WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2019-06-12

Docket: C63707

Panel: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

N.C. Appellant

Counsel

For the Appellant: Faisal Mirza

For the Respondent: Avene Derwa

Hearing and Appeal

Heard: March 27, 2019

On appeal from: The conviction entered on February 28, 2017 by Justice Larry B. O'Brien of the Ontario Court of Justice.

Decision

Hoy A.C.J.O.:

Introduction

[1] Following a trial by judge alone, the appellant, N.C., was convicted of 11 human-trafficking, sexual and violent offences in relation to his former girlfriend, J.W.: robbery (s. 343); assault causing bodily harm (s. 267(b)); procuring prostitution (s. 286.3(1)); financial benefit from prostitution (s. 286.2(1)); proceeds of indictable offence (s. 355(a)); sexual assault causing bodily harm (s. 272(2)); assault (s. 266); transport to a bawdy house (s. 212(1)(a)); trafficking a person (s. 279.01(1)); financial benefit from trafficking a person (s. 279.02); and withholding a travel document (s. 279.03). He was sentenced to a total of five and one-half years' incarceration, less three months on account of pre-trial custody and restrictive bail conditions.

[2] The appellant was arrested following a violent incident in the parking lot of a Kingston apartment building, during which several witnesses heard J.W. scream and saw her being dragged out of the appellant's car.

[3] Screenshots taken by police of over 400 iPhone text messages between the appellant and J.W. that J.W. provided to the police were admitted at trial with the consent of the appellant. The text messages were highly cogent evidence of the appellant's control over J.W.'s sexual, physical and financial autonomy.

[4] The appellant appeals his convictions and seeks a new trial. He makes three main arguments.

[5] First, he argues that the Supreme Court's decision in R. v. Marakah, 2017 SCC 59, [2017] 2 SCR 608, released following his trial, fundamentally changed the law of search and seizure, and he is entitled to a new trial to argue, based on Marakah, that the text messages adduced at trial were obtained in violation of s. 8 of the Charter and ought to be excluded pursuant to s. 24(2).

[6] Second, he argues that the trial judge reversed the onus of proof.

[7] Finally, he argues that the verdicts on counts 1 (robbery) and 11 (withholding a travel document) were unreasonable.

[8] Below, I address these arguments in turn.

1. The Marakah Argument

[9] In Marakah, the Supreme Court considered whether Nour Marakah had standing to argue that text messages he sent regarding illegal transactions in firearms that were recovered from his accomplice's iPhone should not be admitted against him. The police search of his accomplice's phone was not Charter-compliant. A majority of the Supreme Court concluded that, depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8, and, in that case, Mr. Marakah had standing to argue that the text messages at issue enjoyed protection under s. 8.

[10] The Supreme Court was clear that an exchange of electronic text messages will not always attract a reasonable expectation of privacy and protection under s. 8. "[W]hether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge": Marakah, at para. 5. The claimant must have had a subjective expectation of privacy in the subject matter of the alleged search, and that subjective expectation of privacy must have been objectively reasonable.

[11] I reject the appellant's argument that Marakah entitles him to a new trial.

Leave to Raise a New Issue on Appeal Based on a Change in the Law

[12] The appellant acknowledges that this court generally will not permit an issue to be raised for the first time on appeal. And, in requesting a new trial, he effectively concedes that the evidentiary record does not allow this court to fully, fairly and effectively determine whether the appellant had a reasonable expectation of privacy in the text messages. However, in his oral submissions he argues that Marakah fundamentally changed the law on the application of s. 8 of the Charter to text messages. The premise of his argument is that he could not reasonably have been expected to have raised the point at trial. Because the appellant remains "in the system", he is "entitled to have his … culpability determined on the basis of what is held to be the proper and accurate interpretation" of the law at the time of appeal: R. v. Wigman, [1987] 1 S.C.R. 246, at pp. 257 and 261. The appellant relies on decisions of the Alberta and Saskatchewan appellate courts for the proposition that, in such circumstances, the lack of a proper evidentiary record is not fatal, but rather supports the necessity of a new trial: R. v. Albus, 2015 SKCA 121, 467 Sask. R. 232; R. v. Weir, 1999 ABCA 275, 250 A.R. 73.

[13] The Crown acknowledges that an unforeseen, fundamental change in the law of the type considered by the Supreme Court in Wigman may warrant an exercise of discretion to hear a new issue on appeal, but argues that the Supreme Court's decision in Marakah did not constitute such a change. Moreover, the Crown argues, relying on R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43, leave to appeal refused, [2016] S.C.C.A. No. 432, that the evidentiary record must be sufficient to permit this court to fully, effectively and fairly determine the issue raised on appeal, and, as the appellant acknowledges in requesting a new trial, the evidentiary record in this case is not sufficient for this court to determine the issue he now raises.

