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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
DATE: 2023 04 11 COURT FILE: Toronto 20-75000600
BETWEEN:
HIS MAJESTY THE KING
— AND —
RICHARD FLAUMENBAUM
Ruling on Motion for Direction
Before Justice Brock Jones
Written Reasons released on April 11, 2023
Counsel: T. Schreiter........................................................................................... counsel for the Crown S. Hebscher............................................................................. counsel for R. Flaumenbaum
Jones J.:
Introduction and Overview of the Evidence
[1] Richard Flaumenbaum is charged with committing a sexual assault on Ms. J. L. They were in an intimate partner relationship at the time of the alleged offences. She alleges that she was the victim of multiple incidents of sexual violence committed by Mr. Flaumenbaum between May 31 and December 16, 2020.
[2] Crown and defence counsel provided me with comprehensive written submissions and supporting materials. They agreed I could decide the motion on the basis of the written record unless I required further oral submissions in open court. The Supreme Court of Canada in R. v. J.J., 2022 SCC 28, held that motions of this nature can and should be decided in writing if the assigned judge deems it appropriate: see para. 27.
[3] I want to begin my judgment today by thanking them for their excellent materials and their willingness to proceed in this manner. This courthouse is struggling with a serious backlog of cases and limited court resources. It is incumbent upon all justice system participants to embrace alternative approaches to deciding pre-trial motions whenever possible to ensure that court time is dedicated to those hearings that truly require it.
[4] I was provided with the following background information by counsel for the defence. The parties met on an online dating service in February 2020 and began a physically intimate relationship in May 2020. They communicated with each other regularly through text messages in 2020.
[5] Mr. Hebscher seeks to introduce these text messages at the trial. He submits they are relevant to the court’s assessment of the complainant’s credibility as they may provide some evidence that challenges her description of the parties’ relationship. The text messages were sent and received just after some of the allegations and also around the time of other allegations. She has accused Mr. Flaumenbaum of being abusive and controlling. Mr. Hebscher submits that these text messages reflect an entirely different nature of their relationship.
[6] The messages were provided to the court under seal and a summary of their contents was provided to Crown counsel only. I adopted the same procedure I applied in R. v. C.T., 2023 ONCJ 124, modelled upon the procedure created by Justice Christie of the Superior Court of Justice in R. v. A.M., 2020 ONSC 1846, at para. 70.
[7] Mr. Hebscher submits that the messages do not qualify as “records” for the purposes of Criminal Code sections 278.92-94. He seeks a ruling of the court that they do not engage a reasonable expectation of privacy and therefore no formal records application is required. At the trial, he intends to ask Ms. L. questions about them in cross-examination and/or otherwise introduce them into evidence.
[8] Mr. Schreiter submits that since the complainant has not been served with the application nor allowed to appear and provide submissions, should the court be left with any ambiguity that the materials in question are “records” as contemplated by section 278.1, a stage 2 hearing is required. Since the records are text messages, he directed me to paras. 60-62 of J.J. where the majority of the Supreme Court expressly refused to categorically exclude text-based communications between the complainant and accused as records capable of having a reasonable expectation of privacy. While he has not been privy to the messages subject to this motion, based on the summary provided to him of their contents he takes the position that I should err on the side of caution regarding the complainant’s privacy rights.
Analysis
[9] Nearly all private communications between two persons in an intimate partner relationship will attract some degree of privacy. Personal messages of this nature are not intended to be shared with third parties or otherwise disclosed to an audience. Unsurprisingly, no third parties were part of the text message conversation between Mr. Flaumenbaum and Ms. L.
[10] As stated by the Ontario Court of Appeal in Elementary Teachers Federation of Ontario v. York Region District School Board (“YRDSB”), 2022 ONCA 476, at para. 52., “[m]any private conversations occur electronically rather than in person or by telephone, through email, texting, or similar means. The potential for personal information being revealed in such conversations is great.”
[11] Since Ms. L did not participate in this motion, I will assume she has a subjective expectation of privacy in the messages’ contents. I also assume she never wished the messages to be revealed to anyone other than their intended recipient, Mr. Flaumenbaum, and that she did not compromise their private nature.
[12] Whether or not that expectation of privacy is objectively reasonable is another matter. The text messages do not involve intimate matters. They involve discussions about daily activities including work, how they are feeling, where the parties might meet for dinner, or where they planned to take a trip together. Many contain emojis. In some of the messages, they refer to one another in affectionate terms and near the end of the message history they express their love for one another. There is one image of them together posing for a photograph.
[13] The Court of Appeal in YRDSB clarified that an objectively reasonable expectation of privacy may attach to electronic messages even if the contents of those messages do not involve intimate matters or “biographical core information.” It is one factor that may be considered, but it is not a prerequisite for such a finding: see para. 55; see also the Supreme Court of Canada’s decision in R. v. A.M., 2008 SCC 19, at para. 68.
[14] These rulings were issued in the context of an application made under section 8 of the Charter. While highly instructive, the Supreme Court held in J.J. that while reference to section 8 jurisprudence is helpful for foundational principles, what constitutes a reasonable expectation of privacy for the record screening regime found in Criminal Code section 278.1 must be interpreted in a manner specific to the purposes of that section and the associated record screening regime: see para. 46.
[15] In C.T., I addressed the nature of these provisions in detail at paras. 49-52. My conclusions were that for the record screening regime to be engaged, the records in question must engage a threshold level of privacy. Disclosure of the records would have to meaningfully impact the complainant’s dignity, through the release of “highly sensitive” information.
[16] The text messages in this case are best characterized as the type of record identified by the Supreme Court in J.J. which contains “mundane information such as general emotional states, everyday occurrences or general biographical information [that would] not give rise to a reasonable expectation of privacy”: see para. 56.
[17] The defence motion for directions is granted. The text messages do not engage the record screening regime. Mr. Hebscher may seek to introduce these text messages at the trial without the need for an application under sections 278.92-94. Whether or not they are relevant will be determined as the trial unfolds. Mr. Hebscher also bears the burden of authenticating the messages pursuant to section 31.1 of the Canada Evidence Act.
Released: April 11, 2023 Justice Brock Jones