Court File and Parties

Ontario Court of Justice

Date: 2019-10-25

Court File No.: Toronto 4817 998 18-75003118

Between:

Her Majesty the Queen Respondent

— And —

Hamoon Ekhtiari Applicant

Before: Justice William B. Horkins

Heard on: August 22, September 5, 11 and October 7, 2019

Ruling on an Application for Directions released on: October 25, 2019

Counsel:

• Ms. J. Witkin, counsel for the Crown
• Ms. M. Savard, counsel for the accused Hamoon Ekhtiari

HORKINS, W. B., J.

Introduction

[1] This application for directions is brought by the accused as a precaution in anticipation of objection being taken to the use of certain materials at trial which may trigger the mandatory screening provisions relating to the use of private records and/or evidence of extrinsic "sexual activity" in the course of this sexual assault trial scheduled to proceed before me.

[2] The uncertainty in the law that precipitates the need for counsel to seek directions in this case arises from the recent amendments to the Criminal Code and developments in the interpretation and application of the special screening provisions now applicable to sexual assault trials.

[3] For ease of reference, the current scheme is set out below:

Evidence of Complainant's Sexual Activity

Section 276(1) — In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

Conditions for Admissibility

Section 276(2) — In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial; and

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors That Judge Must Consider

Section 276(3) — In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(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) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant's personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

Interpretation

Section 276(4) — For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

Definition of Record

Section 278.1 — For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

Admissibility — Accused in Possession of Records Relating to Complainant

Section 278.92(1) — Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for Admissibility

Section 278.92(2) — 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,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(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.

Factors That Judge Shall Consider

Section 278.92(3) — In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(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.

Application for Hearing — Sections 276 and 278.92

Section 278.93(1) — Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Form and Content of Application

Section 278.93(2) — An application referred to in subsection (1) must 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, and a copy of the application must be given to the prosecutor and to the clerk of the court.

Jury and Public Excluded

Section 278.93(3) — The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

Judge May Decide to Hold Hearing

Section 278.93(4) — If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).

Hearing — Jury and Public Excluded

Section 278.94(1) — The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Complainant Not Compellable

Section 278.94(2) — The complainant is not a compellable witness at the hearing but may appear and make submissions.

Right to Counsel

Section 278.94(3) — The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Judge's Determination and Reasons

Section 278.94(4) — At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and

(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and

(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

Record of Reasons

Section 278.94(5) — The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

[4] In a sexual assault trial, s. 276 of the Criminal Code provides that sexual activity, other than the subject matter of the charge, cannot be "adduced" without leave of the Court following a proscribed screening process.

[5] In addition, s. 278.1 and s. 278.92 combine to provide that the accused cannot "adduce" any "record" relating to the complainant for which there is a "reasonable expectation of privacy" without leave of the Court following the proscribed screening process.

[6] One particular aspect of the recent Code amendments that triggers the need for directions in this case is the newly expanded definition of extrinsic "sexual activity", which statutorily includes not just conduct, but now also includes certain communications; "any communication made for a sexual purpose or whose content is of a sexual nature."

[7] The accused has in his possession a volume of digital communications exchanged between the parties during their relationship up to and including the events forming the subject matter of the charge. These communications are described as evidencing a mutual understanding of their shared sexual preferences as it existed prior to and on the occasion of the events in question.

[8] The screening process mandated by these recently amended sections of the Code is intended to protect the dignity and privacy interests of complainants as well as the integrity of the fact-finding function of the trial court. These provisions ensure that this kind of evidence is only admitted at trial if it is of "significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice". The screening process as set out in the Code mandates consideration of several specific factors.

[9] An appreciation of the context and purpose of these screening provisions is important in guiding their appropriate application. The mere existence of these provisions illustrates that sexual assault cases are different. These screening provisions are designed to screen out evidence that is irrelevant, abusive and tending to trigger improper reliance on the "twin myths" that a sexually active complainant is somehow less worthy of belief or more likely to have consented to the specific sexual activity at issue before the Court.

[10] In R. v. A.R.S., Justice Breen, of our court, provides a very useful summary of the historical development of these provisions up to and including both the most recent case law in the Supreme Court and the recent amendments to the Code. I have instructed myself with that history very much in mind.

The General Nature of This Case

[11] The accused in this case is charged with sexual assault with a weapon. I am advised by counsel that the accused and complainant had some form of relationship prior to the events in question. The alleged assault took place prior to a planned brunch date. The complainant alleges that the "rough sex" that took place was without her consent. It is anticipated that the defence position will be that the "rough sex" was entirely consensual activity, between participants, who were familiar with each other's sexual preferences and, in particular, involving dominant/submissive role play. It is anticipated that this aspect of the case is important to understanding the true state of mind of the complainant at the time of sexual activity in question.

