WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse­quences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 11 24 COURT FILE No.: Halton Info # 1211-998-20-Y38-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.D. (a young person)

Before Justice Scott Latimer Heard on November 3, 2021 Reasons for Decision released on November 24, 2021

Counsel: Carly Eastwood................................................................................... counsel for the Crown Lindsay Board................................................................................................ counsel for J.D. Daniel Brown .................................................................................................. counsel for J.D.

Reasons for Decision

LATIMER J.:

[1] This ruling concerns the constitutionality of the recently enacted statutory scheme for the introduction of records in the possession of the defence in a criminal trial. It is submitted that the current definition of a “record” under these provisions is overly broad and unfairly renders electronic disclosure, and other text-based communications in the applicant’s possession, presumptively inadmissible. The forced disclosure of this material, to the Crown and to the complainant, and the complainant’s wide-ranging participation in a subsequent hearing focused on the admissibility of these records, will render this trial unfair and a violation of the applicant’s ss. 7 and 11(d) Charter rights.

[2] This application, like many other similar applications occurring now across Canada, arises in unsettled times. There is significant judicial debate regarding many of the procedural aspects related to these hearings, for example:

(1) What constitutes a “record” for s. 278.92 Code purposes?

(2) Should notice of the application occur pre-trial or mid-trial?

(3) Is there a screening mechanism for determining whether material in the defence possession meets this statutory definition? If yes, is the complainant entitled to notice and participatory rights in such a proceeding?

(4) What precise participatory rights does the complainant possess at the s. 278.94 hearing?

[3] Unsurprisingly, different judges have come to different conclusions on these procedural questions. What this means practically, however, is that the same issues are being approached differently, depending on the particular trial judge involved. This is less than ideal but will no doubt continue until appellate guidance is obtained. [1]

[4] Without some certainty on procedure, however, it is difficult to properly assess the constitutional questions raised in this application. For example, the greater degree of participation a complainant is afforded – e.g. , the ability to cross-examine the applicant and adduce additional evidence – the more constitutionally vulnerable the provisions become. Put another way, without knowing the particulars of the terrain, it is difficult to know whether forcing the applicant to travel it is unfair.

[5] For this reason, I propose to begin this ruling by setting out the procedural approach I intend to enforce in this matter. Having done so, I will then assess whether that approach is constitutional. I am able to do so because of the evidentiary record adduced in this case and the helpful submissions of both Ms. Eastwood and Ms. Board. [2]

[6] For the reasons that follow, I make the following determinations:

(1) The electronic disclosure provided to the applicant by the Crown Attorney’s Office (the text messages between the complainant and her mother, the digital contents of her phone, and the message between the applicant and the complainant post-allegation) are not caught by the s. 278.92 Code exclusionary regime.

(2) Any electronic, text-based conversations [3] in the applicant’s possession, proximate to these allegations, are not “records” for s. 278.92 purposes, provided they do not contain content that would trigger s. 276(1).

(3) The complainant is entitled, pursuant to s. 278.94(2), to appear at any future hearing into either prior sexual activity (s.276) or records (s.278.92) – either personally or represented by counsel – but such an appearance will be limited to the right to make submissions only, consistent with the wording of s. 278.94(2). The complainant’s counsel will not be permitted to cross-examine witnesses or otherwise adduce evidence.

(4) The right to make meaningful submissions includes the right to obtain a copy of the application materials. Complainant’s counsel will receive a copy of the application record in order to properly make submissions.

(5) These provisions, interpreted in this manner, do not violate the Charter.

I. THE RELEVANT EVIDENTIARY RECORD

[7] The applicant is a young person charged with sexual assault. He and the complainant were friends. On January 3, 2020, it is alleged that he sexually assaulted her on two occasions over one evening, while she was staying over at his house.

[8] The applicant was arrested and subsequently appeared in youth justice court. During the case management process, he received electronic disclosure from the Crown Attorney’s office relating to material downloaded from the complainant’s phone.

[9] Prior to disclosing this material, the Crown appropriately obtained the complainant’s consent. Evidence has been adduced before me on this motion documenting the complainant’s consent to have her “entire phone” provided to the applicant in disclosure. Messages between the complainant and the applicant, however, were not located on the phone, as they had previously been deleted by the complainant. It is my understanding that she advised the police of this fact prior to handing over her phone. Forensic efforts to recover the messages failed. However, the applicant has maintained possession of his copy of these communications and wishes to potentially rely upon them at trial.

