R. v. Gallan, 2024 ONSC 5338

Court File and Parties

COURT FILE NO.: CR-22-842 (Stratford) DATE: 20240926 AMENDED: 20241010

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – James Scott Gallan Accused

Counsel: Megan Cleland, for the Crown Cassandra DeMelo, for the Accused Neha Chugh, for the Complainant

HEARD: September 5, 2024 by Zoom

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, R.S.C., 1985, c. C-46, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted, or transmitted in any manner.

AMENDED DECISION: Paragraph 52 of the original ruling dated September 26, 2024, has been deleted and replaced with “ Having received submissions with respect to the Complainant’s right to privacy, and taking that interest into account along with the interests of justice, I order pursuant to s. 278.95(1) (d)(ii) of the Code that these reasons may be published, broadcasted, or transmitted.” No other changes have been made to the decision. This copy replaces all other copies.

Defence Application Pursuant to s. 278.93 of the Criminal Code, R.S.C., 1985, c. C-46 as am.

j. r. macfarlane j.

Introduction

1James Scott Gallan (the “accused” or “Mr. Gallan”) is charged on a single-count indictment that on or about the 20th day of May 2021, at the Municipality of North Perth, in the County of Perth, in the Southwest Region, he did commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”). I will refer to the complainant as such due to the publication ban in place. Mr. Gallan has plead not guilty.

2The trial began before me without a jury on March 25, 2024. The complainant has completed her testimony in-chief. During the cross-examination of the complainant, counsel for Mr. Gallan attempted to put certain materials to the witness, to which the Crown objected. The materials were videos and text messages that had been obtained by the Ontario Provincial Police (“OPP”) from the complainant’s phone and subsequently disclosed to the defence. The complainant had consented to the OPP obtaining the information from her phone by a consent in writing dated November 25, 2021 (the “Consent”), which says, inter alia, “I understand that by giving this consent, any information that is obtained may be used in criminal proceedings against me or other persons.”

3The basis for the Crown’s objection was that, despite the Consent signed by the complainant, some of the information constituted “records” as defined in s. 278.1 and used in s. 278.92 of the Code. In the Crown’s submission, an application should have been brought before trial with respect to the records to determine their admissibility. This issue had been raised at the judicial pre-trial held before Cook J. on April 25, 2023, and was reflected in the report to trial judge. No application had been brought by Mr. Gallan before trial, or indeed before the cross-examination of the complainant had begun.

4Counsel for Mr. Gallan took the position that no application was required because of the Consent signed by the complainant, which counsel characterized as a waiver of any privacy interest protected by s. 278.92 of the Code. After hearing submissions about the need for an application on March 26, 2024, I ruled that an application was necessary, and that application was brought and heard before me on September 5, 2024. The trial is scheduled to continue October 9, 2024.

5These reasons will address my decision to require an application by Mr. Gallan notwithstanding the Consent signed by the complainant, as well as my ruling on the admissibility of records of certain information sought to be relied upon by the defence. The Crown has conceded that certain information does not engage the complainant’s personal dignity and privacy interests; those documents do not constitute a “record” as defined in s. 278.1 of the Code and are therefore not subject to the screening regime in s. 278 of the Code (the “Non-Records”). It is important to note that the Crown’s concession that a document in question is not a “record” does not mean that the document will be admissible at trial: admissibility must still be determined in accordance with the ordinary rules of evidence relating to relevance and probative value. As stated in R. v. B. (A.R.) (1998), 41 O.R. (3d) 361 (C.A.), at para. 13, “… the general rule is that one cannot impugn a witness's credibility by contradicting the witness on matters which are collateral even in a case where the ‘core’ issue is credibility.”

6Counsel for the accused has helpfully identified certain redactions, both before and after the hearing of the application, in respect of which a ruling is not required because it will not be relied upon or entered into evidence.

