant’s state of mind at the very time the sexual act in question occurred, I do not agree that this makes a complainant’s prior communications necessarily “not relevant” at trial. Evidence does not have to be dispositive to be relevant. As Doherty J.A. noted in R. v. L.S., 2017 ONCA 685 at para. 89:

Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative.

A statement by a complainant expressing an interest in engaging in some form of sexual activity at a specified future time can be highly relevant to the issue of whether she or he then did consent at the time that the activity actually then took place, even though it will not be dispositive because the complainant could have changed his or her mind during the intervening time. Cases like J.A. where a prior statement has no bearing on the issue of contemporaneous consent because the complainant was unconscious or otherwise incapable of consenting when the sexual activity actually occurred are relatively unusual. [12] Moreover, consent as an element of the actus reus will not necessarily be the only live issue in the case. A communication discussing future sexual activity may also be relevant to the issue of mens rea, and whether the Crown can prove beyond a reasonable doubt that the accused knew that the complainant was not consenting at the time, or was reckless or wilfully blind about the complainant’s lack of consent.

[42] At the same time, I agree that a discussion about future sexual activity will only be properly treated as part of “the sexual activity that forms the subject matter of the charge” if it occurs closely proximate in time to the physical sexual activity in issue. Not every communication in which a complainant expresses a generalized interest in engaging in some form of sexual activity at some point in the future will fall outside the scope of s. 276. Indeed, interpreting the exception in s. 276(2) so broadly would potentially undermine the main purposes of the provision. I also recognize that deciding whether a particular communication about future sexual activity is sufficiently closely tied to a specific future act of physical sexual activity will necessarily be a highly fact-specific and case-dependent exercise.

[43] Unfortunately, this also makes it one that can be very difficult to make at an early stage of the proceedings, before the complainant has testified in chief. In the case at bar, in particular, there is still considerable uncertainty about exactly what sexual activity falls within the scope of the sexual assault charge against Mr. C. Unlike the situation in cases such as R. v. M.S., supra and R. v. Lennox, supra, where the accused was charged with committing a sexual assault on a well-identified single occasion, Ms. Z.’s allegations arise out of a six-month sexual relationship with Mr. C. during which she estimated that they had sex dozens if not hundreds of times, at least some of which were apparently consensual. Moreover, it not entirely clear from her police statement exactly which specific sexual acts she maintains were non-consensual, or when these acts took place. A further complication arises from the possibility that at least some of the physical sexual activity Ms. Z. and Mr. C. engaged in and/or discussed during the relevant time period and that Ms. Z. now maintains was non-consensual may still fall outside the scope of the charge because it occurred outside Ontario.

[44] As a result, even when the text message exchanges between Mr. C. and Ms. Z. appear to be discussing possible future instance of sexual activity, it is often very difficult to know whether this sexual activity ever actually occurred and, if it did, whether it falls within the scope of the sexual assault charge because it involved allegedly non-consensual acts by Mr. C. that occurred in Ontario.

[45] The defence suggests that I should resolve this uncertainty by interpreting the sexual assault charge in the indictment in the broadest possible manner. As Mr. Chan and Mr. Al-Khatib argue in their supplementary factum:

Unless and until the complainant narrows her allegations in her testimony-in-chief at trial, the Court must be guided by the broadly-drawn charge in the Indictment, as informed by the complainant’s statement in which she makes sweeping allegations of non-consensual sex.

I do not agree that I can properly take this approach, nor do I think that it would achieve any useful purpose for me to do so. If I were to find that a particular text message exchange falls outside s. 276 only by interpreting Ms. Z.’s complaints as expansively as possible, I would then have to revisit this ruling if it becomes clear once she has testified in chief at trial that her actual allegations are different and narrower. In R. v. L.S., 2017 ONCA 685 supra at para. 63, Doherty J.A. noted that “circumstances may require a trial judge to reconsider an evidentiary ruling made under s. 276(2) on her own initiative in light of evidence adduced during the trial”. In my view, this applies not only when there has been an admissibility ruling after a s. 278.93 application, but also when a court has determined that no s. 278.93 application is necessary. If this latter conclusion turns out to be wrong in light of the evidence presented at trial, so that there should have been a s. 278.93 application after all, I do not think it is open to a trial court simply to carry on as if nothing had changed. As Iacobucci J. noted in a somewhat different but related context in R. v. Litchfield, [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97 at pp. 101-04:

