DATE: September 16, 2021 ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
M.F. Applicant
Before: Justice John North Reasons released on September 16, 2021
Counsel: Lu Zhao, counsel for the Respondent John Raftery, counsel for the Applicant
NORTH J.:
INTRODUCTION
[1] The issue on this application is whether electronic communications that are in the possession of the Applicant fall within the definition of “record” in s. 278.1 of the Criminal Code. If the electronic communications are records under s. 278.1, the Applicant would be required to bring a s. 278.92 application to adduce this evidence at trial. If the electronic communications are not records under s. 278.1, they can be adduced without the need for a s. 278.92 application.
BACKGROUND
[2] The Applicant is charged with twelve offences, including one count of sexual assault, three counts of assault and one count of unlawful confinement. The alleged offences occurred between June 19, 2020 and December 3, 2020. The alleged sexual assault, assault and unlawful confinement involve the same Complainant. The Applicant and the Complainant were at one time involved in an intimate relationship.
[3] The Applicant is in possession of:
(i) text messages between the Applicant and the Complainant, and photographs sent electronically by the Complainant to the Applicant; and
(ii) text messages between the Complainant and a third party, R.M.
[4] The text messages and photographs were sent between June 19, 2020 and January 4, 2021.
[5] A four-day trial is scheduled to commence on September 28, 2021.
PROCEDURE
[6] The Applicant was opposed to providing the Crown with the electronic communications at this stage of the proceeding.
[7] In R. v. A.M. 2020 ONSC 1846, at para. 70, Christie J. provided guidance on the procedure that should be used on an application to determine whether material that is in the possession of the defence regarding a complainant, which it seeks to adduce, falls within the definition of a “record” under s. 278.1. In that case, the applicant was not required to disclose electronic communications to the Crown on the application. However, the applicant’s counsel was ordered to provide a summary of the electronic communications to the Crown and the Court. See also R. v. W.M., 2019 ONSC 6535, at paras. 11 to 28.
[8] In A.M., at para. 70 (6), Christie J. concluded that the Court may “supplement the summary if it feels that some further information is required to allow the Crown to make submissions.”
[9] In this case, counsel for the Applicant provided the Court with a copy of the text messages and photographs. The Applicant’s counsel also provided the Court and Crown counsel with a summary of the material. The text messages between the Applicant and the Complainant and the photographs were marked as Exhibit One. The text messages between the Complainant and R.M. were marked as Exhibit Two. Exhibits One and Two were sealed. The summary of the material that was prepared by the Applicant’s counsel was marked as Exhibit Three. After the summary was given to Crown counsel, I provided Crown counsel with some additional information about the contents of Exhibits One and Two.
THE ELECTRONIC COMMUNICATIONS
[10] The following is the summary prepared by the Applicant’s counsel of the contents of Exhibit One:
“[Exhibit One] contains text message conversations between M.F. and [the Complainant], and photographs featuring [the Complainant], none of which is sexually explicit, and none of which reveals intimate personal details. These text messages do not include medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journal diaries, nor do they contain personal information the production or disclosure of which is protected by any other Act of Parliament, or a provincial legislature. These messages were in the possession of M.F., as he was one of the participants to the conversation.”
[11] The following is the summary prepared by the Applicant’s counsel of the contents of Exhibit Two:
“[Exhibit Two] contains text messages between [the Complainant] and R.M, a friend of M.F.. They are in reverse chronological order. They track a conversation between R.M. and [the Complainant] about M.F., starting at or about 20 September, and progressing to or after January 2. These text messages do not include medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journal diaries, nor do they contain personal information the production or disclosure of which is protected by any other Act of Parliament, or a provincial legislature. These messages were in the possession of a friend of M.F., and were brought to the attention of counsel for M.F.”
[12] I concluded that the Crown should be provided with the following additional information:
- Exhibit One contains eleven pages of text messages between the Applicant and the Complainant. Counsel for the Applicant advised that these text messages were sent between June 19, 2020 and December 26, 2020. [1]
- Exhibit One also contains ten photographs. Counsel for the Applicant advised that the Complainant sent the photographs (electronically) to the Applicant. The photographs were sent between September and December, 2020.
- Some of the text messages in Exhibit One revealed personal information about the Complainant.
- On page nine of Exhibit One, there was a short exchange which may constitute “sexual activity” under s. 276(4) of the Criminal Code. The last photograph may also constitute “sexual activity” involving the Complainant. Counsel for the Applicant took the position that the last photograph may “contemplate” sexual activity.
- There was no discussion in the text messages between the Applicant and the Complainant about whether the text messages would be shared with other people.
- Exhibit Two contains 57 pages of text messages between the Complainant and R.M.
- Counsel for the Applicant advised that R.M. is a friend of the Applicant.
- In a text message exchange in Exhibit Two, the Complainant made a comment which suggested that she did not want R.M. to disclose some information to anyone else. However, she immediately followed that comment with a statement that supports the conclusion she had not been serious about her request to keep that part of their conversation private.
