ONTARIO COURT OF JUSTICE

Date: 2020-08-26 Location: Newmarket

Between: Her Majesty the Queen — and — PVT

s. 278.92(1) Application – Ruling

Heard: 24 and 26 August, 2020 Delivered: 26 August, 2020

Counsel:

• Ms. Phyllis Castiglione – counsel for the Crown/Respondent
• Ms. Rita Levin – counsel for the Applicant/Defendant
• Ms. Cornelia Mazgarean – counsel for the Complainant

KENKEL J.:

Introduction

[1] The applicant is charged with sexual assault and uttering death threats in relation to his wife LT. During the course of divorce proceedings, LT served an affidavit on her husband PVT. The defence submits that the complainant's affidavit refers to text messages with her son that indicate an acknowledgement that these charges are false but that she is unable to recant because she fears prosecution. The defence applies to determine whether the text messages and the affidavit may be referred to at trial in cross-examination. The Crown and the complainant's counsel agree that the complainant's affidavit is a record that engages s. 278.92, but they submit that the inference from the messages suggested by the defence is speculative. They submit the defence has not shown that the messages have "significant probative value" as required in s. 278.92(2)(b).

The Video Conference Hearing

[2] The hearing of this application was conducted via Zoom videoconference on the consent of all parties. The hearing was "locked" and the public excluded pursuant to s. 278.94(1). The accused attended remotely and followed the proceedings with the assistance of a Vietnamese interpreter. The videoconference format worked well for this phase of the trial.

Analysis

[3] I agree with both parties that the text messages between the complainant and a third party (her son) contain personal information for which there is a reasonable expectation of privacy. The messages meet the definition of "record" in s. 278.1. The record is already in the hands of the defence so s. 278.92 is engaged. A hearing under s. 278.93 led to this admissibility hearing under s. 278.94.

[4] All such records are presumptively inadmissible – s. 278.92(2). In this application the burden is on the applicant to show on the balance of probabilities 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 – s. 278.92(2)(b). In making that determination, the court must take into account the eight factors set out in s. 278.92(3) and any other factor that the court considers relevant. At the conclusion of the hearing, the court must provide reasons for decision that meet the requirements of subsections 278.94(4)(a), (b) and (c).

[5] The central argument of the Crown and counsel for the complainant is that the text messages are not relevant to an issue at trial. The messages were exchanged over two days and the Crown submits there may be a different meaning other than the recantation suggested by the defence. The complainant's counsel also notes the context of the messages where the complainant was accused of lying and pressured to "tell the truth" about the criminal allegations.

[6] As is often the case, it's possible the words in the text messages might reasonably bear more than one meaning. That's not a bar to admissibility even under these provisions. The defence interpretation of these messages is grounded in the evidence and the context. It is not speculative or unfair. The messages showing possible recantation are plainly relevant to the central issue at trial and essential to the defendant's ability to make full answer and defence. The weight, if any, to be given to the evidence can only be determined at the conclusion of the trial in the context of all of the evidence.

[7] The complainant has a reasonable expectation of privacy in communication with a third party. That expectation of privacy is not extinguished simply because she chose to disclose that conversation during the course of family law proceedings.

[8] The text messages do not relate to sexual activity. They are not part of a therapeutic record. The messages are unique to the circumstances of this case. Admission of the messages would have no impact on society's interest in encouraging the reporting of sexual or domestic violence offences, and would not interfere with obtaining treatment and counselling for those who make such complaints. There's nothing about the record that could engage a discriminatory belief or biased thinking. The record may or may not lead to the impeachment of the complainant, but that is not the type of prejudice that is prohibited under ss. 278.92(3)(f), (g). The admission of the messages would have minimal impact on the complainant's personal security and privacy.

Conclusion

[9] The credibility of the complainant is the central issue at trial. I find the applicant has proved that the text messages are relevant to that issue and potentially have significant probative value. The ultimate value or weight to be given to the evidence cannot be determined at this stage. The applicant has shown that the evidence meets the criteria in s. 278.92(3) and the admission of the evidence would not lead to any prejudice to the complainant or the administration of justice.

[10] In this case some further direction as to the use of the admissible record is required. In particular, I agree with the Crown that it is important not to divert this trial into an examination of family law issues that are collateral to the case.

[11] There is a factual dispute in relation to the text messages as disclosed in the family court proceedings. The defendant alleges that only a portion of the messages was disclosed in a manner they say was misleading. The defence has tendered an affidavit from the son with a record of messages that the defence says is complete and in proper sequence. The defence submits that cross-examination beyond the alleged recantation is required as the theory of the defence is that the criminal charges were fabricated in response to family court proceedings, and the presentation of the messages in the affidavit were a similar attempt to gain further advantage in the family court.

[12] The Crown notes that there may be other explanations as to why the notes were set out that way in the affidavit, such as linking certain messages sent over two days. I agree with the Crown that the defence position on this point is speculative, but it remains a specific attack on the credibility of the witness directly related to the defence theory of the case and the issues at trial. In any event, cross-examination as to the sequence and meaning of the text messages will inevitably lead to some discussion as to why they were portrayed in a particular way in the affidavit. Cross-examination by the defence on the text message portion of the affidavit is not restricted to the one point of alleged recantation but may include the content and sequence of the messages and the reason they were set out in a particular way in the affidavit.

[13] It is plain that the defendant takes issue with many other things in the complainant's affidavit. Even where the core issue at trial is credibility, it is not open to the defence to impugn the credibility of a witness by contradicting her on matters which are collateral to the case – R v ARB, [1998] OJ No 3648 (CA), affirmed 2000 SCC 30. The use of the complainant's family law affidavit is restricted to the portion dealing with the text messages referred to above.

Publication Ban – s. 278.95

[14] A publication ban applies to the contents of the application, the evidence taken and the submissions made – s. 278.95(1). Private information and detail relating to the complainant and her communications has not been included in these reasons. Taking into account the result, the complainant's right of privacy and the interests of justice, this court orders that these reasons may be distributed to the parties and published – s. 278.95(1)(d)(i) and (ii).

Delivered: 26 August, 2020

Justice Joseph F. Kenkel