To permit an order to stand which is so erroneous that it results in a trial process that is fundamentally flawed would result in procedure governing substance, a result that cannot be accepted. [13]

[46] However, I also do not think it is an acceptable solution for me to require Mr. C. to bring a pre-trial s. 278.93 application in relation to text messages that could potentially turn out to fall within the scope of s. 276(2) exemption. As discussed further below, placing such an obligation on him would be extremely difficult to reconcile with the “case to meet” principle, which has been recognized by the Supreme Court of Canada to be one the “principles of fundamental justice” protected by s. 7 of the Charter and an aspect of the constitutionally-protected right to make full answer and defence. [14] Fortunately, for reasons I will discuss below, I do not think it is necessary to impose this obligation on Mr. C. in this case.

2. Status of the specific text messages in this case

a) Messages discussing past sexual activity

[47] On behalf of Mr. C., Mr. Chan and Mr. Al-Khatib submit that the text message exchanges between Mr. C. and Ms. Z. that include messages with sexual content will fall outside the scope of s. 276 in two different situations. First, they argue that s. 276 will not apply to any texts in which Mr. C. and Ms. Z. discuss past physical sexual activity that they engaged in while they were in Ontario during the time frame of the indictment, regardless of where they were when the messages were sent.

[48] I do not entirely accept this argument. The difficulty I have with it is that Ms. Z. does not appear to be alleging that all of the sexual activity she and Mr. C. engaged in between January and June 2018 was non-consensual. Rather, it seems likely that her evidence at trial will be that her sexual activity with Mr. C. only became non-consensual on some occasions when he performed certain specific physical acts to which she did not freely consent.

[49] In my view, text messages in which Mr. C. and Ms. Z. discuss a prior occasion when they engaged in physical sexual activity can only be properly characterized as part of “the sexual activity that forms the subject-matter of the charge” if Ms. Z. now maintains that what happened on this prior occasion included sexual acts to which she did not consent. This will be clear if the message exchange expressly discusses some specific physical act that Ms. Z. testifies was one to which she never consented. In addition, if Ms. Z. gives evidence at trial about non-consensual sexual activity happening on a particular occasion, it may be possible to conclude from the timing and surrounding details that a certain text message exchange must be discussing this same incident.

[50] The text message exchanges that have been labelled Q, U, EE and JJ all involve some discussion of past sexual activity. However, it is not apparent that the activity being discussed in either Q or U included any acts that Ms. Z. will testify at trial were non-consensual. The situation may change once Ms. Z. has testified in chief at trial, but based on the current evidential record I am not satisfied that these messages can be properly viewed as discussing “the sexual activity that forms the subject-matter of the charge”.

[51] However, I draw the opposite conclusion with respect to message exchange JJ and the parts of message exchange EE that discuss recent past sexual activity. I am satisfied that the prior sexual activity that is discussed in these two message exchanges does fall within the scope of the sexual assault charge in the indictment, and that these message exchanges can properly be characterized as part of “the sexual activity that forms the subject-matter of the charge”, taking them outside the scope of s. 276. However, the parts of message exchange EE that are sexual in nature but do not discuss past sexual activity must be analysed separately.

b) Messages discussing future sexual activity

[52] Mr. Chan and Mr. Al-Khatib acknowledge that three of the remaining message exchanges with sexual content – specifically, those they have labelled FF, GG and HH – can properly be characterized as instances of “sexting”, and that these message exchanges do have to be pre-screened under 278.93 before they or their contents can be adduced at trial. However, they argue that the remainder of these messages fall outside the scope of s. 276 because they all involve discussions of future sexual activity that Mr. C. and Ms. Z. were planning to engage in in Ontario during the time frame of the indictment.