7The parties referred to Appendix A to the affidavit of Tayzia Collesso that was filed on the application (“Document Appendix”). The Document Appendix comprises 131 pages, with page numbers in the bottom right-hand corner of each page, except for the index pages, separating each date and document type. In these reasons, I will refer to these page numbers in the Document Appendix and, where necessary, to the date and time stamp of individual text messages.

8I note that at the hearing of this application, the complainant was represented by counsel who echoed the position of the Crown in all respects.

Issue No. 1 – The Need for an Application

9Because the need for an application was discussed at the judicial pretrial conference almost a year before the trial and because the time for the application had been included in the estimated time needed for the pre-trial applications (there were others heard and dismissed by Nicholson J. as case management judge on February 13, 2024), I found that the delay in the trial occasioned by the late application was defence delay. I accept that it was inadvertence on the part of defence counsel that led to the delay, but it is nonetheless something that was not caused by the Crown or any lack of judicial resources.

10Counsel for the accused relies primarily upon the decision of R. v. Martiuk, 2022 ONSC 5577, [2022] O.J. No. 4415. In that case, Goldstein J. ruled that records in a sexual assault case provided to the Crown or police and disclosed to the defence are not subject to the regime set out in ss. 278.92 to 278.94 of the Code.

11In Martiuk, Goldstein J. followed two earlier decisions of our court, namely R. v. McFarlane, 2020 ONSC 5194, [2020] O.J. No. 3639, and R. v. J.K., 2021 ONSC 7604, [2021] O.J. No. 6546, both of which were decided before the important decision of the Supreme Court of Canada in R. v. J.J., 2022 SCC 28, [2022] S.C.J. No. 28. The Supreme Court of Canada decision in J.J. came out after Martiuk had been argued but was considered briefly by Goldstein J. after further submissions by counsel. Goldstein J. distinguished J.J., at para. 34 of Martiuk, saying simply that:

J.J. dealt largely with the constitutionality of the amendments to the Criminal Code that created the defence disclosure regime. The legislation filled a gap in the legislation. It had a specific purpose. The basic point in this case was not in issue in J.J. There was no analysis of whether Crown disclosure was caught by the defence disclosure regime. J.J. does not alter my conclusion.

12Respectfully, I do not agree with my brother Goldstein J.’s conclusion. I find that Martiuk, as well as McFarlane and J.K., do not conform with the Supreme Court of Canada’s ruling in J.J. Again, with great respect, I am of the view that McFarlane and J.K. were effectively overruled by the Supreme Court of Canada’s decision in J.J., and that the impact of J.J. was not fully considered in Martiuk. I am satisfied that at least one, if not two, of the criteria for deciding not to follow the horizontal stare decisis rule as laid down in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), as approved in R. v. Sullivan, 2022 SCC 19, [2022] S.C.J. No. 19, at paras. 73-79, are satisfied. Those criteria are:

• The rationale of an earlier decision has been undermined by subsequent appellate decisions;
• The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or
• The earlier decision was not fully considered, e.g. taken in exigent circumstances.

13I am satisfied that the analysis of J.J. undertaken in Martiuk was so perfunctory that the decision can be said to have been reached per incuriam or, in the alternative, was not fully considered. I note that it appears from the trial decision in Martiuk (reported at 2023 ONSC 414), [2023] O.J. No. 210) that the trial commenced on October 17, 2022, which was just over two weeks after the decision of Goldstein J. had been rendered. In those circumstances, a fulsome consideration of the watershed Supreme Court of Canada decision in J.J. was not possible.

14I agree with and adopt the following reasoning of Calderwood J. of the Ontario Court of Justice in the unreported decision of R. v. C.R. (14 December 2022), Niagara, 211-998-21-S0633-00 (Ont. C.J.), at paras. 45-57:

45It is my view that the decision in Martiuk is wrongly decided for the following reasons.

46The Court in Martiuk anchors its reasoning in s. 278.2(2). That section reads as follows:

Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.

