COURT FILE NO.: CR-17-70000770-0000

DATE: 20191113

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.M.

Cidalia Faria, for the Crown

Sherif Foda, for the Defendant

HEARD: October 17 and 18, 2019

Davies J.

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify Ms. M.-A. shall not be published in any document, broadcast or transmission.

REASONS FOR JUDGMENT

(Motion for Directions, Definition of “Record” under s. 278.1)

A. Introduction

[1] W.M. is charged with several offences, including sexual assault with a weapon, sexual assault causing bodily harm and assault causing bodily harm. The charges arise out of an altercation that occurred on March 25, 2017 between Mr. M. and the complainant, Ms. M.-A.

[2] The defence has in its possession several Facebook messages between Ms. M.-A. and W.M. The Crown does not have a copy of the messages.

[3] Mr. M. brings a motion for directions on the question of whether he is required to bring an application under s. 278.92 of the Criminal Code for a ruling permitting him to use the Facebook messages during cross-examination of Ms. M.-A. at trial. Under the recent amendments to the Code, if the messages meet the definition of a “record” an application is necessary. If not, no application is required. The question of whether the messages are a “record” turns on whether Ms. M.-A. has a reasonable expectation of privacy over the content of the messages.

[4] Generally, the defence has no reciprocal disclosure obligation in criminal matters. For example, the defence does not ordinarily have to share information or records with the Crown that they might use to cross-examine a witness. Section 278.92 of the Code creates an exception to this rule: if the complainant has a reasonable expectation of privacy in the records in the possession of the defence, the defence must now bring an application in advance of trial to determine whether the messages are admissible.

[5] For the reasons that follow, I find that Ms. M.-A. does not have a reasonable expectation of privacy in the records in this case. The material in the defence possession is not a “record” and no admissibility application is required.

B. Statutory Framework

[6] New rules governing the admissibility of evidence in sexual assault cases came into effect in December 2018 when section 278.92 was added to the Code. It provides that no “record” relating to a complainant that is in the possession or control of the accused and which the accused intends to adduce at trial will be admitted in evidence at a sexual assault[^1] trial unless the Court determines that the evidence (a) meets the criteria for admitting evidence of other sexual activity, or (b) if the evidence does not relate to other sexual activity, it 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.

[7] The term “record” is defined in s. 278.1 as follows:

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 (emphasis added).

[8] The definition of “record” does not make explicit reference to electronic communications. As a result, the Facebook messages that W.M. has in his possession are only “records” for the purpose of the new evidentiary regime if they contain “personal information for which there is a reasonable expectation of privacy.”

[9] Sections 278.93 and 278.94 set out the procedure to be followed when the defence wants to adduce records that contain personal information about Ms. M.-A. for which she has a reasonable expectation of privacy. First, the defence must bring an application for a hearing to determine whether the records in the possession of the defence are admissible. The application must be in writing and must set out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial.”

[10] If the Court decides to hold a hearing, Ms. M.-A. has a right to participate in the hearing and has a right to be represented by counsel. At that stage, Ms. M.-A. would be entitled to receive a copy of the written application, including the particulars of the evidence and its potential relevance at trial. In other words, the complainant would get a copy of the records that the defence wants to use to cross-examine her before she testifies.

C. Procedural Issue

[11] As a preliminary matter, counsel for W.M. asked to file a copy of the electronic messages as a sealed exhibit on the motion for directions, meaning that I would review them but the Crown would not be given a copy for the purposes of this motion. He also suggested that I hear submissions from the defence in the presence of the Crown after I read the messages. The Crown would then have an opportunity, having heard the defence argument, to make submissions about whether Ms. M.-A. has a reasonable expectation of privacy in the messages.

[12] The Crown opposed the process suggested by the defence. The Crown took the position that if the messages were going to form part of the record on the motion for directions, the Crown should be able to review them. The Crown argued that it would be unfair to ask the Crown to make submissions about whether Ms. M.-A. has a reasonable expectation of privacy in the records without knowing the content of the records.

[13] I decided to review the messages and make them a sealed exhibit on the motion without permitting the Crown to review them. I provided the Crown with as much information as possible about the messages without disclosing the content of them. More particularly, I advised the Crown that the messages :

(a) are all between Ms. M.-A. and W.M. and there are no other parties to the communications;

(b) were exchanged through Facebook Messenger;

(c) were taken from W.M.’s Facebook account;

(d) were exchanged between December 14, 2016 and January 6, 2017; and

(e) do not contain any information that could constitute other “sexual activity” for the purpose of s. 276 of the Code;

[14] Counsel relied on the transcript from the preliminary inquiry to provide the factual background for this motion. Ms. M.-A. testified at the preliminary hearing that she communicated with W.M. by Facebook. She also testified that she blocked W.M. on Facebook and deleted their messages shortly before the alleged assault. As a result, the Crown also knows that Ms. M.-A. likely does not have copies of the Facebook messages in question.