[10] Ms. Board, on behalf of the applicant, identified four “buckets of evidence” that would potentially – depending on my interpretation of what is a “record” – be subject to the s. 278.92 exclusionary regime. They are:

(1) Messages between the complainant and her mother

(2) Data recovered from her phone

(3) A message between the applicant and the complainant that pre-dated the allegations, and

(4) Additional messages between the applicant and complainant proximate to January 3, 2020 – the evening of the criminal allegation.

[11] Buckets #1-3 are the electronic material provided in disclosure with the complainant’s consent. Bucket #4 is different, as it relates to records that have never been in the state’s possession.

II. ANALYSIS

(1) Material provided by the Crown pursuant to s. 278.2(2) is not a “record” for s. 278.92 purposes

[12] As I said at the outset, defining what is a “record” for s. 278.92 purposes assists in focusing this constitutional challenge. The applicant’s position is that none of this material should be subject to s. 278.92 presumptive exclusionary rule, especially buckets #1-3, which contain material that was intentionally provided to him with the complainant’s explicit consent. The Crown, however, takes the position that s.278.92 mandates an independent judicial assessment, separate and apart from what s. 278.2(2) requires. While the state provided the applicant with this material, that fact is said to be irrelevant for s. 278.92 purposes as the material is now in the “possession or control of the accused”.

[13] This particular issue was recently before Justice Stribopoulos of the Superior Court of Justice, in R. v. McFarlane, 2020 ONSC 5194, and can easily be resolved. Having read his reasons, I can advise that I find them compelling and readily adopt His Honour’s reasoning. I apply it to the facts before me. Buckets #1-3, having been provided to the defence via the Mills -informed disclosure process, are not “records” in the applicant’s possession or control. They are not subject to s. 278.92 of the Code. [4]

(2) The electronic messages possessed by the applicant in this case do not meet the definition of a “record” for s. 278.92 purposes

[14] In my view, the relevance of the complainant’s consent extends to Bucket #4. She has consented to the applicant receiving the entirety of her phone’s contents. One message between her and the applicant remained; the rest had been deleted and were unable to be forensically recovered.

[15] The complainant’s willingness to allow the applicant to have the entirety of her phone download is relevant, at minimum, to her subjective expectation of privacy regarding electronic communications between her and the applicant, proximate to the date of this sexual assault allegation. I find that, in these circumstances, such communications do not meet the definition of “personal information for which there is a reasonable expectation of privacy”. I rely upon the following factors in coming to this conclusion:

(1) There is no valid distinction between what has previously been consented to and what remains in the defence possession. The complainant, while aware that she had deleted these messages, would also have been aware that the police would try and recover them. While that forensic process failed, the messages independently exist in the applicant’s possession. I simply cannot see a meaningful difference between the Bucket #4 communications and what has already been willingly disclosed. It all relates to the same circumstances.

(2) More generally, I do not accept that electronic conversations of this kind – between an accused and a complainant and not involving sexual content that would trigger s. 276(1) – meet the statutory definition of a “record” for s. 278.92 purposes. I say so for interpretive, policy and contextual reasons.

First, from an interpretive perspective, the words “personal information for which there is a reasonable expectation of privacy” do not exist in isolation; they reside next to a list of types of records that are statutorily included in the definition. While “includes” means these enumerations are non-exhaustive, they nevertheless provide interpretive assistance in determining what non-enumerated records will also attract a “reasonable expectation of privacy” for s. 278.92 purposes: R. v. Chisholm (2012), 2012 NBCA 79, 292 CCC (3d) 132 (NBCA), at paras. 12-13.

To refresh, s. 278.1 reads:

“…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…”

A review of the enumerated records demonstrates that they can be cleanly categorized as either: (1) records where a third party has a legal or professional privacy obligation, or (2) records created for the author’s personal, private use. A digital record of a communicative act to a person who does not have a legal or professional obligation to maintain the privacy of that communication does not fall into either category. While not determinative, this distinction is relevant to my conclusion that the records held by the applicant in this case are not caught by this definition of “record”. It is possible, however, that other communications, in other cases, may contain content that would commonly be found within one of the enumerated records: for example, a detailed medical discussion or a conversation about attempting suicide. While I do not understand the bucket #4 records in this case to contain such information, I do wish to make clear that such content may very well lead to a different interpretive conclusion.