47On a plain reading, this provision makes clear that the Crown cannot produce "records" to an accused without an explicit waiver of the sections specifically bearing upon production. The section does not, however, say that there must also be a waiver of the complainant's rights in terms of admissibility before the Crown produces "records" to an accused. Parliament could have, but did not, include a reference to the admissibility provisions here. Accordingly, on my read, the provision allows the Crown to disclose "records" on the basis of.an express waiver by a complainant of their production-related rights, without more. To find that disclosure by the Crown must also mean that the complainant has waived their admissibility-related rights is problematic having regard to the wording of the provision itself.

48On this point, it is significant that the factors, and privacy interests, to be considered for production and admissibility are not identical. Indeed, courts have held that even where production is ordered of a third-party record, this does not determine the question of admissibility. A further admissibility screening process is required before any of the contents of the "records" produced can be adduced into evidence.

49As the majority held in the recent Supreme Court of Canada decision in R. v. J.J. [at para. 50]:

As this Court has made clear, the privacy interests in a record being produced to the accused are different from privacy interests at play when the accused seeks to have the record admitted as evidence in court.

50Simply put, a complainant's agreement that the police, the lawyers and the accused may access their private information for purposes of investigation or case assessment is substantially different from an agreement by a complainant that the same private information be publicly aired in a courtroom during the course of criminal proceedings, potentially while the complainant is being questioned in the witness box.

51The Court's decision in Martiuk, and the decisions it follows, fail to pay heed to the important distinction between these rights and the fact that s. 278.2(2), on its face, limits the "waiver'' in question to production-related rights and interests. These decisions treat the question of waiver as an all-or-nothing concept despite the notable differences in the rights engaged and the varying impacts on privacy as between production and admissibility. In my view, they err in doing so.

52I also disagree with the Martiuk line of cases because those decisions stand at odds with the legislative intent behind the admissibility screening regimes and recent Supreme Court of Canada jurisprudence emphasizing the importance of respect for complainant rights. Combined, these regimes and Supreme Court of Canada authority do not support an expansive or liberal interpretation of s. 278.2(2). The approach taken in Martiuk, when put into practice, may have the very real effect of depriving a complainant of their rights under the admissibility regime in circumstances where it is not clear that they intended to waive those particular rights, including the important right to be heard and be represented by counsel before permission is granted for intensely private records to be publicly aired in a criminal proceeding.

53A further problem with the Martiuk approach is that it fails to follow the Supreme Court of Canada's direction in R. v. Barton that the ultimate responsibility for ensuring the rights of complainants are protected in sexual offence cases falls to trial judges They are the final gatekeepers. Not the Crown. The Crown has no authority to waive complainant rights. The Crown is not counsel for the complainant. The Crown cannot concede, and dispense with, an admissibility application: And, experience has shown that the Crown may, at times, err in its decisions or conduct in relation to matters that touch upon the privacy and dignity rights of complainants. The facts of the Barton case itself illustrate how the Crown can fall short in this regard. Those facts bring home the importance of the role of the judiciary in this process.

54In the face of the direction in R. v. Barton, I am troubled by the approach Martiuk because it rests on a presumption that the Crown has fulfilled its duly and obtained an express waiver of complainant rights. It effectively transfers the trial judge's responsibility as ultimate gatekeeper of the integrity of the process to the Crown and removes a significant safeguard in the process.

55The requirements for an express waiver are high; It cannot be provided by someone who lacks a full understanding of the specific rights as provided under the legislation. Further, complainants are entitled to independent legal advice before providing an express waiver and ought to be informed of that right. Simply handing material over to police, without a full appreciation of these rights. or an understanding of the extent of the dissemination or potential use of the material, does not amount to an express waiver in law.

56In my view, inferring that an express waiver as to both production and admissibility has been obtained simply because the Crown has made disclosure of the evidence turns the scheme on its head. To respect the spirit of these provisions, the reverse should be true. There should be positive proof of an express waiver, including that the complainant was informed of the specific rights in question and offered the opportunity to consult counsel, before a judge proceeds on the basis that the rights in question have been waived by a complainant Nothing less, in my view, satisfies the important gatekeeper function of the court.