- The Complainant and R.M.’s text message communications in Exhibit Two included discussions about the Applicant’s well-being and character.
- Based on the context of some of the text messages, it is reasonable to infer the Complainant understood that R.M. would be sharing certain information about their communications with the Applicant.
- R.M. kept the text messages in Exhibit Two on his computer. According to counsel for the Applicant, R.M. provided these text messages to the Applicant’s counsel because he had concerns that “improper representations” had been made about the Applicant.
THE APPLICABLE LAW
[13] Section 278.92 came into force in December, 2018. This provision was part of a “package of amendments consolidating the procedure for the admission of extrinsic ‘sexual activity’ and private records”: R. v. Mai, 2019 ONSC 6691, at para. 2. As a result of these amendments, “the admission of both private records and evidence of sexual activity is now governed by the same two step procedure”: Mai, at para. 2.
[14] Section 278.92 provides that 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 at a trial involving one of the enumerated offences unless 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. Sexual assault is one of the enumerated offences.
[15] Section 278.1 provides that “record”, for the purposes of sections 278.2 to 278.92, 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.” [Emphasis added.]
[16] The specified categories in s. 278.1 are merely “examples of types of records that fall into the broader category of ‘any form of record that contains personal information for which there is a reasonable expectation of privacy’”: R. v. B.H., 2020 ONSC 4533, at para. 12.
[17] In this case, the electronic communications do not fall into any of the specific categories enumerated in s. 278.1.
[18] If a record does not contain personal information there is no need to consider its context as it “falls outside the scope of the regime”: Mai, at para. 21; A.M., at para. 72.
[19] Section 278.1 defines a record as anything that contains personal information for which there is a reasonable expectation of privacy. Therefore, a court must determine whether a complainant has a reasonable expectation of privacy at the time the application is made, not whether he or she had a reasonable expectation of privacy in the past: W.M., at para. 30.
[20] Whether a person has a reasonable expectation of privacy in a particular situation requires “a contextual assessment that takes into account the totality of the circumstances”: R. v. Jarvis, 2019 SCC 10, at para. 60. It is a fact-specific inquiry: A.M., 2020 ONSC 1846, at para. 88.
[21] Most cases that have considered whether a person has a reasonable expectation of privacy are “in the context of s. 8 of the Charter”: A.M., at para. 73; B.H., at para. 13. Section 8 is not engaged in this case. While the s. 8 jurisprudence may provide some guidance, “different considerations come into play when the information is in the hands of a private citizen who is defending himself against criminal charges”: W.M., at para. 38; A.M., at para. 73.
[22] In R. v. Marakah, 2017 SCC 59, the Court concluded, at para. 4, 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…”.
[23] At para. 41 of Marakah, McLachlin C.J. stated as follows:
“…a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where ‘technological reality’ deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny.”
[24] Text messages will not always attract a reasonable expectation of privacy for the purposes of s. 8: Marakah, at para. 4.
[25] In R. v. M.S., 2019 ONCJ 670, Chapman J. considered whether Parliament meant to include digital communications between an accused and the complainant in its definition of “record” under s. 278.1. Chapman J. concluded, at para. 72, that “even non-sexual digital communications between the complainant and the accused that potentially involve biographical core information or sensitive information or are of an intimate nature are also potentially records that require vetting.”
[26] The fact that a person shares information with someone else is not determinative of the whether there is a reasonable expectation of privacy. However, it is a relevant consideration in the analysis: W.M., at para. 32. In some circumstances, it may be an important factor in assessing whether or not a complainant has a reasonable expectation of privacy. (outside the special relationships enumerated in s. 278.1): Mai, at paras. 23-26.
[27] A number of factors have been considered potentially important when determining whether a complainant has a reasonable expectations of privacy in electronic communications for the purpose of s. 278.1, including: the content of the communications; the manner in which the communications were sent; who has control over content; the nature of the relationship between the accused and the complainant; how the communications were obtained; the purpose of the communications; whether there was an expressed wish for privacy; access by others to the communications; and any policy implications of finding that a complainant either did or did not have a reasonable expectation of privacy: B.H., at paras. 22-27; W.M., at paras. 41-55.
[28] In Mai, at para. 20, Roberts J. concluded that the factors which are relevant to an assessment of whether a record contains information for which there is a reasonable expectation of privacy can be divided into two broad categories: (i) the nature of the information contained in the record; and (ii) the context in which the record was created and obtained by the accused. Roberts J. observed, at para. 20, that the nature of the information “will in many, if not most, cases be determinative of the threshold question.” At para. 22, Roberts J. concluded that the following factors may be relevant in assessing the “context in which the record was created and obtained by the accused”:
- The relationship between the parties to the record (new friends, casual friends, good friends, old friends, family members, lovers…);
- The manner of dissemination of the record (is it an open platform a secure platform…);
- The scope of dissemination of the record (does it involve two people, a closed group of intimates, a larger group, a shifting group…).
