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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 09 26 COURT FILE No.: Toronto 4810 998 23 48106049

BETWEEN:

HIS MAJESTY THE KING

— AND —

LUIS GORDONES

Before: Justice Christine Mainville

Ruling on Records for Purpose of s. 278.92 released on September 26, 2024

Counsel: Lu Zhao, counsel for the Crown Moshe Savitsky and Calvin Barry, counsel for the Applicant

Mainville J.:

[1] The Applicant, Mr. Gordones, is charged with one count of sexual assault on a former employee. The assault is alleged to have taken place at the Applicant and the complainant’s workplace on May 18, 2023.

[2] Mr. Gordones seeks the court’s authorization to make use of two sets of documents at his upcoming trial: text messages between him and the complainant, and an application and reply filed by the complainant with the Human Rights Tribunal. He accordingly filed an application under ss. 278.92 - 278.94 of the Criminal Code.

[3] The Crown conceded that, based on their content, the text messages do not constitute a record under the legislative framework that applies, and as such do not need to be the subject of this records application.

[4] I requested submissions on whether the Human Rights Tribunal documents are records under s. 278.1 of the Criminal Code. The Crown contends that they are, whereas the defence now contends that they are not.

Legislative Framework

[5] Section 278.92(2)(b) provides that a record as defined in s. 278.1 is inadmissible unless the judge determines, in accordance with the procedures set out in sections 278.93 and 278.94, “that 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.”

[6] Section 278.1 provides the following definition of “record”:

For the purposes of sections 278.2 to 278.92, 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, but does not include records made by persons responsible for the investigation or prosecution of the offence.

[7] This definition sets out a non-exhaustive list of records that generally contain personal information for which there is a reasonable expectation of privacy. As for non-enumerated records, the Supreme Court in R. v. J.J., 2022 SCC 28, at para. 42, explained what might constitute such a record for the purpose of this statutory regime:

Ultimately, we conclude that a non-enumerated record will only be captured by s. 278.1, in the context of the record screening regime, if the record contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity.

[8] The Court also made clear, at para. 46, that its interpretation of what constitutes a reasonable expectation of privacy in the context of s. 278.1 is specific to that section and is distinct from how the concept applies in the s. 8 Charter jurisprudence. It did accept two principles from the s. 8 jurisprudence, that is that:

(1) the person claiming a privacy right must have a subjective expectation of privacy that is objectively reasonable in the circumstances …; and (2) a reasonable expectation of privacy only engages legally recognized privacy interests… Both of these principles establish that the privacy interests at issue must meet a high threshold. (J.J., at para. 47)

[9] However, the Court did not accept the content-neutral nature of the analysis, which is a feature of the s. 8 reasonable expectation of privacy jurisprudence: J.J., at para. 48. Accordingly, it found that “[r]ecords do not attract a reasonable expectation of privacy simply because of the medium used to convey them. The more important consideration is the sensitivity of the information contained in the record.”: J.J., at para. 49.

[10] On this point, the Court at para. 45 described when “legally recognized privacy interests” will be engaged:

Complainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity. As this Court has observed in the past, the “dissemination of highly sensitive personal information” can result “not just in discomfort or embarrassment, but in an affront to the affected person’s dignity” (Sherman Estate v. Donovan, 2021 SCC 25, at para. 7). To reach the level of an impact on dignity, an intrusion on informational privacy must “transcen[d] personal inconvenience by reason of the highly sensitive nature of the information that might be revealed” …

[11] Finally, the Court observed that “the privacy interests in a record being produced to the accused are different from the privacy interests at play when the accused seeks to have the record admitted as evidence in court”: J.J., at para. 50 (emphasis in original).

Facts

[12] In addition to the allegations made to the police in this case, the complainant filed an application against her former employer – the Applicant’s business – under s. 34(1) of the Human Rights Code with the Human Rights Tribunal. The application cites the company as an “Organization Respondent”, and names the Applicant as its owner.

[13] The complaint to the Human Rights Tribunal sets out allegations against the Applicant, including substantially the same allegations as were made to the police and that are the subject of this criminal matter.