57For these reasons, I decline to follow the Court's decision in Martiuk.

[Citations omitted, emphasis in original].

15Although there was a document signed by the complainant in this case, the Consent itself falls far short of being an express waiver of the specific protections of the Code pertaining to the admissibility of records as defined in s. 278.1, which are presumptively inadmissible under s. 278.92(2) insofar as they relate to the complainant. Neither the word “waive” nor any derivation thereof appears in the Consent, and the statement at para. 9 of the Consent that “I understand that by giving this consent, any information that is obtained may be used in criminal proceedings against me or other persons” does not specifically refer to a waiver of admissibility with respect to information obtained by the OPP or to the specific protections afforded to complainants under the Code. The Consent is insufficient to displace the important gatekeeping function of this court.

16For these reasons, I determined and ruled that any documents considered to be a “record” as defined in s. 278.1 of the Code relating to the complainant would necessitate an application to determine their admissibility, notwithstanding that the documents had come into the possession of the accused through the disclosure process.

Issue No. 2 – The Documents at Issue and the Application

a) The Legal Framework and the Applicable Legal Principles

17Sections 278.92(1) and (2) of the Code provide that record relating to a complainant that are in the possession of the accused are presumptively inadmissible. For a party to rely on the records as admissible evidence at trial, they must show that records have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice. In making this determination, the court is mandated to consider the factors set out in s. 278.92(3) of the Code, as follows:

(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, provincial court judge or justice considers relevant.

18The Supreme Court of Canada in J.J. commented extensively on the records screening regime and the factors enumerated under s. 278.92(3) of the Code. At para. 129, quoting R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 631, the Supreme Court in J.J. said “[t]he record screening regime embodies the fundamental principle governing the law of evidence: ‘… relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the value of the evidence must outweigh its potential prejudice to the conduct of a fair trial’”. It also made clear, at para. 53, that minor incursions into a complainant’s privacy are to be expected, and that such privacy interests “will be at serious risk only where the sensitivity of the information strikes at the subject's more intimate self”. The Supreme Court in J.J. went on to extensively consider the notion of “informational privacy” in connection with complainants in sexual offences at paras. 43-45, and 120, recognizing that “the dissemination of highly sensitive personal information can result not just in discomfort and embarrassment, but in an affront to the affected person’s dignity” (emphasis omitted).

19As with s. 276 of the Code, the records screening regime seeks to protect complainants against harmful myths and stereotypes and to prevent accused persons from introducing evidence that engages the “twin myths” about complainants in sexual offences: J.J., at para. 134.

20It is clear that even though a complainant may not have a reasonable expectation of privacy with respect to an accused being in possession of a text or e-mail message that they exchanged, he or she may still have a reasonable expectation of privacy with respect to the use of that same message in a criminal trial: J.J., at para 48. The court must balance the personal and intimate nature of the communication, its relevance to the offence in question, the relationship between the parties at the time of the communication, and the objective risk of disclosure. In each case, the court is required to consider the communications in question and determine whether a reasonable expectation of privacy exists.

21The impact that admitting the complainant’s private records into evidence might have on the encouraging (or discouraging) of other complainants to come forward and report their own experiences is important. As noted in J.J., at para. 3, Bill C-51 – Parliament’s first introduction of a statutory procedure governing the admissibility of complainants’ private records held by accused persons – was enacted to remove the barriers that have deterred complainants from coming forward.

b) Application of the Law to the Records at Issue

22As previously mentioned, the Crown has conceded that the Non-Records do not constitute “records” as defined in s. 278.1 of the Code and are therefore not subject to the screening regime in s. 278 of the Code. Also, counsel for Mr. Gallan has made certain redactions to the Document Appendix that represent text messages (or portions thereof) that will not be relied upon at trial.

