WARNING

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: 2022 06 30 COURT FILE No.: 20-15003178 Toronto Region – Old City Hall

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JEHANGIR KHAN

Before: Justice H. Pringle

Reasons for Judgment released orally on March 2, 2021 Reasons for Judgment released in writing June 30, 2022

Counsel: Melissa Atkin....................................................................................... counsel for the Crown Rafik Kodsy................................................................................... counsel for the defendant

PRINGLE J.:

Ruling on Pretrial Motion for Directions: Section 278.1

Overview of the Application

[1] The applicant, Jehangir (Jay) Khan is charged with committing a sexual assault. He and the complainant, prior to this charge, were platonic friends. They communicated with one another through Instagram’s electronic messaging platform. All messages were non-sexual in nature.

[2] At trial, the applicant wishes to cross-examine the complainant on her messages [1] to the defendant. In a pretrial motion for directions, he sought an order that these texts were not “records” within the meaning of s. 278.1 of the Criminal Code.

[3] The Crown resisted this motion, arguing that a reasonable expectation of privacy attached to the texts. She properly underscored the historical mistreatment of complainants in sexual assault cases. The justice system’s failure to protect victims’ individual privacy and dignity has discouraged victims from reporting to police. Parliament, by enacting these sections, intended to protect complainants from unnecessary personal intrusion while in court.

[4] The salient issue was whether the communications attracted a reasonable expectation of privacy. If so, the application process in ss. 278.93 – 278.93 would be triggered.

[5] I concluded there was no objectively reasonable expectation of privacy in the messages between the complainant and the applicant. No further defence application was required prior to trial.

Application Procedure

[6] Both parties, generally, agreed upon application [2] procedure. Where they differed, I adopted the procedure from R. v. W.M., 2019 ONSC 6535 and R. v. Crevier, 2015 ONCA 619.

[7] Firstly, the defence summarized message form and content for the Crown. I was given all messages the defence hoped to cross-examine upon. These were submitted as though they were under seal, although given the COVID pandemic they were provided electronically with use of a password to access them.

[8] Following review and submissions, I had several clarifying questions about the operation of the electronic messaging platform and message content. Answers were necessary to fully understand whether a reasonable expectation of privacy was present in some/all of the messages. Defence counsel answered all questions in writing [3].

[9] In large part, the messages were innocuous. At one point, proximate to the alleged offence date, the applicant and the complainant resolved a work-related dispute via text. Other than that, they used Instagram for friendly conversation and to make social plans. Where affectionate terms / emojis were used, defence counsel confirmed these were sent and received in the spirit of friendship only.

[10] However, one Instagram messaging exchange stood out from the rest. I was provided with two different versions of this conversation. Both versions took place on the alleged offence date. In one version, the complainant agreed to sell the defendant cocaine. In the other version, the cocaine trafficking conversation was missing.

[11] I was initially given no context about how or why the cocaine trafficking conversation was missing in that second version. However, there was an obvious inference that someone deleted it. This led to written questions and answers about how the Instagram messaging delete/recall function worked.

[12] Following this written exchange between myself and defence counsel, I produced an expanded judicial summary to the Crown:

• The messages were sent directly between Mr. Khan and the complainant.
• Nobody else was involved in the communications, subject to the hypothetical exception set out below.
• The communications do not fit into the definition of a “record” [4] in the Criminal Code.
• The communications are from electronic messaging platforms.
• The communications come from Mr. Khan’s device(s).
• The direct communications between Mr. Khan and the complainant do not contain any express or implicit request/suggestion that their direct messages to one another remain private.
• More specifically, the complainant did not ask Mr. Khan to delete any portion of their direct communications between each other. The complainant did not ask Mr. Khan not to share any of their direct communications.
• None of the messages contain information that could constitute other “sexual activity” under section 276.
• The message platform(s) used has the ability to broadcast a certain type of message to a wider audience, which then auto-deletes after a short period of time. Evidence of that specific type of message being broadcast, and then auto-deleted, is apparent in the chat history. The content of those broadcast messages is no longer visible in the chat history we have.
  • If the Crown wishes to argue if/how this additional information impacts reasonable expectation of privacy, two hypotheticals [5] can be argued: (i) the complainant has never asked for this specific type of broadcast message to be removed from wider view; (ii) the complainant did ask for some broadcast messages to be removed from wider view.
• The sender using this/these electronic platform(s) can recall their messages. If that occurs, the recipient’s chat history will not show the recalled message anymore. If the recipient did not read the recalled message before it was recalled, the recipient will be notified of the fact of the recall and content of the recalled message.
  • If the Crown wishes to argue if/how this additional information impacts reasonable expectation of privacy, two hypotheticals can be argued: (i) The complainant did not recall any messages she sent to the defendant; (ii) The complainant did recall some messages she sent to the defendant.

[13] After the summary was disclosed, both parties declined the opportunity to make further submissions. On March 2, 2021, I found the messages, without exception, did not meet the definition of “record” in s. 278.1. The pre-screening procedure in ss. 278.92 and 278.93 was not therefore triggered, and no further defence application was required.