[14] Pursuant to the Tribunal’s usual procedure, the application was forwarded to the Applicant for his response. The accused filed a response with the Tribunal, which was in turn provided to the complainant. She then had an opportunity to respond by way of reply.

[15] The defence wishes to use certain statements contained in the complainant’s application and reply at trial and filed these materials for adjudication under s. 278.92 of the Criminal Code. For the sake of completeness and to provide context for the reply, the Crown requested the entirety of the record before the Tribunal – that is, the Applicant’s response to the application. The defence provided this additional material to the Crown and the Court but does not seek to rely on it at trial.

[16] Further, the defence is prepared to redact those portions of the application and reply that set out some of the complainant’s biographical information such as her address, as well as certain passages where the complainant references her personal health information, as these are of no import to the defence. The Crown and defence agreed that they would file redacted materials and the screening pursuant to the s. 278.92 regime is proceeding on that basis.

[17] The Crown filed an affidavit from the Officer in Charge of this matter recounting information the Officer obtained from the Tribunal regarding its process. The Officer explains that, according to the Tribunal representative he spoke to, the Tribunal will review applications they receive, and Tribunal correspondence is copied to all parties. The “material and application will all be disclosed to the respondent” – that is, in the case at bar, the Applicant.

[18] The affidavit goes on to state that the material and application “will NOT be disclosed to any third party. Once the case is concluded, the information will be posted on Canadian Legal Information Institute I. But only when concluded.”

[19] This is hardly clear. It suggests that the application filed by the complainant will itself be posted to, once the matter is over. I doubt this is the case, although it is clear that the Tribunal issues public decisions on its matters and that these may and generally will include information regarding the applications and responses filed, and indeed set out some of the content of those materials. This is presumably what the affidavit is referring to.

[20] The affidavit contains no information about whether the material is otherwise accessible to the public, even if it is not distributed to people beyond the respondent.

[21] In any event, I can take judicial notice of the fact that the Human Rights Tribunal is a public adjudicative body, and that its hearings and decisions are accordingly presumed to be public.

Analysis

[22] The Court in J.J. provided a framework for assessing whether material qualifies as a non-enumerated record that must be vetted under the record screening regime. I should consider both the content and context of the record: J.J., at para. 55.

[23] While the s. 278.1 analysis will often be content-focused, it is appropriate in this case to address the context component of the analysis first, as it is in my view conclusive.

[24] The application and reply in this case are filings with a public adjudicative body. The open court principle applies to adjudicative administrative tribunals: Toronto Star v. AG Ontario, 2018 ONSC 2586. The Human Rights Tribunal falls into this category.

[25] Indeed, as explained in Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, at para. 53:

It appears that, whatever other distinctions may exist between different kinds of administrative tribunals, the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle. It is the fact of adjudicating competing interests that imposes the duty of fairness and impartiality which gave rise to the description of some tribunals as quasi-judicial. In Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, such tribunals were described as adjudicative tribunals. The characteristic that gives rise to the application of the open court principle to an administrative tribunal is the presence of an adversarial process, as opposed to the formalities by which that adversarial process is conducted. In short, the open court principle applies to adjudicative tribunals.

[26] Accordingly, the Human Rights Tribunal is subject to the open court principle.

[27] I struggle with the suggestion that a filing could attract a reasonable expectation of privacy when it was intentionally filed in a public forum. The documents are or are very much akin to public filings or pleadings made in the context of judicial or quasi-judicial proceedings.

[28] In its opening paragraph relating to the open court principle representing a central feature of a liberal democracy, the Supreme Court in Sherman Estate v. Donovan, 2021 SCC 25, explained that “[a]s a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable”: para. 1 (emphasis added).

[29] J.J. directs judges, when assessing context, to “apply a normative and common-sense approach. Whether a communication or document is a ‘record that contains personal information for which there is a reasonable expectation of privacy’ must reflect societal understandings about the fundamental right to be free from unwanted intrusion into our personal lives”: para. 57.

[30] Open courts and tribunals are a cornerstone of our democracy and the epitome of transparency and openness. There could hardly be an objectively reasonable expectation of privacy in records created for and purposely filed in a public forum.