[12] The relationship between the parties arose from being "matched" on the online dating application Tinder six months prior to the alleged assault. During the relationship they exchanged a volume of digital communications, many of which contain discussions concerning their sexual preferences. The accused is in possession of these communications. Some messages relate directly to the meeting at which the alleged assault took place; others are more remote in time and may not relate directly to the specific date in question but are said to evidence a mutual understanding of sexual preferences as it existed at the time of the activity which is the subject matter of the charge.

[13] The assault is alleged to have occurred on June 16th, 2019 and so, for the purposes of discussion, and ease of reference, the communications have been grouped into two timeframes and labelled the "June 16th communications" and the "pre-June 16th communications".

The Anticipated Use of the Communications

[14] Counsel for the accused anticipates that she may want to question the complainant respecting both groups of these communications. One possible line of questioning might go to establishing the participants' mutual awareness of their shared sexual preferences and establishing the complainant's state of mind at the time of the activity complained of. Counsel submits that no pre-screening is required for the communications directly relating to the June 16th sexual activity as these are part of the subject matter of the charge.

[15] The pre-June 16th communications may or may not come into play at trial. These communications may become relevant at trial if, for instance, the complainant denies that she and the applicant were aware of each others' sexual preferences, or to rebut evidence led by the Crown to support an inference that their past relationship somehow makes consent implausible. The accused may wish to use these prior communications for impeachment purposes.

The Position of the Crown

[16] The Crown submits that the communications, which have not been produced, may all be subject to a private record screening regime, both as private records and as evidence of extrinsic "sexual activity". The Crown therefore seeks a direction that if the accused has any intention of adducing this material at trial, then the accused must bring a pretrial application for leave to do so.

[17] The Crown submits that, from the description given by counsel, it appears that the complainant may have a reasonable expectation of privacy in the communications and so they would be "records" within the meaning of 278.1 and subject to the screening provisions of s. 278.92. Secondly, because this is a sexual assault case, the provisions of 276 mandate that communications which are "of a sexual nature" are subject to screening under that section unless they are part of the subject matter of the charge before the Court.

[18] The Crown submits that the "June 16th" communications may or may not form part of the subject matter of the charge. One would need to review the material in order to make that determination. Communications, as opposed to actual conduct, may be more difficult to categorize definitively as being sufficiently connected or proximate to the events to be considered as part of the subject matter of the charge.

Directions Sought

[19] Counsel have asked for direction as to whether, and when, an application must be made to deal with these issues. The submissions from counsel in this matter were extensive and covered many related issues directly and indirectly relevant to the need for some direction prior to the trial commencing. These submissions will undoubtedly continue to be of benefit to the Court as this matter unfolds. However, I have intentionally tried to approach this application with a very narrow focus on only those points that I consider to be presently essential to assist counsel in moving this matter forward. My assumptions as to the proper characterization of the communications at issue are, at this stage, based on the representations of counsel and so are subject to being revisited if the evidence at trial so requires.

[20] The first question raised is: Are these digital exchanges "records" within the scope of the statutory screening regime?

[21] Section 278.1 defines "record" as any "form of record" containing personal information for which there is a "reasonable expectation of privacy and includes" a list of what have traditionally been termed either "third party records" or personal journals. The section says nothing expressly about communications, digital or otherwise, between the parties.

[22] In R. v. M.S., Justice Chapman, at paragraph 50, provides a very useful checklist of factors to consider when determining if a document is a private record within the meaning of s. 278.1:

[50] The following factors gleaned from the jurisprudence concerning privacy principles more generally, though by no means exhaustive, are relevant to a consideration of whether a particular record in the possession of the accused is a private record within the meaning of s. 278.1:

(1) Is it a record akin to those enumerated in the section?

(2) Is the information in the record akin to that which one might reasonably expect to find in the records that are enumerated in the section?

(3) How was the information obtained? Was it voluntarily surrendered or surreptitiously recorded in the form of a permanent record?

(4) For what purpose was the information provided to the accused?

(5) Was the communication public or semi-public or between two private individuals?

(6) Was there an express desire that the communication remain private or can such a desire be reasonably inferred from all of the circumstances?

(7) How many other people were privy to the communication?

(8) If it is not sexual history is it something akin to sexual history?

(9) If it is not akin to sexual history, is it the kind of information that has historically, and improperly, been used to discredit sexual assault complainants? Such as their street-involved status or (non-sexual) mistreatment by others?

(10) Is it information that might be considered biographical core information as that concept is explained in Plant, Mills and all subsequent case law?

(11) In relation to photos/videos where were they taken? By whom were they taken? For what purpose were they taken and how did the accused end up with them?

