Court File and Parties
Court File No.: 18-RD19590 Date: 2019-07-15 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Trevor Lebrun, Defendant
Counsel: T. Dobec, for the Crown (Respondent) G. McInnes, for the Defendant (Applicant)
Heard: May 1, 2019 (at Ottawa)
Reasons for Dismissal of Defence Application
Kane J.
[1] The defendant is charged with eleven offences of misconduct against the complainant K.C. Ten of those charges allegedly occurred on January 19, 2018 and include charges of sexual assault, sexual assault causing bodily harm and use of a weapon in committing sexual assault contrary to sections 271 and 272(2) of the Criminal Code.
Relief Claimed in Pre-trial Application
[2] The defence Notice of Application seeks the following orders:
(a) that the text message communications in the possession of the applicant, between the complainant and the applicant on January 19, 2018, prior to the conduct charged, do not constitute a “record” as defined by s. 278.1, as the complainant does not have a “reasonable expectation of privacy” as to such text messages, which therefore are not presumptively inadmissible records under s. 278.92 of the Code;
(b) that a s. 278.4 hearing as to such text message communications between the defendant and the complainant accordingly is not required;
(c) that these same text messages and all communication between the applicant and the complainant on the day of and prior to the conduct charged, some of which contain content of a sexual nature, are not captured by or the subject of s. 276, as the sexual content of the messages relate to the alleged sexual activity that forms the subject matter of the charge and accordingly, a s. 278.4 hearing is not required;
(d) that the electronic communications in the possession of the applicant, as between the complainant and the applicant’s mother, the applicant’s cousin and the applicant’s sister prior to and subsequent to January 19, 2018, do not constitute a “record” as defined by s. 278.92 as the complainant does not have a “reasonable expectation of privacy” to those records and accordingly, a s. 278.4 hearing is not required;
(e) that these electronic communications between the complainant and the applicant’s above relatives contain no sexual content, other than the post January 19, 2018 text messages from the complainant to the applicant’s sister which contains sexual content in reference to the charged allegations, are not captured by s. 276 as the sexual content in those messages is related to the alleged sexual activity that forms the subject matter of the charge and accordingly, a s. 278.4 hearing is not required; and
(f) all of the electronic correspondence at issue is not captured by s. 278.2 or s. 276(4) and accordingly, a s. 278.4 hearing is not required in order for the applicant to adduce this evidence at trial.
Evidence in Issue
[3] The applicant has possession from his telephone of the text message communication between himself and the complainant on January 19, 2018 prior to the offenses charged.
[4] Upon argument of this application, defence counsel amended this application to include verbal communication between the applicant and the complainant on the day of and prior to the alleged misconduct.
[5] The text messages in issue were not produced on this application. The court’s knowledge thereof is limited to the affidavit from defence counsel’s legal assistant. She states that she has reviewed the text messages sent between the applicant and the complainant earlier on January 19, 2018 prior to the events charged which the defence may wish to adduce into evidence at trial.
[6] The deponent in her affidavit as to the text messages between the complainant and the applicant on January 19, 2018, states that there is some sexual content contained within these text messages restricted to and described as follows:
(a) reference by the complainant and the applicant to future [that same evening] sexual acts, as between them; and
(b) general “flirtatious” talk, in the context of future [that seemed evening] sexual acts” as between them.
[7] As to the electronic correspondence between the complainant and relatives of the defendant, the deponent states that the defence may wish to adduce this evidence at trial and that it consists of:
(a) text message correspondence after January 19, 2018, between the complainant and the applicant’s sister, which contain criticism of the applicant and reference to the allegations charged. The only sexual content therein is in reference to the charged conduct;
(b) text message correspondence between the complainant and the applicant’s mother prior to January 19, 2018, which includes no sexual contact, but includes expressions of anger by the complainant towards the applicant and descriptions of arguments between the complainant and the applicant; and
(c) Facebook Messenger correspondence between the complainant and the applicant’s cousin subsequent to January 19, 2018, which contains reference to the allegations charged and contains no sexual content, other than reference to the allegations charged.
[8] The Crown, subject to seeing the electronic communications in issue:
(a) agrees that the complainant does not have a reasonable expectation of privacy in relation to the text messages in issue between herself and the defendant;
(b) submits that a s. 276 hearing is required as to the admissibility of the text messages between the complainant and the defendant;
(c) agrees that the complainant does not have a reasonable expectation of privacy regarding the text messages between herself and the three relatives of the applicant; and
(d) subject to an objection as to relevance, if appropriate, agrees that the text messages in issue between the complainant and the three relatives of the applicant do not fall under or are caught by s. 276 and no hearing therefore is required in relation to the same.
[9] The court has been provided with no information as to the nature or content of the alleged verbal communications between the defendant and the complainant on January 19, 2018 prior to the events charged.