[14] Because reasons would necessarily disclose the nature and content of the messages at issue, an oral decision was provided with written reasons to follow after trial. [6]

Reasonable Expectation of Privacy: Group #1

[15] The definition of record is “any form of record that contains personal information for which there is a reasonable expectation of privacy”. Section 278.1 contains a non-exhaustive list of records with a presumptive reasonable expectation of privacy:

medical, psychiatric, therapeutic, counseling, 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...

The texts in this case did not trigger the presumption. This, of course, did not end the analysis. All messages were to be assessed to determine if any one of them attracted a reasonable expectation of privacy.

[16] Text messages can, but do not always, attach to a reasonable expectation of privacy: R. v. Marakah, 2017 SCC 59, at para. 5 and 45. Reasonable expectation of privacy must be assessed on a case-by-case basis, on the totality of circumstances.

[17] In considering whether any of the complainant’s messages attracted a reasonable expectation of privacy, I adopted Davies J.’s interpretation and application of the relevant law in R. v. W.M., 2019 ONSC 6535, at paras. 40-41:

These cases all demonstrate that the determination of whether someone has a reasonable expectation of privacy is very fact specific. It is not based exclusively on a risk analysis. It is not based exclusively on who controls the information. It is a normative analysis that asks whether an independent, informed observer would think that Ms. M.-A. ought to have an expectation of privacy over the information, given the circumstances.

There are four factors that are most relevant to my assessment in this case:

• (a)the content of the messages;
• (b)the manner in which the messages were sent and who has control over them;
• (c)the nature of the relationship between W.M. and Ms. M.-A.; and
• (d)the policy implications of finding she does have a reasonable expectation of privacy.

[18] Applying these factors, I easily concluded that the complainant did not have a reasonable expectation of privacy in most of her messages to the applicant. The cocaine trafficking messages, and their apparent deletion, was less clear. My analysis thus separated the cocaine trafficking messages (group #2) from all others (group #1).

[19] Group #1 messages were all sent via the Instagram messaging platform. The applicant was the intended recipient. The complainant’s texts remained stored on the applicant’s phone after she sent them. The applicant and the complainant had both control over, and access to, these sent messages. While some videos they sent each other had also been posted to a wider audience as “Instagram stories”, most messages were direct one-on-one communications.

[20] The messages in group #1 did not suggest prior sexual activity. These messages were not sexual in nature. They were not romantic in nature. I could not discern how cross-examination on these texts could engage impermissible, offensive stereotypes. The messages were innocuous, containing discussions about event planning, work, school, socializing, and going to clubs.

[21] The content was typical of young people who socialize in the same general group and share some common interests. While this may be “personal” in the layperson’s sense of the term, I did not see any of the message content as striking at anyone’s intimate biographical core. Most of these messages were typical of information commonly shared by young people through social media.

[22] The complainant and the applicant had been platonic friends before the alleged offence date. The content of their messages reflected and reinforced this. While at one point the two resolved a dispute by text, this dispute was work-related in nature, not personal, and relevant because of its close proximity to the alleged offence date.

[23] I found that, if the complainant expected the applicant to keep “Group #1” messages private, this would be objectively unreasonable. My conclusion rested on a combination of factors.

[24] Firstly, there was nothing expressly or implicitly said or done about keeping the messages in Group #1 private. There was nothing about the nature of those messages to even suggest such an intent. There was nothing about the prior relationship between applicant and complainant to suggest such an intent.

[25] Secondly, even one-on-one text messages can be shown, forwarded, and recovered to and by others. The complainant knowingly shared control over her messages with the applicant. The applicant’s shared control of her texts, while not determinative, was a factor I considered: R. v. Marakah, 2017 SCC 59 at paras. 44-45.

[26] Finally, the nature of their current relationship, as complainant and defendant at trial, was a factor I took into account. As per R. v. W.M. supra, at para. 50:

Ms. M.-A. has made very serious allegations against W.M. They are now in an adversarial relationship. Just as it would not be reasonable for W.M. to expect Ms. M.-A. to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for Ms. M.-A. to expect that W.M. will continue to keep private, but not sexual electronic communications which might advance his defence. Again, the messages here do not constitute sexual activity and do not engage s. 276 of the Code. There is nothing about the content of the messages that would compromise Ms. M.-A.'s dignity or personal security if she were asked about them in cross-examination.

[27] In the totality of circumstances, I concluded that the “group #1” texts did not attract any reasonable expectation of privacy.

Reasonable Expectation of Privacy: Group #2

[1] Many factual underpinnings of Group #1 largely also applied to Group #2. Accordingly, paras. 19 through 26 above apply to this second group of texts.

[2] Two aspects, however, stood out as requiring a different analysis: (i) The message content was very different. In Group #2, the applicant and the complainant were engaging in the purchase and sale of cocaine on the alleged offence date; (ii) The complainant, at some unknown point after the drug trafficking messages were sent by both, tried to delete her side of the trafficking conversation.

[3] The group #2 messages, like group #1, were stored in the applicant’s phone. The subject matter, however, was much more private in nature. These messages were literal evidence of a crime. More specifically, they were evidence of the complainant and the applicant committing a crime together. This conversation was of a deeply private nature.