23The defence redactions from the Document Appendix are as follows:

• Page 66, 20/05/21, 3:48:20 and 3:52:43
• Page 67, 20/05/21, 3:53:34
• Page 79, 20/05/21, 3:08:11
• Page 192, 29/05/21, 7:25:47
• Page 193, 29/05/21, 7:29:01
• Page 193, 29/05/21, 7:43:00
• Page 193, 29/05/21, 7:43:16
• Page 194, 29/05/21, 8:43:45
• Page 222, 01/06/21, 8:02:55
• Page 222, 01/06/21, 8:03:09
• Page 254, 04/06/21, 1:09:42
• Page 258, 04/06/21, 1:18:42
• Page 258, 04/06/21, 1:18:58
• Page 269, 04/06/21, 2:30:11
• Page 272, 04/06/21, 7:12:20
• Page 285, 05/06/21, 2:03:15 (partial redaction)
• Page 308, 07/06/21, 8:34:47

24The foregoing list of defence redactions from the Document Appendix shall be excluded from evidence at trial, on consent (the “Consent Redactions”).

25In addition to the Consent Redactions, the following (the “Disputed Messages”) are the remaining specific messages with respect to which the Crown submits the complainant has a reasonable expectation of privacy, and ought to be excluded:

• Page 121, 23/05/21, 8:26:17
• Page 176, 27/05/21, 12:38:34
• Pages 192-201, 29-30/05/21, all remaining messages exchanged
• Page 262, 04/06/21, all messages on page
• Page 269, 04/06/21, all remaining messages on page
• Pages 283-286, 05/06/21, all messages exchanged
• Page 308, 07/06/21, all messages exchanged

26The Crown conceded, with the concurrence of the complainant, that the evidence contained in the Disputed Messages is “capable of being admissible” as set out in s. 278.93(4) of the Code, and that the application should proceed to a “Stage 2” hearing under s. 278.94 of the Code. Although no order was made that the hearing be held in camera, it was conducted via videoconference and no members of the public were present.

27In general, the Crown and the complainant oppose the admissibility of the Disputed Messages. They express concerns that the evidence is significantly more likely to expose myths and stereotypes than to assist the court in arriving at a just determination, and that allowing the complainant to be cross-examined on potential animus against the accused could create potential prejudice to the complainant’s dignity. This evidence is presumptively inadmissible pursuant to s. 278.92(1) of the Code.

28The accused takes the position that the text messages are relevant to an issue at trial, namely the complainant’s credibility and motive to fabricate. The complainant has testified that she no longer wanted to have any kind of relationship with Mr. Gallan after the events that are alleged to have occurred on May 20, 2021.

29The Crown does not dispute that the Disputed Messages do not contain any sexual component and, as a result, the application does not engage s. 276 of the Code. The issue of admissibility must therefore be determined pursuant to s. 278.92(2) (b), which reads:

The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

30In order to determine whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, the court must consider the factors enumerated in s. 278.92(3) (a)-(i) of the Code. Items c) and f) are not engaged in this case.

a) The interests of justice, including the right of the accused to make full answer and defence

31One of the theories of the defence is that the complainant had a motive to fabricate her allegation of sexual assault to conceal an incident of consensual sexual activity from her fiancé. The credibility of the complainant is essential to this theory, and the accused argues that he must be able to cross-examine the complainant on the Disputed Messages in order to make full answer and defence. The accused also argues that the Disputed Messages are inconsistent with the complainant’s evidence that she wanted little to do with him after May 20, 2021. The Crown argues that the relevance of the Disputed Messages is not clear since the primary issue is what happened on May 20, 2021 and that there is a risk of the messages being used to support impermissible myth- and stereotype-based reasoning.