(3) Next, policy. I do not accept that the Duarte prohibition on “risk analysis” applies in this context. When people communicate via digital devices, they are knowingly creating a record of that communication. It is not the state creating a record, it is the parties themselves – via the medium that they have chosen for their electronic conversation – creating a record that by default is maintained by most communication applications. Traditional forms of electronic communication, like email or text message, retain a copy of the conversation until and unless the possessor of the material decides to delete. In 2021, this is a well-known feature of modern life. When comparing an oral conversation to an electronic one, it can be seen that the lack of control associated with the latter carries with it a greater risk of reliable repetition and, therefore, makes an electronic conversation objectively less private.

The Supreme Court of Canada in Duarte was not concerned with private citizens choosing to divulge private conversations to others; they were concerned with state intrusion into private conversations, in particular an intrusion that included the creation of a permanent record of precisely what was said. [5] This was the “risk of a different order” that the Supreme Court found the lower court’s analysis did not address: Duarte, [1990] 1 SCR 30, at para. 44.

Modern electronic communication is meaningfully different. Communicators – in this case, the complainant – are aware their words are being digitally couriered to, and maintained by, their interlocutor’s device. In this way, electronic conversations are less private than their oral cousins, who maintain no such permanent record. But oral conversations – no matter how sensitive the content – are not caught by s. 278.92 of the Code. Only electronic conversations include something tangible that plausibly could be called a “record”. It is illogical to provide a greater degree of protection to a less private form of communication.

(4) Finally, the present context is also relevant. The applicant is on trial for a serious criminal allegation. It is unreasonable to expect him to keep private material in his possession that may be relevant to his defence. In this regard, I agree with Justice Davies’ comments in R. v. W.M., 2019 ONSC 6535, at para. 50, where she stated:

“Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now. [The complainant] has made very serious allegations against [the accused]. They are now in an adversarial relationship. Just as it would not be reasonable for [the accused] to expect [the complainant] to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for [the complainant] to expect that [the accused] will continue to keep private, but not sexual, electronic communications that might advance his defence.”

[16] Ultimately, assessing what material attracts a “reasonable expectation of privacy” is a contextual, normative inquiry grounded in a particular statutory provision. The application of this term differs between s.8 of the Charter and the ss. 278.1-278.91 (the Mills regime) and 278.92 Code contexts, as the purpose of those provisions also differ. Section 8 of the Charter protects against unreasonable intrusion by the state. Sections 278.1-278.91 provide a procedural regime to protect against unreasonable access to private records by an accused in a criminal proceeding: R. v. Mills, [1999] 3 SCR 668, at para. 99. Section 278.92 extends that protection to circumstances where the records are not in the hands of a third party, but instead already in the possession of the defence: see the Charter Statement accompanying Bill C-51, www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c51.html [6]

[17] In my view, for all of the reasons I have set out above, I do not believe the electronic communications in the applicant’s possession qualify as “records” for s. 278.92 purposes. The presumptive exclusion of communicative acts of a non-sexual nature, between the complainant and the accused in a criminal trial, does not further the valid interests that underlie s. 278.92 of the Code. These are not private records that have somehow come into an accused’s possession, like the situation in R. v. Shearing, 2002 SCC 58, [2002] 3 SCR 33: this is a private communication that the complainant chose to conduct over her digital device and, in so doing, chose to provide the applicant with a digital transcript of that conversation. Additionally, the complainant has waived any privacy interest in the associated contents of her digital device, which she willingly provided to the police. The records are admissible at trial, subject to the more traditional rules of evidence.

(3) Notice should generally occur pre-trial, unless valid circumstances exist that justify mid-trial notice

[18] Section 278.93(4) of the Code requires notice “at least seven days” before the hearing, “or any shorter interval that the judge… may allow in the interests of justice”. While trials run most efficiently when evidentiary issues are addressed in advance, the provision permits sufficient flexibility to ensure justice is done in circumstances where it is more appropriate to address the motion later in the trial proceedings.

(4) The current “motion for directions” procedure fairly permits pre-trial identification of whether documents in the possession of the defence qualify as “records” for s. 278.92 purposes

[19] I have adopted in previous cases, as have many other judges, an approach whereby the applicant files a sealed copy of the records while requesting a judicial assessment about whether they meet the s. 278.92 definition. This approach is not always required but is helpful when the applicant is uncertain about whether to file a motion, or simply wait and adduce the evidence at trial. The risk, of course, is if the applicant does nothing and the trial judge later determines that the materials are in fact “records”, the applicant may be denied an opportunity to petition for the materials’ admission.