[31] Pursuant to J.J., at paras. 58-60, three non-exhaustive factors should be considered in assessing context:

(1) the reason why the complainant shared the private information in question;

(2) the relationship between the complainant and the person with whom the information was shared; and

(3) where the record was shared and how it was created or obtained.

[32] It is this last factor that is in my view determinative.

[33] The documents were not produced or created in the private domain (e.g., one-on-one communications between the complainant and another or others), nor were they surreptitiously obtained by the Applicant. These were never private records in the first place. Rather, they were created to initiate a public proceeding and they were purposely filed with a public adjudicative body. They were then disclosed to the Applicant pursuant to the Tribunal’s usual procedure and with the complainant’s knowledge.

[34] Ultimately, “[e]xpectations of privacy are contextual and must be assessed in light of the “totality of the circumstances”: J.J., at para. 76. I therefore consider the other two factors relating to context.

[35] On the first point, the complainant shared this information to pursue a complaint against her former employer before the Human Rights Tribunal. The Crown places significant emphasis on this factor, arguing that the complainant could still have reasonably expected that the documents would not be used in the context of the criminal proceedings, and that she cannot thereby be said to have waived any privacy interest in the documents.

[36] Certainly, “a person may divulge information to an individual or organization with the expectation that it be used only for a specific purpose”: J.J., at para. 58. However, the Crown’s submission overlooks the fact that this principle is intended to afford some protection where disclosure is made to a person or body, but privacy overall is maintained. It finds no application when divulging information in a public filing with a body subject to the open court principle.

[37] Indeed, I fail to see how a person could file something in a public forum then claim privacy over it in another public forum (criminal court).

[38] Moreover, it was known that the information would not be private vis-à-vis the Applicant – indeed it would necessarily be shared with him. While it would be provided to him for the purpose of responding to the allegations in the context of the Human Rights proceedings, the allegations are directly related to those before this court. The Applicant is already taken to be aware of them, by virtue of the criminal proceedings. Further, the fact of the application and any of its contents would be expected to feature in the hearing of the allegations and any ensuing decision by the Tribunal. It would thereby be made public.

[39] As explained in J.J., at para. 76, “[w]hether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society”. In my view, these norms and society’s general expectations as it relates to public filings align with the open court principle.

[40] Turning to the second contextual factor to be considered under J.J., the relationship between the complainant and the Tribunal, it is not one of trust or authority, nor is it one of confidence. Rather, the information was shared with the Tribunal for the purpose of it publicly adjudicating the complaint.

[41] While the Tribunal has rules about when and to whom it will disclose certain materials, at the end of the day, they are not private.

[42] While they may not be immediately made public, they are created for the purpose of a public process and are expected to ultimately become publicly accessible. Such records are less likely to attract a reasonable expectation of privacy: J.J., at para. 60.

[43] There is a lack of clarity in the information obtained by the police and filed by the Crown on the public nature of the information. But even this evidence makes clear that the information will eventually be made public. There is no indication of steps taken in this case to restrict access to the proceedings or any material filed in that forum.

[44] Moreover, not only would it have been reasonably expected in this case that the Tribunal would follow its usual process, but the complainant in fact received, during that process, the Applicant’s response to her filing, and she had an opportunity to respond to it. She is thus fully aware that the Applicant has these documents, and she had to know that that was what was going to happen when she created and filed her materials. There was to be no privacy as between them.

[45] I recognize that the fact of an adversarial relationship between the Applicant and the complainant, as reflected not only by these criminal proceedings but the Tribunal proceedings, does not serve to undermine any reasonable expectation of privacy in the records: J.J., at para. 62; R. v. T.A., 2020 ONSC 2613, at paras. 26-31.

[46] But here, the subject documents are ones created as part of that adversarial relationship. They are not private communications or other personal records provided to the Tribunal for the purpose of substantiating the complaint or for some other purpose. They are the complaint itself, that is, a second account of the very same allegations made in these criminal proceedings, made to a public tribunal. And in respect of which it was known that the Applicant would have an opportunity to review and respond.

[47] The question is whether any subjective expectation of privacy in those documents would be objectively reasonable in the circumstances. In my view, it would not.