[14] In Reid, at para. 43, relying on R. v. Brown, [1993] 2 S.C.R. 918, at p. 927, per L'Heureux-Dubé J. (dissenting), Watt J.A., for the court, wrote that a party seeking to obtain leave to raise an issue for the first time on appeal must satisfy three preconditions:

1. the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

2. the failure to raise the issue at trial must not be due to tactical reasons; and

3. the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.

[15] Further, Watt J.A. added at para. 44, "the decision whether or not to grant or refuse leave to permit a new argument is a discretionary decision informed by a balancing of the interests of justice as they affect all parties."

[16] However, the three-part test in Reid was not articulated in the context of a change in the law. In Reid, the new issue sought to be raised was a constitutional challenge to the validity of step six of the procedure established by the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421, to deal with applications to exclude evidence allegedly obtained in breach of s. 8 of the Charter.

[17] More recently, in R. v. J.D., 2018 ONCA 947, 367 C.C.C. (3d) 403, this court granted leave to the appellant to raise a new constitutional issue on appeal based on the Supreme Court's ruling in R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, which was released after the appellant's sentencing, despite the fact that the evidentiary record would need to be supplemented to allow the parties to properly address whether the alleged infringement of s. 11(i) of the Charter was justified under s. 1 of the Charter. The court cited Reid for the proposition that the onus is on the appellant to convince the court to exercise its discretion in favour of hearing an argument not raised below; noted that counsel's failure to raise the issue below could not be described as a tactical decision; and considered the potential significant negative impact of the impugned orders under ss. 161(a) and (b) of the Criminal Code on the appellant and the apparent merits of the constitutional argument. The court concluded, at para. 7, that "whatever problems there may be with assembling an appropriate record are outweighed by the appellant's legitimate interest in advancing the constitutional issue."

[18] Further, in Brown, the majority, in allowing the appeal "for substantially the reasons given by Harradence J.A. in the Alberta Court of Appeal" and ordering a new trial on the charge of first degree murder, permitted the Crown and the appellant to lead evidence in the new trial going to the new Charter issue raised on appeal as a result of the Supreme Court's post-trial decision in R. v. Hebert, [1990] 2 S.C.R. 151. While Harradence J.A. would have set aside the appellant's conviction and ordered a new trial, he had found that there was a sufficient factual foundation to determine, and had determined, the new Charter issue in the appellant's favour. Arguably, the majority's disposition in Brown suggests that it concluded that the evidentiary record before Harradence J.A. was not sufficient to fairly determine the new Charter issue.

[19] I am not persuaded that Reid should be interpreted as having determined that where a fundamental or "dramatic" change in the law is established, the inadequacy of the record to support consideration of the impact of that change is an absolute bar to the issue being raised on appeal. That issue is for another day, when it is determinative of the appeal. Here, I conclude that leave should not be granted regardless of that factor.

[20] As I will explain, Marakah did not constitute a fundamental change in the law between the time that the text messages were introduced into evidence at trial and appeal. Moreover, I am not persuaded that the appellant's failure to raise the issue at trial was not due to tactical reasons. Those factors satisfy me that no miscarriage of justice will result from refusing to order a new trial to permit the appellant to argue Marakah.

(i) Marakah Was Not a Fundamental Change in the Law

[21] The chronology belies the appellant's assertion that this is a case where a fundamental change in the law occurred between the admission of the text messages at trial and appeal.

[22] The Crown introduced the text messages through J.W. during her evidence in early June 2016. At that time, the s. 8 issue now raised was on reserve in this court in Marakah. The s. 8 jurisprudence at the time the text messages were introduced is best described as undecided.

[23] The trial court in Marakah and several other Ontario trial court decisions had held that the sender of text messages generally does not have standing to assert a breach of s. 8 of the Charter based on the search of those text messages stored on another person's cell phone (R. v. Thompson, 2013 ONSC 4624, at para. 43; R. v. Pammett, 2014 ONSC 1213, at para. 12; R. v. Keith Ritchie, 2016 ONSC 765, at para. 36). However, in 2012, in R. v. S.M., 2012 ONSC 2949, Nordheimer J. (as he then was) had made several comments in obiter on the expectation of privacy in text message communications. Further, in 2015, after the trial decision in Marakah, the British Columbia Court of Appeal had held in R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151, that police violated a drug dealer's s. 8 right to be secure against unreasonable search and seizure when they read text messages he had sent to an intended purchaser stored on the purchaser's cell phone. Notably, Pelucco was the only appellate authority on this issue at the time that the text messages were admitted.

