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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 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 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: July 22, 2024
BETWEEN:
HIS MAJESTY THE KING
— AND —
A.J.
Before: Justice Allison Dellandrea
Submissions heard on: July 3, 2024 Ruling released: July 22, 2024
Counsel: Ms. N. Jaswal....................................................................................... counsel for the Crown Ms. J. Kirby..................................................................................................... counsel for A.J.
DELLANDREA J.:
[1] A.J. is charged with one count of sexual assault against the complainant M.S. alleged to have occurred on November 1, 2020.
Overview of Allegations
[2] The complainant M.S. was a family friend and former employee of the Applicant at his telecommunications company. She alleges that on November 1, 2020, while he was giving her a ride home from a party in his vehicle, the applicant put his hand in her shirt and touched her breast without her consent. The complainant made this allegation to police in September 29, 2022.
[3] In the days preceding the complainant’s disclosure of the instant allegation against the applicant, the complainant had herself been charged with multiple criminal offences following a complaint of domestic violence made by her husband. After having been charged with these offences, the complainant attended the police station and made what the police characterized as “counter-allegations” against her husband, in which she named the applicant as a witness. In the same police interview, M.S. related the sexual assault allegation against the applicant from two years earlier.
[4] At the conclusion of the investigation prompted by M.S.’ allegations, her husband was not charged. The applicant A.J. was charged with sexual assault.
Motion for Directions
[5] The applicant A.J. seeks to adduce at trial communications in his possession which relate to the complainant. Counsel for the applicant brought a pre-trial motion seeking a ruling from the court that the materials in the possession of the defence fall outside the ambit of the protections of s. 278.92 private records regime, on the basis that they are not “records” as defined by s. 278.1 of the Criminal Code.
[6] This application was argued in camera following the procedure outlined by Justice Christie in R. v. A.M., 2020 ONSC 1846 and adopted by Justice Jones in R. v. C.T., 2023 ONCJ 124 and R. v. Flaumenbaum, 2023 ONCJ 474. A publication ban was imposed and the impugned material was provided to the court in a sealed envelope which was made an exhibit.
[7] The defence materials were not provided to the Crown. Rather, the Crown received the Applicant’s description of the proposed materials within the Application record, which had been organized by the Applicant into various categories with general descriptions of their contents.
[8] The Applicant identified five sets of communications and documents in their possession for which directions were sought. Broadly stated, these categories of proposed evidence were:
(1) Communications between the applicant and the complainant, discussing various aspects of their employment;
(2) Group Communications between the complainant and her co-workers, which include some photos of individuals at social engagements in public settings;
(3) Communications between third parties in which the complainant was discussed;
(4) A group message which included both the applicant, the complainant and a number of their mutual colleagues in which office dynamics are discussed and some social photographs in public settings are exchanged;
(5) The criminal record of the complainant and occurrence reports underlying her previous convictions, which were ordered be provided to the Applicant as first-party disclosure by Justice Baltman of the Superior Court of Justice on June 6, 2023.
Procedure on Motion
[9] Upon receipt of the Applicant’s motion record, Ms. Jaswal immediately conceded that the materials in Category 5 (matters which were the subject of a first-party disclosure order) were not “records” pursuant to s. 278.1.
[10] The parties were in agreement that there is no automatic right for a complainant to participate in a motion for directions, given the Supreme Court’s dicta in [J.J.][1] that the motion is an exercise of the court’s trial management power in which the complainant’s permission to participate is discretionary.
[11] Even where an application is brought pursuant to the procedures outlines in ss. 278.92-94 of the Criminal Code, the Applicant is required to provide application materials to the prosecutor and the court. While the complainant is entitled to a “general description [2]” of the application at Stage 1, they have no participatory rights at the first hearing. It is only in circumstances when a Stage 2 hearing is ordered following judicial review of the materials that the complainant has standing to review the application record, and a right to meaningful participation in the second stage hearing.
[12] As Justice Jones astutely observed in [C.T.][3]: “[n]one of that reasoning applies to a motion for directions because the very purpose of the motion is to determine if the complainant’s privacy rights are engaged at all”.