[53] While I agree that in some circumstances a conversation about future sexual activity can properly form part of “the sexual activity that forms the subject-matter of the charge”, I have difficulty categorizing most of the text message exchanges at issue here in this manner, for several different reasons:

a) The content and/or timing of some message exchanges make them read more like exchanges of sexual fantasies that happen to be framed in the future tense – that is, as a form of “sexting” – than as if they were serious discussions planning a future sexual encounter that then proceeded to actually happen as discussed. The message exchanges that fall into this group potentially include W, X, Y, Z, AA, DD, parts of EE, and II. However, the situation with respect to these messages may change if Ms. Z. testifies at trial that sexual activity similar to what is discussed in the messages actually did occur closely proximate in time to when any of these messages were exchanged, and if she maintains that this sexual activity included acts to which she did not consent;

b) Some of the message exchanges discuss future sexual activity that, even if it actually did take place, may for various different reasons still not fall within the scope of the sexual assault charge. These message exchanges include Q, R, V, BB, and CC. However, the situation with respect to these messages may also change depending on the complainant’s evidence at trial, which may clarify that the sexual activity discussed did occur in Ontario and included acts that Ms. Z. now alleges were non-consensual;

c) Some of the message exchanges, while arguably implying some likelihood that Ms. Z. and Mr. C. may have engaged in certain particular types of sexual activity at some future date, lack specificity about when this activity would actually have occurred. The exchanges that fall into this group include S, T, V and parts of EE. Again, however, the situation with respect to these messages could change depending on what the complainant testifies to at trial.

[54] In summary, on the current evidential record I am only satisfied that two of the sexual text message exchanges – JJ and the portion of EE discussing past sexual activity – fall outside the scope of s. 276. However, it is entirely possible that it will emerge once the complainant has testified in chief at trial and clarified her allegations that some of the other text message exchanges also fall outside the scope of s. 276.

C. When will a complainant have a reasonable expectation of privacy over text message exchanges with the defendant?

1. General principles

[55] Section 278.1 defines a “record” for the purpose of both s. 287.2 and s. 278.92 to mean “any form of record that contains personal information for which there is a reasonable expectation of privacy”. However, people do not keep most of their personal information completely secret from the entire world, but choose to share different aspects of their personal information with different sets of people. The right to informational privacy is fundamentally a matter of controlling how, and with whom, particular personal information is shared. As Karakatsanis J. noted in R. v. Quesnelle, [2014] 2 S.C.R. 390, 2014 SCC 46 at para. 29:

A reasonable expectation of privacy is not an all or nothing concept: [[R. v. Mills, [1999] 3 S.C.R. 668, 1999 SCC 68]](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1720/index.do), at para. 108. A person may have a reasonable expectation that the state will not have access to her hotel room, even if she fully expects hotel staff to enter the premises: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30 at para. 22, discussing R. v. Dinh, 2001 ABPC 48, 42 C.R. (5th) 318. Equally, a person may divulge information to an individual or an organization with the expectation that it be used only for a specific purpose: R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 429-30.

Informational privacy rights are relational, in the sense that people may reasonably expect privacy over certain personal information in relation to some people, even when they cannot reasonably expect this same information to be private or to remain private in relation to different people.

[56] In R. v. W.M., 2019 ONSC 6535 my colleague Davies J., after reviewing a number of recent privacy cases, concluded (at paras. 40-41):

These cases all demonstrate that the determination of whether someone has a reasonable expectation of privacy is very fact specific. It is not based exclusively on a risk analysis. It is not based exclusively on who controls the information. It is a normative analysis that asks whether an independent, informed observer would think that [the complainant] ought to have an expectation of privacy over the information, given the circumstances.

There are four factors that are most relevant to my assessment in this case:

(a) the content of the messages;

(b) the manner in which the messages were sent and who has control over them;

(c) the nature of the relationship between [the accused] and [the complainant]; and

(d) the policy implications of finding she does have a reasonable expectation of privacy.