b) Society’s interest in encouraging the reporting of sexual assault offences

32The accused submits that this interest will not be impaired, or will be minimally impaired, by the use of the Disputed Records. Any such effect would be substantially outweighed by the prejudice to the accused if the Disputed Records could not be used. The Crown did not suggest that the specific Disputed Messages would discourage the reporting of sexual assault offences but emphasized the importance of protecting the privacy of the complainant in encouraging such reporting.

c) Society’s interest in encouraging the obtaining of treatment by complainants of sexual offences – Not Engaged

d) Whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case

33The accused submits that the admission of the Disputed Records will assist the court in arriving at a just determination in this case. Credibility is an issue. The Crown maintains that the relevance of the Disputed Messages is marginal.

e) The need to remove from the fact-finding process any discriminatory belief or bias

34The accused has submitted that the purpose for which the Disputed Messages are sought to be admitted is simply to provide a full picture of events so that he can make full answer and defence and does not relate to any discriminatory belief or bias or engage any improper reasoning. The Crown has suggested that the Disputed Messages touch on harmful myths and stereotypes, including the notion that a victim of sexual assault will avoid all contact with a perpetrator after the fact. It is clear from the authorities that there is no “expected behaviour” on the part of a victim of sexual violence.

f) The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury – Not Engaged

g) The potential prejudice to the complainant’s personal dignity and right of privacy

35The accused has submitted that there is nothing in the Disputed Messages that would be prejudicial to the complainant’s personal dignity and privacy. The Crown takes the position that the Disputed Messages are of a personal and intimate nature and are of limited relevance to the issues before the court. The Crown further submits that the impact of intrusions upon the privacy of a complainant in a sexual offence trial may be qualitatively worse than would be the case with victims of other types of crimes.

h) The right of the complainant and of every individual to personal security and to the full protection and benefit of the law – Not Engaged

i) Any other factor that the judge…considers relevant

36The accused argues that he ought to be allowed to rely on the same evidence with which to defend himself that the complainant voluntarily provided to the OPP to try to convict him. I do not consider this to be a relevant factor, as it is not the focus of the enquiry. Production and admission as evidence at trial are, as noted in J.J., two different concepts, and the s. 278 records process is founded on the presumptive inadmissibility of records relating to complainants. The Crown notes that the timing of this application ought to be considered in that it was not brought until the cross-examination of the complainant had begun. Although the complainant has now testified in cross-examination that she did not want to have anything to do with the accused after May 20, 2021, I do not think that the accused is “bootstrapping” his application in the manner that was described by Gomery J. (as she then was) in R. v. Green (28 May 2021), Ottawa, 19-SA4367 (Ont. S.C.), at para. 16.

c) Analysis

37I will consider the Disputed Messages as grouped by the Crown in its factum.

May 23, May 27, and June 5

38The Disputed Messages from May 23, 2021, May 27, 2021, and June 5, 2021 carry a risk of engaging impermissible myths and stereotypes, according to the Crown. The accused disputes this and argues that these messages contradict the evidence given by the complainant to the effect that she had not wanted anything further to do with the accused after May 20, 2021.

39I am satisfied that the cross-examination of the Complainant thus far was permissible and does not engage any impermissible myths and stereotypes. Although the complainant has a privacy interest in the May 23, May 27, and June 5 messages, and they are clearly presumptively inadmissible for this reason, I am satisfied that messages are relevant to the defence of motive to fabricate and to the credibility of the complainant in this regard. The use of these messages could assist the court in assessing the credibility of the complainant and in reaching a just determination of the charge before the court. For that reason, the interests of justice and the right of Mr. Gallan to make full answer and defence outweigh the privacy interest of the complainant, and the messages are admissible.

May 29

40The Crown takes the position that these messages engage a significant privacy interest on the part of the complainant as they relate to the complainant’s state of mind on May 29, including thoughts of self-harm, and that they have very little, if any, probative value. The accused concedes that there may be a privacy interest, but that is outweighed by the probative value of the messages.

