WARNING

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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

(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).

(2) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and

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

486.6 OFFENCE — (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 Information

Ontario Court of Justice

Date: 2020-07-08

Court File No.: Ottawa 19-DV4754

Between:

Her Majesty the Queen

— AND —

G.E.

Before: Justice P. K. Doody

Heard on: July 7, 2020

Trial Management Order No. 1 released on: July 8, 2020

Counsel

Robert Thomson — counsel for the Crown

Dominic Lamb and Jonathan Nadler — counsel for the defendant

Eric Granger — counsel for the complainant

Decision

DOODY J.:

Overview

[1] The defendant is charged with one count of sexual assault. Evidence in his trial is scheduled to commence August 11, 2020. The trial is scheduled to take 3 days to complete, finishing Thursday, August 13.

[2] A number of pre-trial motions have been brought, necessitating this trial management order. Although two days were set for pre-trial motions when the trial was scheduled, the first of those days could not proceed because the courts were only hearing urgent matters due to the pandemic. The second day of pre-trial motions was set for today. It became apparent, however, that the procedural issues arising from the pre-trial motions required a case management conference. This case illustrates the potential procedural complexity inherent in the trial of any sexual offence.

Applications Brought by the Defendant

[3] An application for the following relief has been brought by the defendant:

(a) to admit under s. 278.92 Snapchat messages in his possession;

(b) to determine whether certain text messages in his possession are "records" within the meaning of s. 278.1 and 278.92(1) – that is, records "relating to a complainant" which contain "personal information for which there is a reasonable expectation of privacy";

(c) to admit under s. 278.92 certain other text messages in his possession; and

(d) to admit under s. 276 evidence relating to other sexual activity of the complainant.

[4] The Crown takes the position that some of the Snapchat messages referred to in paragraph 3(a) are "other sexual activity" within the meaning of s. 276. As a result, the defence counsel has undertaken to bring an application to admit that evidence under s. 276 if it is "other sexual activity".

Crown Application and Procedural Framework

[5] Crown counsel has indicated that he will be bringing an application to admit evidence of other sexual activity of the complainant. That will require me to apply the common law principles in respect of admission of prior sexual activity evidence set out in R. v. Seaboyer, [1991] 2 S.C.R. 577 at pp. 633-36. (R. v. Barton, 2019 SCC 33). This is best done through a voir dire prior to trial. (R. v. Goldfinch, 2019 SCC 38 at para. 142, per Moldaver J. concurring in the result) It is prudent to consider both the Crown's proposed use of evidence and any challenges proposed by the defendant at the same time. As Karakatsanis J. wrote for the majority of the court in R. v. R.V., 2019 SCC 41 at para. 79:

A view of how both sides intend to use the evidence would allow trial judges to more accurately assess the impact of admitting such evidence and appropriately tailor the ways in which it may be adduced.

[6] Crown counsel is thus required to serve and file an application to admit this evidence to be heard at the same time as the defendant's applications, should they proceed to a hearing under s. 278.94.

Standing and Procedural Issues

[7] If the text messages referred to in paragraph 3(b) are "records" within the meaning of s. 278.1 and 278.92(1), the defendant has undertaken to bring an application to admit them into evidence in accordance with the procedure set out in sections 278.93 and 278.94, whether those records are "other sexual activity" or simply "records".

[8] The complainant has retained counsel, who took part in this case management conference. He wishes to take part in the issue to determine whether the text messages referred to in paragraph 3(b) are "records" within the meaning of s. 278.1 and 278.92. That requires a determination of whether the complainant has standing on the hearing to determine that issue. I must make that decision before I hear the parties on whether the documents in issue are "records".

[9] There is no procedure set out in the Criminal Code to make such a determination. Defence counsel has undertaken to file with the court sealed envelopes containing the actual text messages in issue. He has provided summaries of those messages to assist Crown counsel in making submissions on the issue, and the court in determining the issue. Crown counsel take the position that those summaries are inadequate. Some cases, such as R. v. A.M., 2020 ONSC 1846 and R. v. W.M., 2019 ONSC 6535, have held that it is appropriate, in some cases, for the judge to review the documents in issue and provide a more detailed summary to Crown counsel. I am required to determine the appropriate procedure and, if that procedure is appropriate, whether I should provide a more detailed summary. I must also make that decision before I hear the parties on whether the documents in issue are "records".

Two-Stage Admissibility Process

[10] The Criminal Code provides a two stage process for the determination of whether evidence of "records" or of "other sexual activity" may be admitted into evidence. The first stage is a hearing under s. 278.93 to determine whether the evidence is "capable of being admissible". If so, the matter proceeds to the second stage of a hearing under s. 278.94 to determine whether the evidence is admissible. While the Crown is prepared to consent to an order that some of the evidence at issue proceed to a s. 278.94 hearing, it is not prepared to do so for all the evidence in issue.