While I largely agree with this approach, I would add that the “circumstances” that must be considered include the nature of the order that is being sought. In cases where the defence seeks production of a record that it does not already have, the immediate impact of making such an order will be to disclose the contents of the record to the defendant. Accordingly, in this situation a central concern will be whether the complainant has a reasonable expectation of privacy over this information in relation to the defendant. The further impact on the complainant’s privacy interests that would result if this information were later disclosed in court may also be a significant concern, but the weight to be given to it will vary depending on the circumstances. For instance, it may emerge from the court’s own review of the record that the information it contains will inevitably emerge during the Crown’s case in chief, such that the complainant will suffer no further invasion of privacy if the “record” is also put in evidence by the defence. Equally, it may be clear that none of the information in the record will be admissible unless the defence brings a further s. 276 application, which will provide a further layer of protection for the complainant’s privacy interests in relation to third parties.

[57] The analysis will in my view be different in cases where the defence already has the record, and where the issue is whether the defence must obtain leave under s. 278.92 to have the record “admitted in evidence”. In this situation the complainant no longer has any privacy interest vis-à-vis the defendant, who has already seen the record. The main focus will accordingly be on the impact of adducing the record in court on the complainant’s privacy interests vis-à-vis third parties. The question of how the defence obtained the record, and whether the complainant freely chose to share the information in it with the defendant, may have a bearing on this question.

[58] However, it is also significant that s. 278.92 is narrower on its face than s. 276 in the sense that it only limits the defence’s ability to put the record itself into evidence, but does not place any restrictions on the defence’s ability to use or “adduce” the information in the record. In contrast, s. 276 bars the defence from leading any evidence of a complainant’s “sexual activity other than the sexual activity that forms the subject-matter of the charge”, including during cross-examination of the complainant, without obtaining an order under s. 276(2).

2. Privacy and text messages

[59] As the Supreme Court of Canada noted in R. v. Marakah, [2017] 2 S.C.R. 608, 2017 SCC 59 at para. 17, text messages can best be thought of as an “electronic conversation”. In general, a witness can give evidence about things that were said to him or her in a spoken conversation, provided that the evidence is relevant and does not run afoul of any exclusionary rule. The same is true of information conveyed to a witness in a “conversation” that happens to occur through the medium of text messaging. In the case at bar, Mr. C. will be entitled to testify at trial about things Ms. Z. said to him via text message without having his evidence judicially pre-screened, as long as his evidence does not engage s. 276 or some other exclusionary rule. His lawyers will also be entitled to use information gleaned from the text messages in their possession, or from other text messages that Mr. C. did not retain copies of but still remembers, when formulating questions to ask Ms. Z. and other witnesses. Whether or not the retained text messages qualify as “records” within the meaning of s 278.1 and s. 278.92, the latter section says nothing about how “records” in the possession of the defence can be used out of court, or how the information in such records can be used in court if the records themselves are not “admitted in evidence”.

[60] In R. v. Boyle, 2019 ONCJ 226 Doody J. interpreted the statutory scheme as implicitly limiting the ability of the defence to cross-examine the complainant about information contained in her third-party health care records that had been ordered disclosed to the defence under 278.7 without first obtaining an order under s. 278.92, noting that if this were not the case it would lead to the “absurd” result that “the statutory provision would not safeguard her privacy interest at all.” [15] While this may be a sensible approach to take when dealing with third party documents that fall within itemized list of “records” in s. 278.1 and which the accused has only obtained by invoking the Code’s production regime, it would lead to absurd consequences if it were applied to text messages that the complainant intentionally sent to the defendant. In the case at bar Mr. C. already has independent knowledge of what Ms. Z. communicated to him in her text messages, and it would in my view be nonsensical to suggest that his ability to use this knowledge is reduced merely because he happens to have also kept copies of the messages themselves, when if he had not done so and was relying entirely on his own memory of their contents s. 278.92 would plainly have no application.