41Balancing the factors in s. 278.92(3) of the Code, particularly a), b), d), and g), I find that the probative value of these messages is marginal at best, and the value of the messages to the accused’s right to make full answer and defence is minimal. On the other hand, the privacy interest of the complainant in most of the Disputed Messages of May 29 is very high. That is particularly the case for the messages up to and including the message that is time-stamped 9:45:13. The messages pertain almost exclusively to the mental health of the complainant and have no bearing on the issues before the court. Those messages (the Disputed Messages on pages 192-197 inclusive) will be excluded from evidence.

42The messages from time stamp 9:45:58 onward, however, engage a very slight privacy interest on the part of the complainant, but may assist the court in assessing her credibility, without any risk of impermissible reasoning. Therefore, the May 29 Disputed Messages from time stamp 9:45:58 onward (pages 198-201) will be admissible.

June 4

43The remaining Disputed Messages from June 4 are those set out on pages 262 and 269. Again, the Crown takes the position that the messages are of a private nature and not relevant to the issues at trial. The accused submits that the messages may attract a privacy interest, but it is outweighed by the probative value of the messages.

44Once again balancing the factors in s. 278.92(3) of the Code, I find that the probative value of these messages is marginal at best, and the value of the messages to the accused’s right to make full answer and defence is minimal. On the other hand, the privacy interest of the complainant in the Disputed Messages of June 4 is very high. The messages on pages 262 and 269 shall be excluded from evidence.

June 7

45The Disputed Messages on page 308 include a redacted message from Mr. Gallan to the complainant, a subsequent message from him that says “Lnao”, and a response from the complainant that says “I’m on my period lmao”.

46In argument, counsel for Mr. Gallan had argued that the complainant had testified that she was on her period on May 20, 2021, and she wished to put this to her to challenge her credibility. However, that was not the complainant’s evidence. Rather, she had said that she had told Mr. Gallan on May 20, 2021 that she was on her period as a means of avoiding unwanted sexual contact; she did not say that she was actually on her period in her testimony.

47No detailed analysis is required in this instance. The Disputed Messages of June 7, 2021 are irrelevant and inadmissible.

Conclusion

48In summary, the Consent Redactions and the following Disputed Messages shall be excluded from evidence:

• Pages 192-197, 29/05/21, all remaining messages exchanged
• Page 262, 04/06/21, all messages on page
• Page 269, 04/06/21, all remaining messages on page
• Page 308, 07/06/21, all messages exchanged

49The following Disputed Messages may be entered into evidence for purposes of cross-examination of the Complainant:

• Page 121, 23/05/21, 8:26:17
• Page 176, 27/05/21, 12:38:34
• Pages 198-201, 29-30/05/21, all remaining messages exchanged
• Pages 283-286, 05/06/21, all messages exchanged

50I find that the Non-Records do not engage the complainant’s personal dignity and privacy interests; those documents do not constitute a “record” as defined in s. 278.1 of the Code and are therefore not subject to the screening regime in s. 278 of the Code.

51I would like to thank all counsel for their thoughtful and thorough submissions. I would ask Ms. DeMelo to prepare an updated version of the Document Appendix containing only the admissible documents and the Non-Records, with a view to marking that as a lettered exhibit on the resumption of the trial.

52Having received submissions with respect to the Complainant’s right to privacy, and taking that interest into account along with the interests of justice, I order pursuant to s. 278.95(1) (d)(ii) of the Code that these reasons may be published, broadcasted, or transmitted.

Original signed by “J. Ross Macfarlane”

J. Ross Macfarlane Justice

Released: September 26, 2024 Corrected: October 10, 2024

AMENDED DECISION: Paragraph 52 of the original ruling dated September 26, 2024, has been deleted and replaced with “ Having received submissions with respect to the Complainant’s right to privacy, and taking that interest into account along with the interests of justice, I order pursuant to s. 278.95(1) (d)(ii) of the Code that these reasons may be published, broadcasted, or transmitted.” No other changes have been made to the decision. This copy replaces all other copies.