[15] After giving the Crown as much information as possible, I heard argument from the defence about why they say Ms. M.-A. does not have a reasonable expectation of privacy in the records. The Crown then made submissions about why I should find that Ms. M.-A. does have a reasonable expectation of privacy over non-sexual messages sent to W.M.

[16] The procedure I adopted is similar to that used in other contexts where there is a dispute over whether information in the possession of one party should be disclosed to the other. For example, in R. v. Chaplin, the Supreme Court considered the procedure to be followed when the Crown takes the position that information in its possession is privileged and not disclosable. The onus is on the Crown to justify the non-disclosure and a voir dire is held to determine the issue. The trial judge can and in some cases should inspect the contested documents during the voir dire. In some cases, special procedures on the voir dire may be required to protect the confidentiality of the evidence.[^2]

[17] The Supreme Court created one such “special procedure” to be used when the defence is challenging the validity of a warrant that is based, in whole or in part, on information from a confidential informer that cannot be disclosed.[^3] The Crown can edit the confidential information out of the warrant and the information to obtain (ITO). A judicial summary explaining the “general nature of the deletions” to the ITO is provided to the defence. If the warrant cannot be sustained based on the edited affidavit, the trial judge can look at and consider the whole, unredacted warrant, as long as the accused is in a position to challenge the warrant “in argument or by evidence” on the basis of the judicial summary and other information in its possession. This procedure contemplates that information provided by or about the confidential informer will not be disclosed to the accused but will be available to the judge in assessing the validity of the warrant.

[18] In R. v. Crevier, the Court of Appeal held that an accused’s inability to access the redacted details in the ITO of what the informer told police does not necessarily prevent the defence from meaningfully challenging a warrant.[^4] In fact, the Court held that a well-crafted judicial summary along with the disclosure and the edited ITO will usually provide the defence with sufficient information to challenge the warrant even though it is redacted. The Court noted that the defence may have to make arguments in the alternative or on general principles, but that does not necessarily render the process unfair.[^5]

[19] A similar process has also been used where the defence claims that information seized by the police during the execution of a warrant is privileged and should not be turned over to the Crown. For example, in R. v. Church of Scientology, the defence claimed that documents seized by the police were protected by solicitor-client privilege. The Court described the process it used to resolve these claims as follows:

All the documents referred to were claimed to be confidential either at or, most frequently, after the seizure. Each document for which privilege was claimed was copied by or at the request of representatives of the applicant Church of Scientology, the copy given to the representatives and the original sealed. In order that the Crown should have some opportunity to respond to the claim for privilege, counsel for the Church stated in Court the name of the sender, the name of the recipient, the date where there was one, and the number given to the document in the elaborate classification used by the Ontario Provincial Police in listing the document, indicating in what part of the building it was found, in what carton or container, and the title given by the police to the container in which the document was placed. To a degree, but probably not entirely consistently, I indicated the type of document and the sort of subject-matter, but in no case were details given to the Crown.[^6]

The Court reviewed the documents and then heard submissions from the defence and Crown counsel.

[20] I recognize that there is no suggestion that the electronic messages in the possession of the defence in this case are privileged. Nonetheless, I have been asked to rule on a dispute over whether the defence should be required to disclose the messages to the Crown on a pre-trial application because they fall within the definition of “record” in s. 278.1. Unless Ms. M.-A. has a reasonable expectation of privacy in the Facebook messages, W.M. is entitled to keep them confidential until he chooses to use them at trial.[^7] While an accused does not have a right to trial by ambush, the defence is generally not required to disclose their strategy to the Crown and Ms. M.-A. in advance of trial.[^8]

[21] Further, Mr. M. has the right to know the case he must meet before he is called upon to respond. This right against self-incrimination is one of the fundamental aspects of the protections afforded by s. 7 of the Charter. In R. v. P.(M.B.), the Supreme Court explained how the right against self-incrimination operates at the pre-trial stage of criminal proceedings:

Before trial, the criminal law seeks to protect an accused from being conscripted against him or herself by the confession rule, the right to remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151. With respect to disclosure, the defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence.[^9]

[22] The consequences of requiring W.M. to bring an application and give the messages to the Crown and Ms. M.-A. before she testifies are potentially profound. It may violate his s. 7 right against self-incrimination as articulated in P.(M.B.). In addition, to the extent the Facebook messages have impeachment value in this case, that value would largely be lost if Ms. M.-A. is able to review the message in advance and tailor her evidence to respond to the content of the messages.[^10] This is particularly significant in this case because the credibility and reliability of Ms. M.-A.’s evidence will be a central issue.