[24] Thus, at the time that the text messages were introduced into evidence with the consent of the appellant, there was significant support for the argument that the sender of the text messages had a reasonable expectation of privacy in the communications after they were received by the intended recipient. But the appellant chose not to make that argument.

[25] The decision of this court in Marakah was released on July 8, 2016: 2016 ONCA 542, 131 O.R. (3d) 561. The majority of this court held that Mr. Marakah did not have standing to challenge the admission of the text messages recovered from his accomplice's iPhone. Although the appellant's trial was still ongoing, the text messages had been admitted with the appellant's consent a month earlier and the Crown had closed its case. The only thing remaining in the trial was to complete the cross-examination of the appellant.

[26] The Supreme Court subsequently reversed this court in Marakah and took a position consistent with Pelucco. Any significant change in the law was therefore the Supreme Court's reversal of this court's decision in Marakah. However, the Supreme Court's decision in Marakah did not constitute a significant change from the state of the law at the time the text messages were admitted at trial with the appellant's consent. Rather, it changed law that was established as a result of this court's decision in Marakah, which was released after the text messages were admitted.

(ii) Tactical Reasons

[27] The appellant's decision not to object to the admission of the text messages is fully explained by his position at trial. The appellant's position and his testimony at trial was that he had not authored any of the text messages and that J.W. may have edited or fabricated them. Of course, that position was inconsistent with an assertion that he had a reasonable expectation of privacy in the text messages.

[28] It was open to the appellant to argue that his s. 8 rights were infringed when police took screen shots of his text conversation with J.W., but he instead consented to the admission of the texts and argued that he had not authored them. Tellingly, the appellant does not allege ineffective assistance of counsel.

[29] Further, it is this tactical decision that gives rise to arguments about the sufficiency of the record. Marakah is clear that whether a reasonable expectation of privacy in a text conversation is present turns on a case-specific assessment of the facts. It requires an examination of the totality of the circumstances: R. v. Mills, 2019 SCC 22, at para. 13.

[30] Because the text messages were admitted at trial with the consent of the appellant and because the appellant denied authoring them, it was unnecessary for the parties to elicit detailed evidence about the totality of the circumstances informing the issue of whether the appellant had a subjective and objectively reasonable expectation of privacy in the text conversation or about matters that would inform a s. 24(2) analysis. Presumably, the appellant would seek to resile from the position that he did not author the texts at a new trial. Indeed, the appellant's submission that a new trial should be ordered effectively concedes that beyond simply raising a new issue, he seeks to advance a different theory of the case.

(iii) Miscarriage of Justice

[31] Where an appellant makes a tactical decision not to pursue an issue at trial, it is not a miscarriage of justice to deny him the right to pursue that argument on appeal. Societal interest in the finality of litigation in criminal matters must take precedence: R. (R.), at pp. 198-199; Brown, at pp. 923-924.

[32] Further, even if this court were to accede to the appellant's submission and order a new trial so that he could raise the s. 8 argument based on Marakah, assuming for the sake of this argument that he could establish a reasonable expectation of privacy in the text messages and that the police violated his s. 8 right by photographing them in these circumstances (which remains an open issue post-Marakah: see Marakah, at para. 50), there is a strong likelihood that the evidence would not be excluded under s. 24(2) of the Charter.

[33] The facts in this case are very different from Marakah, where a majority of the Supreme Court excluded the text messages on the accomplice's phone under s. 24(2). In Marakah, the text messages were on the phone of an accomplice who had not consented to the seizure of his phone or to the disclosure of the text conversation in question. Both Mr. Marakah and his accomplice asserted reasonable expectations of privacy in the conversation and challenged its admissibility on s. 8 grounds.

[34] Here, the text messages were on the phone of a complainant who had been abused by the appellant and seemingly authorized or allowed police to take screenshots of the texts. The seriousness of any Charter-infringing conduct is much less in this case than in Marakah, and society's interest in the adjudication of this case on its merits is very significant. There is a strong likelihood that those factors would outweigh the impact on the appellant's Charter-protected privacy interests, such that the admission of the evidence would not be found to bring the administration of justice into disrepute.

[35] Accordingly, I am not persuaded that a refusal to consider the admissibility of the text messages in light of Marakah risks a miscarriage of justice.

2. Reversal of the Onus of Proof

[36] The appellant argues that the Crown improperly cross-examined him, by asking him why he did not obtain his cellphone from police to prove he had not sent the text messages and by asking him to comment on the veracity of his mother's and his new girlfriend's statements to police. He says this improper cross-examination led the trial judge to reverse the onus of proof.