ANALYSIS
[29] The following factors are relevant to the analysis in this case.
(i) The Nature of the Relationships Between: 1) the Complainant and the Applicant; and 2) the Complainant and R.M.
[30] At one time, the Applicant and the Complainant were involved in an intimate relationship. However, their relationship has changed. They are now in an adversarial relationship, as she is the complainant on a number of the charges that are before the court. That is a relevant consideration in determining whether the Complainant has a reasonable expectation of privacy: W.M., at para. 50; B.H., at para. 22. I have taken it into account when considering the totality of circumstances.
[31] The Applicant and R.M. are friends. The Complainant knew that when she and R.M. exchanged the text messages. It appears that the Complainant and R.M. do not have a close relationship. This weakens a claim that the Complainant’s had an expectation R.M. would keep the content of their text messages private.
(ii) How the Communications Were Obtained
[32] The Applicant did not obtain any of the electronic communications through fraud or deceit.
[33] The Applicant kept the text messages that he and the Complainant exchanged. He also kept the photos that the Applicant sent to him.
[34] R.M. provided the Applicant’s counsel with a copy of the text messages that he and the Complainant exchanged.
(iii) The Content of the Communications
[35] The ability of a judge who is considering an application of this nature to comment on the content of the communications in question without divulging them is limited: B.H., at para. 24.
[36] Exhibits One and Two contain some personal information about the Complainant.
[37] Most of the text messages in Exhibit One between the Applicant and the Complainant are about their relationship. During one exchange, the Complainant makes statements that could be viewed as very personal. The text messages which revealed the most personal information about the Complainant are proximate to the dates of the some of the alleged offences.
[38] Most of the text messages between the Complainant and R.M. were about the Applicant.
(iv) Expressed Wish for Privacy
[39] Given the personal nature of some of the text messages between the Applicant and the Complainant, it is possible that the Complainant thought (at the time they were sent) they would remain private. However, there was no express request or agreement that their communications would remain private.
[40] Other than the one statement made by the Complainant (which I have concluded was not a serious request to keep information private), I see nothing in the text messages between the Complainant and R.M. that suggests the Complainant expected that R.M. would not disclose their conversations to other people.
(v) Access by Others
[41] No one other than the Applicant and the Complainant would have been privy to the content of the electronic communications in Exhibit One at the time they were sent. Likewise, no one other than the Complainant and R.M. would have been privy to the content of the electronic communications in Exhibit Two at the time they were sent.
[42] The fact that the Complainant chose to share the information contained in the text messages with the Applicant is a relevant factor in the analysis: Mai, at para. 25. It may not be reasonable for the Complainant to expect that the Applicant would keep private their electronic communications (which are not of a sexual nature) that might advance the Applicant’s defence: W.M., at para. 50.
[43] The Complainant would also have known that there was a risk that R.M. would provide the electronic communications in Exhibit Two to the Applicant.
[44] As previously stated, the risk that an electronic communication could be disclosed to a third party does not, on its own, determine whether a person had a reasonable expectation of privacy, but it is a relevant factor in the analysis: Mai, at para. 23. In this case, given the relationships between the Applicant, the Complainant and R.M., I view this as a relatively important factor.
(iv) Policy Implications
[45] In these circumstances, I see no basis to conclude a finding the Complainant did not have a reasonable expectation of privacy in the text messages or photographs will discourage reporting by sexual assault victims or have other negative policy implications.
CONCLUSION
[46] In my view, paragraphs four to six on page nine of Exhibit One and the last photograph of Exhibit One fall within the definition of “sexual activity”. Therefore, they are subject to the s. 276 regime.
[47] Given all of the circumstances, including the content of the electronic communications and the nature of the relationships between the Applicant, the Complainant and R.M., the Complainant does not have a reasonable expectation of privacy in the text messages and photographs. Therefore, the contents of Exhibits One and Two do not fall within the definition of “record” in s. 278.1. An application pursuant to ss. 278.92 will not be necessary to adduce the communications and photographs in Exhibits One and Two.
[48] I have not ruled on the actual admissibility of any of these items. I have not determined whether any of these text messages or photographs are relevant to an issue at trial, whether the probative value of any of these items is substantially outweighed by its prejudicial effect or if the proposed use of any of these items engages s. 276 (other than the items I mentioned in para. 46). The defence will not be permitted at trial to use any of these items to suggest any kind of sexual purpose or behaviour by the Complainant. Using the items in this manner would require a s. 276 application.
NORTH J.
[1] The copies of the electronic communications provided to the Court were not paginated. To ensure that an appropriate record has been created, I have made copies of Exhibits One and Two. I paginated the copies. I placed the paginated copies into the sealed envelopes with the original copies.