[10] To be clear, the defence has no obligation to disclose the contents of the text messages or the verbal communication in issue on this application.
Basis of Application
[11] It is unclear on what basis this application is brought by the defence.
[12] The Notice of Application states that the issue is whether or not a s. 278.4 hearing is required to obtain the court’s authorization to permit the defence at trial:
(a) to use and introduce into evidence communications, including emails and text messages, between the defendant and the complainant which occurred several hours prior to the alleged commission of the offenses charged; and
(b) to use and introduce into evidence electronic emails or text messages prior and subsequent to January 19, 2018, between the complainant and relatives of the defendant.
[13] Contrary to the indication in the Notice of Application, the subject matter of this application and the issue now before the Court is not whether a s. 278.4 hearing is required.
[14] A s. 278.4 hearing is part of the sections 278.2 to 278.8 provisions as to whether or not records regarding the complainant in the possession of a third party should be produced and examined by the court to determine whether such records should be disclosed to the defendant.
[15] Even if a court pursuant to s. 278.7 orders that the records be produced to the defendant, such records remain presumptively inadmissible at trial pursuant to s. 278.92, unless the defendant successfully by application obtains leave to introduce such records into evidence pursuant to sections 278.92 to 278.94.
[16] The defence already has possession of the records in issue, namely copies of the electronic messages to and from the complainant.
[17] This is not a s. 278.3 application in which an accused seeks an order that documents regarding the complaint be produced by a third party.
[18] Sections 278.2 to 278.8 involve whether the court will order production of records from a third party for an in-camera hearing and for an order that the documents be produced to the defendant. Those sections of the Code are inapplicable in this case as the defendant already has possession of the records which do not require production of from a third party.
[19] Independent of the issues raised on this application, no section 278.4 hearing is accordingly required on these facts for the above reasons.
[20] The issue is not therefore whether the court should order a s. 278.4 hearing.
[21] The defence states that it has not yet decided whether it will use or introduce the above communications in evidence at trial. This application accordingly seeks relief which the defence does not yet know whether it requires and is asking that the court conduct an analysis and render a decision on the chance that the defence may decide at trial that it wishes to introduce such records into evidence.
Crown’s Interpretation of Application
[22] The Crown in argument stated this defence application and today’s argument thereof are a 278.93 preliminary hearing to determine whether a s. 278.94 hearing is required, in which second hearing the court will determine if the proposed evidence is admissible under s. 276.
[23] An application under s. 278.93 is brought by an accused who seeks a hearing under s. 278.94 to determine whether evidence is admissible under subsections 276(2) or 278.92(2).
[24] The court disagrees with the Crown’s interpretation of this defence application. The defence has not brought a s. 278.93 application and is not seeking a s. 728.94 hearing be granted to determine the admissibility of the records, as it submits the records are not governed by the above provisions of the Code and require no admissibility hearing pursuant to sections 276(2) or 278.92.
Unknowns
[25] The court on this application does not know:
(a) what specific acts of sexual misconduct are alleged against the defendant;
(b) what sexual acts were communicated via text message between the defendant and the complainant on January 19, 2018, prior to the sexual conduct charged and the context of such communication;
(c) what was said and by whom in the verbal communication between the defendant and the complainant on January 19, 2018 prior to the misconduct alleged;
(d) the relationship, if any, between the charged acts of sexual misconduct and the sexual acts communicated by text and verbally, and by whom;
(e) whether and how the text message records and verbal communications relate to an issue at trial;
(f) whether the nature of the text messages or verbal communication in issue, within the context of s. 276(4), potentially is a prohibited attempt pursuant to s. 276(1) to support an inference that by reason of the nature of that sexual activity communicated, the complainant is more likely to have consented to the sexual activity charged, or is less worthy of belief;
(g) whether or not the defence at trial intends to rely upon the text messages and/or the verbal communication in issue;
(h) whether the Crown, if an when the defence seeks to introduce the communications in issue at trial, due to the content of those messages then disclosed, will thereupon withdraw its current conditional consent and seek to renew argument of the issues in this application; and
(i) what is the legal basis relied upon by the defence to bring this application seeking this pre-trial determination of the points of law raised.
Conclusion
[26] A s. 278.4 hearing is not required as the defendant already has the text message communication and does not require an order that they be produced by a third party for review and determination by the court.
[27] Given the nature and extent of the above unknowns, it is premature and would be inappropriate for the court to now determine the admissibility of and whether a s. 278.92 or s. 278.94 hearings are required as to the text message and verbal communication between the defendant and the complainant.
[28] The information referred to in paragraphs 25 (a) to (e) may impact the issue as to whether such prior communications are admissible independent of sections 26 and 278.92 to 278.94.
[29] This defence application is accordingly dismissed, without prejudice to its right to bring a further application before trial or to seek the introduction of such evidence at trial subject to the issues herein.
Mr. Justice Paul Kane