[61] In my view, the fact that Ms. Z. cannot expect the relevant contents of her text messages with Mr. C. that fall outside the scope of s. 276 not to be made public in court is a significant factor when considering whether she has any reasonable expectation of privacy that would be affected if the text messages themselves were “admitted in evidence”. This factor will not necessarily be determinative. For instance, if a text message exchange contains only a small amount of relevant information that is mixed together with a larger quantity of irrelevant “personal information”, the complainant might well have a reasonable expectation that this latter information will not be exposed at trial, which could be be undermined if the unedited text messages themselves were “admitted in evidence”. However, in situations where the information communicated in a text message exchange will emerge at trial in any event, adducing the text message itself as an objective record of this communication may not cause any further impingement on the complainant’s reasonable expectations of privacy. See, e.g., R. v. Ali, 2020 ONCJ 8 at paras. 28-30.

[62] It follows from this that I do not agree with the Crown’s position that text messages should always be considered “records” within the meaning of s. 278.1 and 278.92 if the complainant expected at the time they were sent that their contents would remain private in relation to at least some people other than their intended recipient. This sweeping approach is inconsistent with the reasoning of my colleagues Davies J. in R. v. W.M., supra and Roberts J. in R. v. Mai, supra. While their decisions are not binding on me, as a matter of judicial comity I should not depart from their analysis unless there is a “cogent reason” for me to do so. See R. v. Scarlett, 2013 ONSC 562 at para. 43. I am not satisfied that there is any such cogent reason here; rather, I substantially agree with their approach. I am also not persuaded that the Crown’s proposed approach is justified as a matter of legal policy, given the limited reach of s. 278.92. It would serve no useful purpose to subject a complainant’s “electronic conversations” with the accused to the elaborate s. 278.93 judicial pre-screening process in every case, even when the information at issue will emerge at trial in any event.

3. The text message exchanges at issue

[63] In the case at bar, Ms. Z. never had any expectation that the text messages she sent to Mr. C. would remain “private” in relation to him, since he was their intended recipient. However, she might well have reasonably expected him not to share at least some of their message exchanges or the information they contained with other people, depending on their specific content and the context in which they were sent.

[64] In my view, the message exchanges with no sexual content that have been labelled C, D, G, H, I, K, L and N do not disclose any “personal information” that Ms. Z. can reasonably have expected Mr. C. to keep private from other people. Indeed, it is debateable whether these particular message exchanges contain anything that can properly be characterized as “personal information” at all. Even if they do, it was not the sort of personal information that Ms. Z. is likely to have cared particularly whether Mr. C. shared it with others, although she might have found it somewhat surprising if anyone else took any interest in it.

[65] However, to varying degrees the remaining non-sexual message exchanges – that is, those labelled A, B, E, F, J, M, O and P – all contain at least some information that Ms. Z. might have preferred, for different reasons, not to have broadly disseminated to the entire world. The sensitivity of this information varies, and I do not think it would have been reasonable for Ms. Z. to have expected Mr. C. to keep all of it strictly confidential. Indeed, I think a reasonable person in her position would have expected that Mr. C. would possibly share at least some of this information with certain of his friends and confidants, even while perhaps also expecting him not to publish it more broadly.

[66] The messages with sexual content are of a different nature. I think that a reasonable person in Ms. Z.’s situation would have expected Mr. C. to keep their sex-related text message exchanges private and not share them with anyone, particularly since they contain at least as much sensitive personal information about him as they do about her.

[67] However, the relevant question here is not what Ms. Z. would have reasonably expected from Mr. C. at the time the messages were exchanged, but what it is reasonable for her to expect now, after she went to the police and made very serious allegations of criminal wrongdoing against Mr. C. that resulted in the laying of the charges before the court. As Davies J. noted in R. v. W.M., supra 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. [The complainant] has made very serious allegations against [the accused]. They are now in an adversarial relationship. Just as it would not be reasonable for [the accused] to expect [the complainant] to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for [the complainant] to expect that [the accused] will continue to keep private, but not sexual electronic communications which might advance his defence.

These comments apply equally here. Indeed, Ms. Z. appears to have showed the police at least some of the text message exchanges with Mr. C. that she still had stored on her phone, although she also accused him of deleting other message exchanges. In these circumstances I do not think it would be reasonable for her to expect Mr. C. not to also use any relevant text message exchanges that he has retained to make full answer and defence against her allegations.