(12) For social media postings, what is the nature of the social media application in question? Is it designed for public sharing of information or immediate destruction of the communication once sent?

(13) Is the social media posting of a child or an adult?

(14) What is the nature of the relationship between the parties that are communicating? For example, is it a relationship of trust or authority?

(15) Whose account was the information take from and what are the privacy settings?

(16) Did the accused gain access to the account through fraud or deceit?

[23] The pre-June 16 communications, as described on this application, have sufficient hallmarks of being private records, as defined by s. 278.1, that I would require a screening process prior to their use at trial.

[24] I agree with the conclusion of Justice MacNaughton of the British Columbia Supreme Court in R. v. R.M.R. that digital communications between two individuals in a relationship that discuss intimate aspects of their relationship are presumptively private records in which it can be inferred there is a reasonable expectation of privacy. I agree with the Crown's submission that the description given by counsel respecting the pre-June 16 communications in this case probably brings them within the scope of the screening provisions and leave would be required prior to using them at trial.

[25] I also agree with the Crown's position that the description given on this application of those communications would also make them subject to the 276-screening requirement simply by virtue of being communications "of a sexual nature" and not forming part of the subject matter of the charge. They are, by statute, extrinsic sexual activity. Having those materials presented in the public forum of a criminal trial without leave of the Court would violate the intent of Parliament as expressed in these screening provisions. They are presumptively inadmissible, and leave will be required prior to adducing them at trial.

The "June 16th Communications"

[26] The communications that are labelled as the "June 16th communications", as described by counsel, do appear to form part of the subject matter of the allegations and so are not caught by s. 276. Being part of the subject matter of the charge they are, by definition, not extrinsic sexual history. They are not subject to the 276-screening regime.

[27] It is my present view that the ultimate issue of whether these communications are sufficiently intertwined or proximate to the subject matter of the charge to be considered part of the subject matter of the charge, may only be determined by reviewing them and assessing them in the context of the evidence at trial. At present I am prepared to assume that they are not subject to the s. 276 screening regime.

[28] However, bearing in mind my characterization of the earlier pre-June 16th communications as being messages in which, by their nature, the complainant may well have a reasonable expectation of privacy, the June 16 communications would also appear to be private "records" within the 278.1 definition. As such they would, on that basis, engage the mandatory private records screening regime and require leave prior to adducing them at trial.

The Timing of the Application to Adduce Materials

[29] There is no doubt that these new provisions in the Criminal Code impact very significantly on the fair trial rights of the accused. This aspect of the statutory scheme was very apparent to Parliament when it was enacted. The impact is significant enough that the constitutional validity of the scheme has been seriously questioned (see R. v. A.M.). In order to balance the objectives of the legislation with the constitutional rights of the accused the Court has a duty to minimize the offending impact on the fair trial rights of the accused.

[30] Justice Breen's approach in R. v. A.R.S. persuades me that in order to preserve the fair rights of the accused it is best to defer any obligation on the accused to produce the materials for review until such time as the evidence at trial triggers the necessity to do so. The contextual assistance of the evidence at trial may be necessary to provide an adequate foundation to determine the relevance and probative value of the materials. I am also concerned that the premature production of potential impeachment materials may very well neutralize their effectiveness in cross-examination and significantly impair the fair trial rights of the accused.

[31] Forcing premature disclosure of impeachment materials to both the Crown and the complainant creates obvious, significant and potentially unnecessary negative impact on the ability of the accused to properly defend the case. When weighed against the logistical challenges that mid-trial applications may cause, the fair trial rights of the accused should clearly be given priority.

[32] For this reason, I am not directing that an application for leave to adduce the materials be brought in advance of trial. I will defer to counsel for the accused as to when and if she wishes to adduce the material and seek the required leave of the Court to do so.

Consideration of the Role of the Complainant

[33] The new regime to screen both private records and s. 276 materials grants significant participation rights to the complainant. Rights that are entirely unique to sexual assault trials. Rights that only arise once a hearing of the issues is triggered.

[34] In this case the complainant is aware generally that there are communications in the possession of the accused in which she may have an expectation of privacy and which may require screening prior to their use at trial. I am told that counsel is on standby to act for the complainant should a hearing be triggered.

[35] Counsel for the accused has asked that I give direction restricting the scope of the participation of counsel for the complainant. I am not prepared to do that without input from counsel for the complainant.

[36] As requested through Crown counsel, I will sign an Order for funding for counsel for the complainant in anticipation of her involvement being necessary at some point in time.

[37] October 24 and 25, 2019 are days presently scheduled for this matter to continue. Counsel should consult and determine whether those dates will be used for an application to adduce any of these materials, or, if practical on such short notice, to commence the calling of evidence on the trial proper.

Released: October 25, 2019

Signed: "Justice W. B. Horkins"