[23] At the preliminary inquiry, Ms. M.-A. testified that she went to W.M.’s apartment on the night of March 25, 2017. They had known each other for a few months. They would drink and party together. Ms. M.-A. testified that after a few drinks, Mr. M. became upset with her because she had blocked him from communicating with her by Facebook Messenger. He also accused her of sleeping with one of his friends. Ms. M-A said that during their argument Mr. M. punched her in the face, breaking her jaw. He then got a knife from the kitchen and put it on the coffee table. He threatened her and forced her to have intercourse with him. Once the sexual assault ended, Mr. M. took Ms. M.-A.’s cell phone and money and threw her out of his apartment.

[24] Mr. M. filed an affidavit on a separate pre-trial motion under s. 276(1) of the Code in which he set out his version of what transpired on March 25, 2017. Mr. M. said that he and Ms. M-A had consensual sexual intercourse that night after consuming alcohol and cocaine together, and that that Ms. M-A became angry and violent with him after they had sex because he would not give her more drugs and he wanted her to leave. The defence will likely not contest that Ms. M-A’s jaw was broken but will argue that W.M. was acting in self-defence. Ms. M-A’s credibility and reliability will, therefore, be a central issue at trial and requiring Mr. M. to disclose the messages will significantly undermine his ability to challenge her testimony.

[25] In most cases, there will probably be no doubt that the items in the possession of the defence contain information over which the complainant has a reasonable expectation of privacy. If, for example the accused comes into possession of the complainant’s medical records (through a third party records application or otherwise), or finds the complainant’s diary, or surreptitiously accesses her email or text messages, or is in possession of records that contain information about sexual activities involving the complainant, there will be no doubt that the complainant has a reasonable expectation of privacy in those records and the defence will have to comply with the regime set out in ss. 278.92 to 278.94 of the Criminal Code.

[26] If, however, the defence either does not believe or has a doubt that the material in its possession is a “record” (and therefore subject to the new admissibility regime), it should be open to the defence to bring a motion for directions, as W.M. has done, to have the Court to decide whether the complainant has a reasonable expectation of privacy in the records. The process adopted on the motion for direction should ensure that the defence is not forced to disclose the material in question to the Crown or the complainant until that determination is made.

[27] Employing an approach similar to the one set out in Garofoli ensures that the defence is not required to disclose information it is otherwise entitled to keep confidential. The process established Garofoli protects the confidentiality of information about the informant and also gives the accused enough information to challenge the warrant. Adapting that process to this motion for directions similarly protects the confidentiality of the information in the possession of the defence while giving the Crown enough information to make submissions as to why the complainant has a reasonable expectation of privacy in the records.

[28] As in Crevier, the Crown is not limited in its submissions to relying only on the summary provided. The Crown can speak to Ms. M.-A. or counsel for Ms. M.-A. about what records the defence might have. The Crown will also have access to the disclosure. It may be that the Crown will have to make general arguments on the scope of Ms. M.-A.’s privacy interest in electronic communications or alternative arguments based on the possible content of the messages.

D. Does Ms. M.-A. have a reasonable expectation of privacy over the Facebook messages?

[29] In Canada, there are three recognized “zones of privacy”: privacy over places or spaces we occupy (territorial privacy), privacy over the sanctity of our own bodies (personal privacy) and privacy over information about ourselves (informational privacy).[^11] This case deals only with informational privacy, which is premised on the idea that people have a right to decide for themselves when, how and to what extent they share personal information with others.[^12]

[30] Before assessing whether Ms. M.-A. has a reasonable expectation of privacy and what factors go into that determination, it is important to note that s. 278.1 defines a record as anything that contains information over which Ms. M.-A. has as reasonable expectation of privacy. The decision is not whether Ms. M.-A. has at some time in the past had a reasonable expectation of privacy, although that may well be a relevant consideration. The question is whether Ms. M.-A. has a reasonable expectation of privacy at the time the application is made.

[31] Whether Ms. M.-A. has a reasonable expectation of privacy in the conversation she had with W.M. through Facebook Messenger must be assessed in the “totality of the circumstances”.[^13] Privacy is not an “all or nothing concept”.[^14] The fact that W.M. is in possession of the messages does not necessarily extinguish Ms. M.-A.’s expectation of privacy over their content.[^15] Again, that may be a relevant factor but it is not determinative.