[68] The situation regarding the text messages with sexual content is somewhat different. While Ms. Z. could not expect absolute privacy over these messages once she made serious allegations of sexual misconduct against Mr. C., she was reasonably entitled to expect that any message exchanges that fall within the scope of s. 276 would be vetted by the trial court before their contents were publicly disclosed at trial.

[69] However, as discussed above, any message exchanges whose contents directly relate to “the sexual activity that forms the subject matter of the charge” are not subject to judicial pre-screening under s. 276. Ms. Z. cannot reasonably expect the case against Mr. C. to proceed without evidence of “the sexual activity that forms the subject matter of the charge” being adduced by the Crown. Indeed, she must know that she will be asked to testify about this activity herself. In my view, it would not be reasonable for her to expect defence evidence about this very same sexual activity to be excluded simply because it happens to be recorded in a text message.

[70] Applying these principles to the text messages at issue here, I would conclude as follows:

a) Message exchanges C, D, G, H, I, K, L and N contain no “personal information” over which Ms. Z. had any discernible “reasonable expectation of privacy” against anyone in any readily imaginable context. They do not need to be pre-screened under s. 278.93 in order to obtain leave under s. 278.92 to have them admitted in evidence;

b) Message exchanges A, B, E, J, M, O and P have some content that may constitute “personal information” regarding Ms. Z., but it would not be reasonable for her to expect this information to remain private at Mr. C.’s trial. They also do not need to be pre-screened under s. 278.93 in order to obtain leave under s. 278.92 to have them admitted in evidence;

c) Message exchange F contains personal information over which Ms. Z. probably has a reasonable expectation of privacy in relation to third parties. If the defence seeks to have this message exchange admitted in evidence at trial leave must be sought under s. 278.92 by bringing an application under s. 278.93;

d) Message exchange JJ and the portion of message exchange EE that discusses Ms. Z.’s past sexual activity with Mr. C. do contain personal information about Ms. Z. However, since this information directly relates to “the sexual activity that forms the subject matter of the charge”, thereby taking these messages outside the scope of s. 276, it would not be reasonable for Ms. Z. to expect either this information or the messages themselves not to be adduced in evidence at Mr. C.’s trial. Accordingly, these messages also fall outside the scope of s. 278.92 do not have to be pre-screened under s. 278.93;

e) The remaining message exchanges with sexual content will require pre-screening under s. 278.93 unless it emerges at trial that they can properly be viewed as part of “the sexual activity that forms the subject matter of the charge”, taking them outside the scope of s. 276. If so, it would not be reasonable for Ms. Z. to expect the information they contain or the messages themselves not to be adduced in evidence at Mr. C.’s trial, and they would also not have to be pre-screened under s. 278.93 to obtain an order under s. 278.92.

D. Is Mr. C. obliged to bring a s. 278.93 application before trial?

[71] Section 278.93(2) requires applications under the section to be:

… made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial.

Subsection (4) authorizes the trial judge to direct a hearing under s. 278.94 if satisfied that the application was served on the Crown and filed with the court “at least seven days previously, or any shorter interval that the judge … may allow in the interests of justice”. When a hearing under s. 278.94 is held, “the jury and the public shall be excluded”. [16] The complainant is entitled to “appear and make submissions” [17] and the judge “shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel”. [18]

[72] Judges who have interpreted these provisions to date have reached different conclusions about how often and in what circumstances a s. 278.93 application can properly be brought as a mid-trial application rather than as a pre-trial motion. In R. v. R.S. (A.), 2019 ONCJ 645, supra, Breen J. held that s. 278.93 applications can generally be brought “during cross-examination of the complainant”. He held that interpreting the legislation as requiring the application to be brought before trial would violate the “case to meet” principle and infringe the accused’s s. 7 Charter rights. In Breen J.’s view, the argument that s. 278.93 applications must be brought before trial “is not supported by the statutory language, judicial rules of practice, the test for admissibility or precedent.” [19]

[73] However, in R. v. M.S., 2019 ONCJ 670, supra Chapman J. rejected this approach on the grounds that it “would defeat the spirit and intent of the legislation and lead to significant trial management mischief.” [20] She concluded (at para. 107):

From a practical perspective, the defence strategy in this case, which contemplates a mid-trial application is not something that should be encouraged. Clearly the section contemplates a discretion in a trial judge to waive notice requirements where circumstances have changed or for some other reason the interests of justice require that they do so in exceptional cases. Further, in some cases s. 276 applications may be reconsidered at a later stage in the proceedings. However, pre-screening of any records that might reasonably fall under the s. 276 or s. 278.92 regime should ordinarily take place in advance of trial so that last-minute adjournments do not take place and Jordan timelines can be met.