[20] A benefit of these preliminary motions is that they identify, ahead of time, whether a s. 278.93 application will be required. Certain procedural protections have also been built in – the complainant does not have standing, nor does the respondent Crown receive a copy of the actual material. Instead, a summary is created to permit the Crown to make reasoned submissions on the motion: R. v. W.M., supra, at paras. 26-28.

(5) The complainant is permitted to appear and make submissions, but not to cross-examine or adduce evidence on the motion

[21] I am guided on this issue by the express language of s. 278.94: “the complainant is not a compellable witness at the hearing but may appear and make submissions”. This language is consistent with the approach historically applied to third-party records applications, which is to permit counsel to appear on the complainant’s behalf and make submissions, but no further. If Parliament had intended a broader participatory right in the s. 278.94 context, it would have said so: see R. v. B.G., 2021 ONSC 2299, at paras. 36-46.

[22] The complainant is, however, entitled to a copy of the application material at stage two of the proceeding, under s. 278.94. In the absence of the motion materials, the complainant’s participation would not be meaningful.

(6) The provisions are constitutional

[23] Having set out my understanding of the proper approach to these provisions, I can advise that I am not satisfied that they violate the applicant’s Charter rights. I come to this conclusion for the following reasons:

(1) The definition of “record” is the entry point to these provisions. I am not satisfied it is overly broad. This definition is almost identical to the one previously found constitutional in Mills, supra, at para. 99, in the third-party records context.

(2) While these motions should generally occur in advance of trial, s. 278.93(4) provides sufficient flexibility to permit mid-trial applications when justice requires.

(3) The complainant will not be exposed to material in the possession of the defence until just prior to the s. 278.94 hearing. Applicants who are unsure whether the material in their possession meets the definition of a “record” have access to a procedure that will provide an answer to that question, while at the same time preserving the element of surprise by prohibiting the Crown and the complainant from seeing the full record at the pre-trial “motion for directions” stage.

(4) Permitting the complainant participation in either a s. 276 or s. 278.94 hearing is a permissible balancing of an accused’s fair trial rights and a complainant’s right to dignity and privacy. The Crown’s perspective will not always align with that of the complainant; granting her independent standing appropriately ensures that her voice will always be heard during these types of evidentiary motion. I adopt Justice Harris’ review of this area in B.G., supra, at paras. 46-51.

(5) Finally, requiring detailed particulars in advance of trial is not unfair, nor does it unconstitutionally restrain the right to silence. The current provisions are not meaningfully different than those that were scrutinized in R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443, at paras. 47, 50-1, 55. The burden placed on the applicant by these new provisions is similarly constitutional.

III. DISPOSITION

[24] The constitutional challenge is dismissed. The records identified in the applicant’s materials and submissions are not caught by s. 278.92 of the Code. Any subsequent hearing in this case, under either these provisions or s. 276, will proceed in the manner set out in this ruling, subject to any clarification or amendment that may be required.

Released: November 24, 2021 Justice Scott Latimer

[1] I am aware the Supreme Court of Canada has recently reserved judgment on two cases that are expected to resolve many of these issues: R. v. J.J. (SCC File No. 39133) and R. v. A.S. (SCC File No. 39516).

[2] There has been, as well, a significant body of persuasive trial authority released on many of the issues raised in this motion. For that reason, at certain points in this ruling, instead of trying to reinvent the wheel, I will simply identify which precedents I adopt as correctly decided.

[3] Text messages, emails, or other electronic communications of a similar nature, subject to the caveat regarding content addressed in para. 15(2) below.

[4] Additionally, it is entirely possible that digital records obtained via a forensic extraction constitute “records made by persons responsible for the investigation or prosecution of the offence” and would therefore be excluded from the s. 278.1 definition. The records – the Cellebrite files – were created because of a police investigative procedure related to this precise criminal allegation. See, relatedly, R. v. K.T., 2020 ONCJ 496, at para. 62.

[5] “The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it… has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk …” (emphasis added) (p.44)

[6] “Existing sections 278.1 to 278.91 of the Criminal Code create a special procedure to be followed if the accused wishes to obtain access to the complainant’s private records. The procedure applies to records that contain personal information for which there is a reasonable expectation of privacy, such as personal journals, medical records or counselling records. … Currently, the regime only addresses the production, to the accused, of private records that are in the hands of the complainant or a third party. It does not address the admissibility of such records during the course of a trial, once they are in the possession of the accused. Clauses 22 through 25 would complement the existing regime by establishing a similar process to determine whether such records can be admitted by the accused as evidence in the trial.” (emphasis added)