[32] When we choose to share personal information about ourselves with another person, there is always a risk that that person will divulge it to someone else. The fact that someone shares information with someone else does not, on its own, mean they lose all expectation of privacy over that information for all purposes. For example, in R. v. Duarte, the Court held that by choosing to share information with another person, we are not expected to assume the risk that the state will intercept that information and create a permanent record of it.[^16] As a result, whether someone has or retains a reasonable expectation of privacy over personal information cannot be determined simply by looking at whether the person created a risk that the information would be shared or disseminated further, although that remains a relevant factor.[^17] There will be situations where an individual retains a reasonable expectation that information she shared will remain confidential to the person with whom it was shared and for the purpose for which it was shared.[^18]

[33] Several cases have considered whether, and to what extent, a person continues to have an expectation of privacy over personal information that they share with others or have given people the ability to access.

[34] In R. v. Reeves, the Supreme Court of Canada considered whether the accused continued to have a reasonable expectation of privacy over the content of a computer he shared with his spouse.[^19] Mr. Reeves’s spouse found what she believed was child pornography on their jointly owned and used computer. She told the police about it and signed a consent for the police to seize the computer. The Court held that Mr. Reeves and his spouse both had an expectation of privacy over the content of their shared computer, Mr. Reeves’s spouse could not waive his expectation of privacy over the content of the computer. Importantly, however, the Court held that Mr. Reeves’s spouse was “of course free to, and did, notify the police about what she saw on the computer.”[^20] The Court declined to rule on whether Mr. Reeve’s rights under s. 8 of the Charter would be engaged if his spouse had voluntarily taken the computer to the police.[^21]

[35] In R. v. Jarvis, the Supreme Court considered whether students have an expectation that they will not be surreptitiously recorded by a teacher at school. Mr. Jarvis was charged with voyeurism, which requires the Crown to prove that he surreptitiously observed or recorded another person “in circumstances that give rise to an expectation of privacy.” Mr. Jarvis was a high school teacher who recorded students without their knowledge using a hidden camera while they were engaged in ordinary school-related activities in common areas of the school. The videos focused on the faces and chests of female students. The Court reiterated that a variety of circumstances will inform whether an individual retains any reasonable expectation that they will not be recorded even though they can be observed by the person making the recording.[^22] In the end, the Court held that although the students knew their teacher could observe them, they did not know their teacher was making a permanent recording of them at close range. The lack of knowledge and consent was an important factor in the Court deciding that the students retained a reasonable expectation of privacy over permanent images of their bodies being captured. The Court also considered the fact that the videotaping of the students was contrary to school policy, which informs what level of privacy students could reasonably expect.

[36] In at least two cases, Canadian courts have considered whether an accused retains a reasonable expectation of privacy over electronic communication he sent. In R. v. Mills, the Supreme Court held that the accused did not have a reasonable expectation of privacy over sexually explicit Facebook messages he thought he was sending to a 14-year-old girl. In reality, Mr. Mills was communicating with a police officer posing as a young girl. While the Court accepted that Mr. Mills had a subjective expectation of privacy, they found his expectation was not objectively reasonable because of the nature of the relationship between Mr. Mills and the child:

This leads me to conclude that, on the normative standard of privacy described by this court, adults cannot reasonably expect privacy online with children they do not know. That the communication occurs online does not add a layer of privacy, but rather a layer of unpredictability.[^23]

[37] In R. v. Phagura,[^24] a decision of the British Columbia Supreme Court, the trial judge considered whether Mr. Phagura retained a reasonable expectation of privacy over Whatsapp messages he sent to Ms. M.-A. before and after an alleged sexual assault. In that case, Ms. M.-A. let the police take photographs of the messages Mr. Phagura sent to her. Mr. Phagura argued that he retained an expectation of privacy in those messages and the police should have got a warrant to seize them from Ms. M.-A. In one of the messages, Mr. Phagura asked Ms. M.-A. to keep what happened between them secret. Nonetheless, the Court held that even if Mr. Phagura wanted the messages to be kept private, there was no evidence that Ms. M.-A., as the recipient of the messages, ever intended to keep them confidential. The Court also considered the nature of the relationship between Mr. Phagura and Ms. M.-A.; they were close family friends. In the end, the Court held that while Mr. Phagura had a subjective expectation that the messages would remain private, that expectation was not reasonable in the circumstances.