[11] At the first stage, the complainant does not have standing. At the second stage, however, she has the right to retain counsel and "appear and make submissions".

[12] A separate hearing is required to determine whether all the evidence in issue is "capable of being admissible" and thus should be examined in a second stage s. 278.94 hearing.

Cross-Examination Rights

[13] Evidence is required to be filed by the defendant at both stages. That evidence is subject to cross-examination. The defendant takes the position that the complainant is not entitled to cross-examine him on his affidavit at the second stage s. 278.94 hearing. The complainant takes the position that she is. I am required to determine this issue before the second stage s. 278.94 hearing begins.

Timeline and Scheduling

[14] There are 5 weeks between July 7, when this case management conference took place, and August 11, the first day scheduled for evidence in the trial.

Issues to be Determined

[15] I have determined that the issues can be divided into the following 7 groups:

(a) Whether the complainant has standing on the issue of whether the documents described in subparagraph 3(b) above are "records";

(b) The process to be followed in determining whether the documents described in subparagraph 3(b) above are "records", including whether defence counsel has adequately described the documents in issue and whether I should look at the documents and issue a more detailed description;

(c) Whether the complainant has the right to cross-examine the defendant on his affidavit during the second stage s. 278.94 hearing (should one be required);

(d) Whether the documents described in subparagraph 3(b) above are "records" within the meaning of s. 278.1 and 278.92(1);

(e) Whether any of the documents or evidence in issue are capable of being admissible as set out in s. 278.93(4) and a hearing should be held under s. 278.94;

(f) If a s. 278.94 hearing is ordered, whether any of the documents or evidence in issue is admissible under s. 276(2) or 278.92(2); and

(g) Whether the evidence of other sexual activity of the complainant sought to be led by the Crown is admissible.

Procedural Approach

[16] The parties suggested that all of these issues, save for the cross-examination of the defendant at the second stage s. 278.94 hearing (should one be required), be dealt with in writing. This suggestion was made in order to avoid using courtroom time and to expedite the process, in the hope of saving the presently scheduled trial dates. They also suggested that the cross-examination of the defendant on his affidavit during the second stage s. 278.94 hearing be done remotely, with the defendant and all counsel appearing by audio/video transmission. I agree with both those suggestions. They will allow the issues to be determined without the necessity, for the most part, of occupying any courtroom. Allowing the final stage of the process to occur by audio/video transmission will allow a courtroom to be used which has not yet been fitted out to comply with public health requirements needed to allow counsel and participants to enter the room. At the present time, there are only 4 such courtrooms available to the Ontario Court of Justice in Ottawa.

[17] I have decided, however, because of both the likelihood that I will have questions and scheduling necessity, that I will hear oral submissions after the defendant is cross-examined during the second stage s. 278.94 hearing. Crown counsel has indicated that he does not wish to cross-examine the defendant during the first stage s. 278.93 hearing.

[18] Crown counsel submitted that it would be inappropriate to require written submissions on the ultimate issue of whether the evidence should be admitted before the defendant had been cross-examined. I appreciate that position. It will affect the content of the written submissions. But one of the disadvantages of dealing with issues in writing is that it extends the time to complete the submission process. Fairness requires that the responding party see the moving party's submissions before responding. The moving party is entitled to a reply. I could not craft a timetable that allowed for all the issues to be dealt with and a decision made before the trial is scheduled to begin on August 11 without the process I have decided upon. I am satisfied that the opportunity to make oral submissions after hearing the cross-examination of the defendant will allow each party a fair hearing.

[19] I have also decided that, just as it is prudent to consider both the Crown application to admit evidence of other sexual activity together with a defence application to admit such evidence under s. 276, it would be prudent to consider all the defence applications to admit evidence of "records" within the meaning of s. 278.1 and 278.92(1) at the same time as both the Crown application and the defence s. 276 application. The test for admission of "records" is very similar to, but not exactly the same as, the test under s. 276 for admission of defence led evidence of other sexual activity (s. 276(2), and (3); s. 278.92(2) and (3)). Both those tests are very similar to the test set out in Seaboyer, which applies, along with s. 276(1), to Crown-led evidence of other sexual activity.

[20] The Crown is prepared to consent to an order under s. 278.93, the first stage of the admissibility analysis, allowing a hearing under s. 278.94, the second stage of the admissibility analysis, for some, but not all, of the evidence in issue. I have concluded that the appropriate course is to proceed through a first stage s. 278.93 hearing for all the evidence in issue. Crown counsel may indicate in his written materials that he consents to an order being granted to proceed to a s. 278.94 hearing for some of the evidence in issue. That will be helpful. But the concession must clearly identify, by page and tab number, the precise evidence that the consent relates to.

[21] The Notice of Application filed by the defendant is not as clear as it should be. The defendant needs to be very clear, with tab and page number, about what precise documents or portions of documents he seeks to have admitted in each category of his application.

Timetable and Process

[22] I have concluded that the issues will be dealt with in accordance with the timetable and process set out below.

