Court File and Parties

Court File No.: CR-17-70000470-0000 Date: 2019-07-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Marcia Motayne, Defendant/Applicant

Counsel: Andrew Max, for the Crown Kevin Kaczmara and Solange Davis-Ramlochan, for the Defendant/Applicant

Heard: June 3, 2019, at Toronto, Ontario

Before: Michael G. Quigley J.

Reasons for Ruling

Re: Section 8 and 24(2) of the Charter

[1] Ms. Marcia Motayne was charged with one count of fraud under section 380(1)(a) of the Criminal Code. She was alleged to have defrauded New Visions Toronto of over $900,000 over a three-year period in her capacity as the Finance Director of the charity. New Visions is a charitable organization that provides housing and assisted living to persons with severe developmental disabilities.

[2] More specifically, the Crown alleges that Ms. Motayne used her position within the organization, specifically her control of the payroll for New Visions Toronto, to make electronic fund transfers from New Visions Toronto’s bank account to several bank accounts that were owned and operated by her, and that she then deployed for her own use and benefit.

[3] This case has been case managed by Justice McMahon since it came into Superior Court. He held several judicial pre-trial conferences with Ms. Motayne’s current and prior counsel leading up to this trial. Part of the outcome of that process, following a judicial pre-trial on April 23 and April 30 was defence counsel’s confirmation to McMahon J. that there would be no section 8 applications raised on any other disclosure matters. All of the bank records and business records were acknowledged at that time to be admissible as business records under section 30 of the Canada Evidence Act as business records made in the ordinary course.

[4] Justice McMahon’s written advice to the trial judge, at that time unassigned, was that all documentary evidence was in order and there would be no pre-trial motions or applications. The matter was to proceed before judge and jury and scheduled for three weeks.

[5] As such, it was surprising to me that at the commencement of the trial, before we proceeded to jury selection, Counsel for Ms. Motayne advised of a late breaking section 8 Charter challenge. There are two aspects to the section 8 Charter application brought by the defence related to the production at this trial of two items.

[6] The first is that the defendant is claimed to have a privacy interest in the copy of an invoice that was produced by the “Let It Rain” roofing company, an invoice which shows work done to the roof of her home at her address in Ajax which was allegedly paid for out of monies illegally transferred to her from New Visions Toronto. That invoice was attached to an affidavit of an employee of the Let It Rain roofing company, which swears to the truth of the invoice for roofing repairs that the company completed on Ms. Motayne’s home.

[7] The second was certain employee records that were contained within Ms. Motayne’s employee file and in which it is claimed she has a distinct core-related privacy interest. The allegedly impugned documentation is the contents of the information and employment sheet that Ms. Motayne filled out when she accepted her employment with New Visions Toronto in 2008. It included her name, address, e-mail address, SIN number, Drivers Licence number, phone number, and a voided cheque that was attached to the form directing her salary to be paid in future to the Scotiabank account reflected on that cheque.

[8] This application arises now because that information was attached to an affidavit of Andy Rotsma, the Executive Director of New Visions, who is the Crown’s principal witness in this case. It was provided to defence counsel on May 16. It was known that Mr. Rotsma would testify, as he has on earlier occasions, since he was subpoenaed on March 27, 2019. Nevertheless, this application is raised only today for the first time.

[9] Defence counsel claims to rely upon the decision of the Supreme Court of Canada in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, which it is claimed provides support for her position that she has a reasonable expectation of privacy that has not been extinguished simply because New Visions Toronto was already in possession of those documents in the ordinary course of her being employed by that organization. In Cole, the accused was a schoolteacher charged with possessing child pornography on his work issued laptop. The laptop was handed over to the police by school officials. The police then seized the computer and conducted a warrantless search. Justice Fish, writing for the majority, rejected the Crown’s contention that a third party could validly consent to a search or otherwise waive any constitutional protection on behalf of another. Defence counsel also purports to rely upon the decisions in R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 at para.136, and R. v. Spencer, [2014] S.C.R. 212.

[10] There are a number of reasons, however, why I have instead dismissed this defence application summarily, as urged by Crown Counsel. I will review them briefly.

[11] The first and most important reason relates to whether Ms. Motayne does have a privacy interest in the impugned documents. In my view, she does not. The documentation has long been in the public domain.

[12] In R. v. Plant, [1993] S.C.J. No. 97, the Supreme Court focused at para. 26 on the factors that should be looked at to determine whether personal information is privacy protected under section 8. The Court stated as follows:

Consideration of such factors as the nature of the information itself, the nature of the relationship between the parties releasing the information in the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allow for a balancing of the societal interests in protecting individual dignity, integrity and economy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.

[13] In Plant, however, the Court concluded that the information consisting of computer records relating to electricity consumption in connection with an alleged marijuana growing operation could not reasonably be said to reveal intimate details of the appellant’s life. They were prepared as part of an ongoing commercial relationship. In the result, the Court concluded that from the nature of the information, the relationship between the appellant and the electricity commission, the place and manner of the search and the seriousness of the offence under investigation, the appellant could not be said to have held a reasonable expectation of privacy in relation to the computerized electricity records which outweighed the state interest in enforcing the laws relating to narcotics offences.

[14] In this case, it is frankly astonishing to me that the applicant claims to have the alleged privacy interest in this documentation. Not only did counsel previously advise of no issue of admissibility with respect to the documents in contention, but furthermore, these documents are already in the public domain.

[15] After the fraud was discovered but before this criminal case arose, New Visions Toronto proceeded in the civil courts by way of summary judgment to try to obtain recompense for the monies taken by Ms. Motayne. The documentation referred to here was actually disclosed in August 2018 to defence counsel, but it was in the public domain earlier.

[16] That follows because it was all contained within a motion record dated September 29, 2017, which gave rise to the summary judgment granted by Schreck J. on May 23, 2018. The defendant sought no sealing order at that time to prevent disclosure to the public or protecting the privacy of that documentation, which was adduced as part of the evidential record in support of the summary judgment sought by New Visions Toronto against its former finance director, Ms. Motayne.

[17] There is another important reason, however, why this application should be dismissed summarily. I can do no better and refer to paragraph 38 of the decision of the Supreme Court of Canada in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659:

38 In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 7 O.R. (3d) 277 (Ont. C.A.), at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C. C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.

[18] So in summary, and in the circumstances of this case, in my view there is no merit to an argument that the defendant has a privacy interest in the allegedly impugned documentation that is protected by section 8 of the Charter. If she did at some point, it has long since been lost. Moreover, since I consider the application to be without merit based on the summary information provided to me by counsel, it follows that it could not succeed and ought to be dismissed.

Michael G. Quigley J. Released: July 2, 2019