[74] It is unnecessary for me to attempt to resolve this debate over how s. 278.93 applications should generally be conducted, since I am satisfied that in the particular and somewhat unusual circumstances here Mr. C. should be permitted to postpone bringing any s. 278.93 application until after Ms. Z. has testified in chief.

[75] I have reached this conclusion for two main reasons. First, even assuming, arguendo, that it does not violate s. 7 of the Charter or the “case to meet” principle to require the defence to bring a s. 276 application before trial in situations where it is clear that the evidence at issue falls within the scope of the section, the problem in the case at bar is that it is not yet clear whether s. 276 properly applies to a number of the text message exchanges at issue. Depending on what evidence the complainant gives at trial regarding which specific sexual activity she did not consent to and when this activity occurred, additional message exchanges besides those I have identified previously [21] may properly fall outside the scope of s. 276. The problem is that at this stage of the proceedings nobody, including Crown counsel, knows for sure exactly what Ms. Z.’s evidence at trial will be. In my view, it would be unfair to require Mr. C. to bring a pre-trial application that will force him to disclose his own theory of the case and his supporting evidence when it may still turn out, after the Crown has presented its own case in chief, that he was not actually statutorily required to have some or all of this evidence judicially pre-screened under s. 278.93. As Cory, Iacobucci and Bastarache JJ. noted when discussing the “case to meet” principle in their joint plurality reasons in R. v. Rose, [1998] 3 S.C.R. 262, supra, at para. 102, “[i]nherent in this aspect of the right to make full answer and defence is the requirement that the Crown act prior to the defence’s response.”

[76] Second, if Mr. C. did bring a pre-trial s. 278.93 application I do not see how I could make a ruling on this application until after Ms. Z. has testified at least in chief, since until her allegations are brought into sharper focus by her evidence at trial I do not think I will be in a position to properly assess and balance the factors in ss. 276 (2) and (3) and s. 278.92(3). As Moldaver J.A., as he then was, noted in R. v. Harris (1997), 102 O.A.C. 161 (C.A.) at para. 38 (Ont. C.A.):

Given the vagaries that all too often exist when trial judges are asked to make “advance” evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so.

If I did purport to make a pre-trial admissibility ruling, this ruling would necessarily have to be provisional and would have to be reassessed after Ms. Z. has testified in chief. At that point it would not be fair for me to revisit my ruling without hearing submissions from the parties and from Ms. Z. and her counsel, if she chooses to participate in the s. 278.93 hearing.

[77] In other words, it seems unavoidable in the circumstances here that the that the trial proceedings will have to be bifurcated in any event. In this situation it would serve no real practical purpose to insist that Mr. C. bring any s. 278.93 application before the trial begins. Requiring him to do this would not make the trial process any more efficient, and would potentially impair his ability to make full answer and defence and compromise his s. 7 Charter rights by forcing him to disclose his defence to both the Crown and the complainant before he knows the case against him.

[78] As Chapman J. discussed in R. v. M.S., 2019 ONCJ 670, supra, the prospect of conducting a s. 278.93 application mid-way through a trial does raise some practical concerns, particularly in cases that are being tried by a jury. However, in this case there will be no jury, and some of the practical problems associated with bifurcating the trial proceedings can perhaps be reduced, for instance, by the parties taking steps to notify the complainant that an application may be brought mid-trial in which she will be statutorily entitled to participate and to be represented by counsel. In any event, most of these practical problems would not be avoided by requiring Mr. C. to bring a pre-trial s. 278.93 application, since the trial would in all likelihood have to be bifurcated in any event to enable me to rule on any such application with a full appreciation of the evidence and the live issues at trial.