[23] The defendant is to file and serve his application seeking a s. 278.93 hearing to have the Snapchat messages described in paragraph 3(a) above admitted under s. 276, if they do contain "other sexual activity" in accordance with s. 276, by 4:00 p.m. on Friday July 10, 2020.

[24] The Crown is to file and serve its application seeking admission of evidence of other sexual activity of the complainant by 4:00 p.m. on Monday July 13, 2020.

[25] The defendant is to file and serve its application seeking admission of the documents described in paragraph 3(b) above, should it be necessary, by 4:00 p.m. on Monday July 27, the day my decision will be released on the issue of whether those documents are "records" within the meaning of s. 278.1 and 278.92(1). The defendant agreed to this timetable. Crown counsel agreed that he would have an adequate opportunity to respond by Thursday, July 30.

[26] The timetable for each of the issues is set out below.

(a) Whether the complainant has standing on the issue of whether the documents described in paragraph 3(b) above are records

• Wednesday July 8 4:00 p.m. – Crown to serve and file submissions (complainant has already served her submissions)
• Thursday July 9 at 4:00 p.m. – Defence to serve and file its submission
• Friday July 10 at 4:00 p.m. – Crown and complainant to serve and file reply submissions, if any
• Monday July 13 at 4:00 p.m. – Decision to be released

(b) The process to be followed to determine whether the documents described in paragraph 3(b) above are records, including whether defence counsel has adequately described the documents in issue and whether I should look at the documents and issue a more detailed description

• Wednesday July 15 at 4:00 p.m. – Defence to serve and file submissions
• Thursday July 16 at 4:00 p.m. – Crown and, if standing granted, the complainant to serve and file submissions
• Friday July 17 at 4:00 p.m. – Defence to serve and file reply submissions, if any
• Monday July 20 at 4:00 p.m. – Decision to be released

(c) Whether the complainant has the right to cross-examine the defendant on his affidavit during the second stage s. 278.94 hearing (should one be required)

• Wednesday July 15 at 4:00 p.m. – Crown and complainant to serve and file submissions
• Thursday July 16 at 4:00 p.m. – Defence to serve and file submissions
• Friday July 17 at 4:00 p.m. – Crown and complainant to serve and file reply submissions, if any
• Monday July 20 at 4:00 p.m. – Decision to be released

(d) Whether the documents described in subparagraph 3(b) above are "records" within the meaning of s. 278.1 and 278.92(1)

• Wednesday July 22 at 4:00 p.m. – Defence to serve and file submissions
• Thursday July 23 at 4:00 p.m. – Crown and complainant (if granted standing) to serve and file submissions
• Friday July 24 at 4:00 p.m. – Defence to serve and file reply submissions, if any
• Monday July 27 at 4:00 p.m. – Decision to be released

(e) Whether any of the documents or evidence in issue are capable of being admissible as set out in s. 278.93(4) and a hearing should be held under s. 278.94

• Wednesday July 29 at 4:00 p.m. – Defence to serve and file submissions
• Thursday July 30 at 4:00 p.m. – Crown to serve and file submissions
• Friday July 31 at 4:00 p.m. – Defence to serve and file reply submissions, if any
• Tuesday August 4 at 4:00 p.m. – Decision to be released

(f) If a s. 278.94 hearing is ordered, whether any of the documents or evidence in issue is admissible under s. 276(2) or 278.92(2); and whether the evidence of other sexual activity of the complainant sought to be led by the Crown is admissible

• Wednesday August 5 at 4:00 p.m. – Defence to serve and file submissions in support of its applications to have evidence admitted either under s. 276 or s. 278.92 and Crown to serve and file submissions in support of its application to have evidence of other sexual activity of the complainant admitted
• Thursday August 6 at 4:00 p.m. – Defence and Crown to file submissions in response to each other's submissions and complainant to file submissions in response to both defence application and Crown application
• Friday August 7 at 9:00 a.m. – defendant to be cross-examined on his affidavit, and immediately thereafter oral submissions to be heard from all parties

Filing and Service Requirements

[27] All documents are to be served and filed in accordance with Rule 3.3(1), 3(2), and 5 of the Criminal Rules of the Ontario Court of Justice. Documents in criminal proceedings may be filed electronically by email in accordance with the "Notice to the Legal Profession and the Public Regarding the process of emailing documents at the Ontario Court of Justice". A link to that document can be found at the bottom of the page entitled "COVID-19 Notices and Updates (Updated July 6, 2020)" on the Ontario Court of Justice website. In addition, all documents to be served and filed should be emailed directly to me to ensure that I receive them promptly.

[28] I have not yet received confirmation that a courtroom will be available for the virtual hearing on July 7. If not, changes will have to be made. The parties are to appear before me on July 15 at 9:00 am in courtroom 6, by audio/video transmission. Any issues with the timetable can be addressed at that time.

Released: July 8, 2020

Signed: Justice P. K. Doody