[48] To use an analogy, these documents are similar to applications and affidavits filed in the family law context. The defence more commonly seeks to use such documents in criminal proceedings and the courts to date have held that these materials are not captured by the s. 278.92 regime: see, for e.g. R. v. D.M., 2022 ONSC 6699, at paras. 8 and 9; R. v. C.N., 2023 ABKB 302 at para. 84 (with the exception of some portions of family court documents that contained s. 276 material, which is not the case here); and R. v. S., 2015 ONSC 3728, at paras. 16-18.

[49] As the Superior Court stated in D.M., at para. 6:

To ascertain whether a document is a record, one must examine the privacy interests of a complainant against the competing factors outlined in s. 278.92(3). If the information does not meaningfully engage these factors, it is a clear indication that the document in question is not a record. It is presumed that a certain level of privacy must be in issue, such that only the records that could cause “potential prejudice to the complainant’s personal dignity” will be of concern. The right of the accused to make full answer and defence will prevail over the discomfort that may be suffered by a complainant from intrusions of privacy that do not strike at the core of that person’s dignity. (Emphasis added. See also J.J., at para. 52.)

[50] Like in D.M., I do not believe the Tribunal documents in this case meaningfully engage the factors outlined in s. 278.92(3). As stated in J.J., at para. 52, “this would be a clear indication that the document is not a record at all.”

[51] In D.M., the court observed that “the affidavits contain some limited personal information of the complainant, as is typical in family law proceedings. None of the affidavits contain any evidence of sexual activity, other than the sexual activity that forms the subject matter of the charges”: para. 8.

[52] That is also the case here.

[53] Indeed, and in the event that the act of commencing proceedings before an adjudicative tribunal and filing materials containing pleadings to initiate this process doesn’t extinguish the reasonable expectation of privacy in the filing, I note that the contents of the documents here do not “contain information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being” and that “will have implications for the complainant’s dignity”: J.J., at paras. 54-55.

[54] Considering the agreed-upon redactions, I do not assess the content of the Human Rights Tribunal application and reply as containing information akin to that contained in the types of records enumerated in s. 278.1.

[55] The only information the Crown points to in support of its affirmation that “[i]t is clear that private information is contained in these applications”, is the “medical information and other biographical core information”: Crown factum, at paras. 15 and 21. That is, the information the defence concedes can be redacted. The Crown does not point to any other specific information in the documents that could be said to meet the definition of personal information set out in J.J., despite the fact that the sensitivity of the information contained in the record is typically the more important consideration in this analysis: J.J., at para. 49.

[56] Certainly, the materials recount the complainant’s allegations of sexual assault that are the subject matter of this trial. In some contexts, evidence relating to the subject-matter of the allegations will constitute records under s. 278.1. As stated by the Crown in its factum, relying on J.J. at paras. 65-67, 71, “[e]xplicit communications that relate to the subject matter of the charge, as well as sexual videos or photographs that relate to the subject matter of the charge, will often attract a reasonable expectation of privacy”.

[57] That is not akin to the contents of the documents in this case. The application filed with the Tribunal is simply a separate account by the complainant of the same allegations made to the police – but directed at a different adjudicative body. The application and reply recount effectively the same allegations that are before this court. They do not contain any evidence of those allegations, such as photos, videos, or communications between the complainant and the Applicant or any other person relating to the subject matter of the allegations. Nor do they contain confidences regarding the subject matter of the allegations. Rather, they contain an account of the allegations to an adjudicative body.

[58] I have also considered the more fulsome list of factors set out in R. v. M. S., 2019 ONCJ 670, at para. 50, that are frequently considered in this analysis. Almost none appear to apply and where they do, only marginally so.

[59] In the totality of these circumstances and considering the normative and common-sense approach mandated by J.J., the complainant cannot be said to have a reasonable expectation of privacy in these documents. Nor do the documents contain highly personal information as defined in J.J., considering the redactions to be applied.

[60] No application under s. 278.92 is therefore required and the defence is permitted to make use of the redacted Tribunal documents at trial.

Released: September 26, 2024 Signed: Justice Mainville