[37] I reject this argument. At various points in his reasons, the trial judge specifically instructed himself "that the burden of production and persuasion rests upon the prosecution", that the accused need not prove a motive to fabricate on the part of Crown witnesses, that the Crown must prove each essential element of the offence beyond a reasonable doubt, that there is no obligation on the defence to call any evidence or any witness, and that the onus remains on the Crown at all times. The trial judge considered and applied R. v. W.(D.), [1991] 1 S.C.R. 742. Whether or not some of the questions posed in cross-examination were excessive, there is no indication that those questions led the trial judge to shift the burden of proof to the appellant or resulted in a miscarriage of justice.

3. Unreasonable Verdicts on Counts 1 and 11

[38] The appellant argues that the verdict on count 1 (robbery) is unreasonable and cannot stand because the trial judge gave no consideration to self-defence during the final incident in the car, despite the appellant having argued self-defence, and because the trial judge's reasons do not permit appellate review of this issue. The appellant also argues that the verdict on count 11 (withholding a travel document) is unreasonable because it rests entirely on contradictory evidence from J.W. that is neither credible nor reliable.

[39] I reject these arguments. A reasonable trier-of-fact, properly instructed and acting judicially, could have convicted the appellant of counts 1 and 11.

[40] The appellant's self-defence argument in relation to count 1 relied entirely on his version of events. He testified that J.W. got in his car with money in her hand, which he assumed was for her phone bills and hotel room. She gave him the money, but then asked him to return it. At that point, a man he did not know, later identified as Mr. Wilkinson, opened the driver's side door and punched him in the head. J.W. then pulled out a knife and swung it at him. He restrained her and then got out of the car and scuffled with Mr. Wilkinson. He noticed J.W. trying to drive away and re-entered the car. Mr. Wilkinson was in the passenger seat screaming, "Where's the money?" He told Mr. Wilkinson to get out of his car. The appellant then drove away.

[41] The trial judge found that the appellant's evidence was "illogical, unbelievable, and inconsistent in material matters". He rejected "his exculpatory testimony on the matters before the court" and was "not left in reasonable doubt by his evidence or evidence on his behalf." There is no basis to interfere with the trial judge's assessment of the appellant's credibility.

[42] Further, the trial judge accepted J.W.'s narrative of events. J.W. was with a client, in the client's apartment. The appellant advised her by phone that he was in his car outside, with her drugs. She wanted to end her relationship with the appellant. Because she was afraid of him, she took a small steak knife with her. She got in the appellant's Mercedes and gave the appellant money for her drugs. But the appellant did not give her any drugs. Instead, he began beating her – including about the face, ripping hair out of her head, and biting her rib area. She took out her knife and tried to cut the appellant. But she struck something else, breaking the knife, which she then dropped. The appellant pulled her out of his car, left her bleeding on the pavement, and drove away, with her money.

[43] Two nearby residents testified that they heard J.W.'s screams, and one of them testified that he attempted to stop the appellant's car after he saw J.W. thrown out of it. Another resident also saw J.W. being dragged out of the car. J.W.'s evidence was also corroborated by the photographs of her injuries, the medical evidence and text messages between herself and the appellant. There is no basis to interfere with the trial judge's acceptance of J.W.'s evidence.

[44] It is clear from the trial judge's reasons why he did not address self-defence. His rejection of the appellant's exculpatory evidence, and acceptance of J.W.'s narrative, precluded self-defence. It was unnecessary for the trial judge to specifically address the appellant's self-defence argument. The verdict on count 1 is reasonable.

[45] The appellant argues that the verdict on count 11 (withholding a travel document) is unreasonable because J.W. testified that she was in possession of her passport on the night of his arrest and conceded she knew where her passport was stored when she lived with the appellant.

[46] J.W. testified that while living with the appellant, she first realized he had taken her passport when she found it under the mattress. By that point, it had been under his control for a couple of months. The appellant would take her passport and other forms of identification away "regularly". Usually, he would hold on to her passport until they got to a hotel and then would give it to her to check into the hotel in her name. After she checked in, he would take her passport and put it back in the car or another "safe place" to keep it. He told her this was so she could not run off. She believed that he did this to make her feel like she was "trapped". The fact that J.W. testified she had possession of her passport on the date of his arrest and at one point knew that the appellant had hidden her passport under the mattress does not make the verdict on count 11 unreasonable.

4. Disposition

[47] For these reasons, I would dismiss the appeal.

Released: June 12, 2019

"Alexandra Hoy A.C.J.O."

"I agree Doherty J.A."

"I agree B. Zarnett J.A."