IV. Conclusions and directions

[79] In the result, I give the following directions:

a) The defence is not obliged to bring a s. 278.93 application in order to adduce evidence at trial based on contents of the following message exchanges and/or to have these message exchanges themselves admitted in evidence, assuming their relevance is established: message exchanges A to E, G to P, JJ and the portion of message exchange EE that refers to past sexual activity;

b) The defence will have to bring an application under s. 278.93 in order to adduce evidence of the contents of messages FF, GG, and HH at trial;

c) The defence must also bring an application under s. 278.93 in order to adduce message exchange F as evidence at trial. However, this does not preclude the defence from adducing evidence or asking questions that reflect the content of this message exchange, to the extent that it can be shown to be relevant to an issue at trial;

d) The defence may be required to bring a s. 278.93 application in order to be permitted to adduce evidence of the contents of message exchanges Q to DD, FF to II and the portion of message exchange EE that does not describe past sexual activity. However, this can only be properly determined once Ms. Z. has testified in chief at trial;

e) If the defence chooses to bring a s. 278.93 application in relation to some or all of the text message exchanges at issue, this application can be brought as a mid-trial application once Ms. Z. has completed her evidence in chief.

The Honourable Justice J. Dawe

Released: January 22, 2020

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – X.C. Ruling on application for directions The Honourable J. Dawe

Released: January 22, 2020

[1] A complicating factor in this case is for parts of the time frame particularized in the charge Mr. C. and/or Ms. Z. were in B.C., the United States or China. This court has no jurisdiction over offences committed in other provinces or other countries (see Criminal Code, ss. 6, 7 and 478(1)), and any such alleged offences must accordingly be understood as falling outside the scope of the charge in the indictment.

[2] See, e.g., Chapman J.’s decision in R. v. M.S., 2019 ONCJ 670, supra and Breen J.’s decision in R. v. R.S. (A.), 2019 ONCJ 645.

[3] D. Brown and J. Wilkin, Prosecuting and Defending Sexual Assault Cases: A Practitioner’s Handbook, at p. 271.

[4] Having reviewed these messages, I agree with Mr. Chan and Mr. Al-Khatib’s assessment that they do not contain any “content of a sexual nature” or that appears to have been sent “for a sexual purpose”. It follows that none of these communications constitute “sexual activity” within the meaning of s. 276 of the Code.

[5] See, e.g., R. v. Ewanchuk, [1999] 1 S.C.R. 330, 1999 SCC 7 at para. 25.

[6] Section 276 also applies to other sexual offences where a communication can constitute the actus reus of the offence (e.g., the s. 152 offence of “invitation to sexual touching” of a person under the age of 16).

[7] See Criminal Code, s. 2, which defines a “count” to mean “a charge in an information or indictment”.

[8] Criminal Code, s. 581(1).

[9] R. v. Goldstein (1988), 42 C.C.C. (3d) 548 at p. 554 (Ont. C.A.).

[10] R. v. Panzevecchia (1997), 102 O.A.C. 161 at para. 11 (Ont. C.A.).

[11] R. v. Goldstein, supra at p. 554 C.C.C.

[12] In J.A. the complainant was unconscious at the time of the sexual activity in issue and therefore incapable of consenting. Capacity to consent can also be vitiated by other factors, such as intoxication.

[13] R. v. Litchfield, infra at p. 111 C.C.C., addressing the jurisdiction of a trial judge to reconsider a pre-trial division and severance order.

[14] See, e.g., R. v. P.(M.B.), [1994] 1 S.C.R. 555 at pp. 577-82; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Rose, [1998] 3 S.C.R. 262.

[15] R. v. Boyle, 2019 ONCJ 226, supra at paras. 27-28.

[16] Section 278.94(1).

[17] Section 278.94(2).

[18] Section 278.94(3).

[19] R. v. R.S. (A.), 2019 ONCJ 645, supra at para. 84.

[20] R. v. M.S., 2019 ONCJ 670, supra at para. 81.

[21] That is, message exchange JJ and the portion of EE discussing prior sexual activity.