[4] The “twin myths” continued not to apply. But there was the hypothetical risk that a trier of fact would improperly link involvement with illegal drugs to the issue of consent, or to the likelihood of consent. I was confident experienced defence counsel would make no such suggestion to the witness, and that I would not engage in such impermissible reasoning. Still, the nature of these messages differed from innocuous chats about clubbing and work.

[5] In addition, the analysis of control differed from Group #1. The complainant initially shared control over these messages with the applicant. But at some point, she sought to change that. She, or someone on her behalf [7], deleted her side of this conversation. Clearly, the complainant later decided she no longer wanted the applicant to see, access, show, or use these specific messages.

[6] By recalling, or deleting, her side of Group #2, the complainant communicated her wish to revoke the applicant’s control over her side of those messages. In doing so, she clearly communicated her subjective expectation of privacy in them. This expectation, however, was not objectively reasonable.

[7] The nature of the messages differed significantly, given that they involved the sale of cocaine. The place where the messages were stored, including the applicant’s ability to make a permanent record of them (before they were deleted), remained the same.

[8] Control over the cocaine trafficking messages was given, and then essentially revoked. One logical inference was that control was revoked when the relationship between the two became adversarial in nature. This adversarial relationship, however, is a compelling factor militating against any objectively reasonable expectation of privacy: R. v. W.M. supra, at para. 50.

[9] To help the analysis of control in Group #2, I turned to R. v. Marakah supra. There, the Court assessed whether a person engaged in illegal activity, via text, had a reasonable expectation of privacy in his messages. Mr. Marakah had sent incriminating texts to his colleague in crime, Mr. Winchester. Police seized Winchester’s phone, saw Marakah’s texts, and charged him. The Supreme Court said, at paras. 42 and 45:

Even where "technological reality" (Cole, at para. 54) 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. Mr. Marakah shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.

I conclude that the risk that Mr. Winchester could have disclosed the text messages does not negate Mr. Marakah's control over the information contained therein. By choosing to send a text message by way of a private medium to a designated person, Mr. Marakah was exercising control over the electronic conversation. The risk that the recipient could have disclosed it, if he chose to, does not negate the reasonableness of Mr. Marakah's expectation of privacy against state intrusion.

[emphasis added]

[10] Therefore, relinquishing control to a friend does not mean control is relinquished for all purposes. This differs greatly from relinquishing control to the state. The state, in possession of incriminating messages can place the conversationalists in legal jeopardy. This was a risk that Marakah had not, by virtue of sharing control of the messages with Winchester, consented to.

[11] Here, the applicant proposed to cross-examine the complainant on her messages in court. This is not the same type of state intrusion that Marakah referred to. I appreciate that “the state” includes the court system, and that cross-examination can be an intrusive experience. But the complainant’s identity is protected by publication ban, and she will enjoy constitutional protection against incrimination while testifying. In assessing the question of control, I took this difference into account.

[12] Finally, as part of the totality of circumstances, I relied on the policy factors outlined by Davies J. in R. v. W.M. supra, at paras. 53 and 54:

Although the Supreme Court of Canada deliberately declined to rule on this issue in Reeves, it seems impractical and unworkable to require the state to obtain a warrant to take copies of messages a complainant sent to the accused if they corroborate her allegations. However, that may well be the result of a ruling that the sender of an electronic message always or usually retains a reasonable expectation that the recipient of the message will keep it private.

In addition, as set out above, interpreting the definition of "record" in an expansive manner to include any private communication between an accused and complainant may well infringe W.M.'s s. 7 rights. The Facebook messages are prior statements by the complainant that may well be inconsistent with her testimony at trial. Cross-examination witnesses on prior inconsistent statements is one of the most important means of testing their credibility and reliability. Requiring the defence to disclose prior statements which may be inconsistent with evidence given at trial before the witness testifies could seriously undermine the accused's rights under s. 7 of the Charter.

[13] Group #2 was a much closer call. But on the totality of circumstances, I concluded the “group #2” texts did not attract an objectively reasonable expectation of privacy.

Conclusion

[14] There was no objectively reasonable expectation of privacy in any of the complainant’s texts to the applicant. Accordingly, these messages were not “records” within the meaning of s. 278.1 of the Criminal Code, and no further defence application would be required prior to trial.

Released: June 30, 2022 Signed: Justice H. Pringle

Footnotes

[1] All messages were sent and received, directly to each other, via Instagram. For ease of reference, I refer to them as “messages” or “texts”.

[2] This procedure was loosely adopted from the Step Six procedure in R. v. Crevier, supra.

[3] These questions and answers are retained as part of the court record.

[4] Meaning the messages did not fall within the s. 278.1 enumerated list.

[5] Permitting argument on hypotheticals was derived from R. v. Crevier, supra at paras. 72 and 77.

[6] Following trial, Mr. Khan was acquitted.

[7] For the purpose of this judgment only, I referred to the complainant as being the person who recalled her message. This was based on the information tendered about the manner in which messages are recalled. It was assumed because it supports the complainant’s subjective expectation of privacy.