[13] After reviewing the application materials and hearing from the parties, I determined that a judicial summary of their contents was sufficient to permit the Crown to make informed submissions on the motion.
[14] After hearing submissions from Ms. Kirby on the proposed judicial summary, the summary was amplified to include additional detail with respect to the identities of the communicants as well as the timeframe and nature of the various categories of communications.
[15] Upon receiving the enhanced judicial summary, Ms. Jaswal very responsibly conceded the absence of a reasonable expectation of privacy with respect to categories 3 (communications between third parties) and 4 (mundane group chats between a number of co-workers, including the applicant and the complainant).
[16] With respect to the remaining two categories of communications, the Crown invited me to consider whether any references to the complainant’s employment or marriage could be characterized as touching on her “biographical core” such that they should proceed through the screening regime.
Analysis – Section 278.92
[17] Sections 278.92-94 prescribes the procedure for the Court’s adjudication on the admissibility of private records relating to the complainant which are in the possession of the accused in sexual assault cases. The provisions are designed to balance the rights and interests of the accused with those of the complainant, and the public. The protection of the dignity, equality and privacy interests of the complainant are central concerns within this balancing.
[18] A “record” is defined in s. 278.1 as “any form of record which 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”.
[19] None of the proposed materials in this case are among the enumerated categories of records outlined in s. 278.1.
[20] The Court in [J.J.][4] emphasized that a complainant has a recognized privacy interest in non-enumerated records where they contain “highly sensitive information…the disclosure of which can impact on their dignity”. The protection afforded by the records screening regime does not apply to all records of a ‘personal’ nature relating to the complainant, but rather to only those which contain information of such an “intimate and highly personal nature that is integral to the complainant’s overall physical, psychological and emotional well-being [5]”.
[21] Applying these principles to the proposed records in this case, I conclude that the complainant does not have a reasonable expectation of privacy in any of the proposed records.
[22] In reaching this conclusion, I assumed that if M.S. had participated in the motion she would likely have asserted a subjective expectation of privacy in the contents of the impugned records. I assumed for the purpose of my analysis that she did not wish for any of the messages in which she participated to be revealed to anyone other than the intended recipients.
[23] The question of whether a person’s subjectively held expectation of privacy is an objectively reasonable one is a different matter. Consideration of an objectively reasonable expectation of privacy in the context of the 278.92 regime involves consideration of the nature of the communication and/or images, the context in which they were created, and the balancing of interests mandated by the screening regime: see J.J. at para. 46.
[24] The text messages in this case are akin to the type of record identified by the Court in [J.J.][4] as containing “mundane information such as general emotional states, everyday occurrences or general biographical core information [that would] not give rise to a reasonable expectation of privacy”: see para. 56.
[25] None of the proposed records include reference to “highly sensitive”, “intimate” or “highly personal” information for which the complainant would have a reasonable expectation of privacy. Rather, the records are akin to every-day exchanges about general biographical and social information for which there is no such expectation.
[26] The motion for directions by the applicant is granted. The proposed materials are not “records” pursuant to s. 278.1 and are available to the defence for their potential use at trial, subject of course to the rules of admissibility governing the proceeding.
[27] The defence materials filed on this motion will remain under seal.
Released: July 22, 2024 Signed: Justice A. Dellandrea
[1]: J.J., 2022 SCC 20, at paras. 103-15. (https://www.canlii.org/en/ca/scc/doc/2022/2022scc20/2022scc20.html#par103) [2]: J.J., at para 92. (https://www.canlii.org/en/ca/scc/doc/2022/2022scc20/2022scc20.html#par92) [3]: C.T., at para 13. (https://www.canlii.org/en/on/oncj/doc/2023/2023oncj124/2023oncj124.html#par13) [4]: J.J. at para. 45. (https://www.canlii.org/en/ca/scc/doc/2022/2022scc20/2022scc20.html#par45) [5]: J.J. at para 71. (https://www.canlii.org/en/ca/scc/doc/2022/2022scc20/2022scc20.html#par71)