[38] This case does not engage s. 8 Charter considerations: the state was not involved in searching or seizing the electronic messages in question. They have been in the hands of W.M. since Ms. M.-A. sent them to him. While the jurisprudence on the meaning of “reasonable expectation of privacy” in the context of a search by the state is instructive, different considerations come into play when the information is in the hands of a private citizen who is defending himself against criminal charges. And in that context, the accused’s s. 7 Charter right against self‑incrimination is also engaged.

[39] In R. v. M.S.,[^25] Chapman J. of the Ontario Court of Justice decided a similar motion for directions in relation to various documents in the possession of the defence including intimate photographs, photographs of a less intimate nature and social media posts and messages. In that case, Chapman J. also reviewed the items in the possession of the defence. The Crown was not allowed to review them before making arguments about whether the complainant had a reasonable expectation of privacy over information in the records. Importantly, defence counsel would not tell the trial judge where the records came from or how they came to be in the accused’s possession. In the end, the trial judge found that some of the items were captured by the definition of “sexual activity” and therefore subject to the s. 276 regime. In relation to the social media messages, the Court held that they may attract an expectation of privacy: “The assessment is always case-specific and would depend on the nature of the communication, its relevance to the offence in question, and its remoteness in time.”[^26] The Court held that, without further evidence, the defence had not established that there was no reasonable expectation of privacy in the text messages that disclosed personal information.

[40] These cases all demonstrate that the determination of whether someone has a reasonable expectation of privacy is very fact specific. It is not based exclusively on a risk analysis. It is not based exclusively on who controls the information. It is a normative analysis that asks whether an independent, informed observer would think that Ms. M.-A. ought to have an expectation of privacy over the information, given the circumstances.

[41] There are four factors that are most relevant to my assessment in this case:

(a) the content of the messages;

(b) the manner in which the messages were sent and who has control over them;

(c) the nature of the relationship between W.M. and Ms. M.-A.; and

(d) the policy implications of finding she does have a reasonable expectation of privacy.

Taken together, these factors lead me to the conclusion that Ms. M.-A. does not have a reasonable expectation of privacy over the Facebook messages. Even if, subjectively, she wants them to remain private, or at least not used against her in cross-examination without prior notice, that expectation is not objectively reasonable in the circumstances of this case.

(a) Content of the messages

[42] The Facebook messages do not contain any information of a sexual nature. As a result, there is no risk that the use of the messages in cross-examination could engage either of the twin myths expressly prohibited by s. 276(1) of the Code. There is also no risk that making the content of the messages public will undermine Ms. M.-A.’s personal dignity or security.

[43] The messages do contain personal information in the sense that they disclose information about Ms. M.-A.’s social interactions and daily activities. However, they do not contain information of a highly personal or intimate nature.

(b) Manner in which the messages were sent

[44] In Marakah, the Supreme Court held that the sender of an electronic communication has a reasonable expectation that the police, or the state, will not seize that communication from the recipient.[^27] The issue here is not whether the state is entitled to seize Ms. M.-A.’s Facebook messages from W.M. (or W.M.’s electronic communications from Ms. M.-A.). The issue is whether Ms. M.-A. has a reasonable expectation that W.M., as the intended recipient of the messages, will keep them private.

[45] The fact that W.M. was the intended recipient of Facebook messages is a significant factor in deciding whether Ms. M.-A. can reasonably expect that they will be kept private and will not be used by the intended recipient. To the extent that the messages contain personal information about Ms. M.-A., she chose to share that information with W.M. She also chose to do so in writing, knowing that she was creating an electronic record that W.M. could save and share with others.

[46] The fact that Ms. M.-A. chose to share information with W.M. distinguishes the Facebook messages from the categories of records enumerated in s. 278.1 of the Code, none of which are created with the intention that they will be received by the accused. For example, medical or counselling records are created for a specific and limited purpose of providing care to the complainant. When personal information is shared with a particular person for a limited purpose, it is understandable that a complainant may have a reasonable expectation that that information will not be used by other people for another purpose.[^28] There is no suggestion that Ms. M.-A. sent the messages to W.M. for any limited or specific purpose. In addition, the messages do not contain any express or implied request by Ms. M.-A. to keep the content of the messages private and not use them or further disseminate them.

[47] I recognize that this factor imports a risk analysis into the decision of whether Ms. M.-A. has a reasonable expectation of privacy over information she shared with W.M. As the courts have repeatedly said, risk of further dissemination is not determinative. It is nonetheless relevant that Ms. M.-A. chose to give W.M. the information he now wishes to use and she did so in a manner that she knew would create a permanent record that he could save. The kind of risk at issue on the facts of this case is quite different from the risk at issue in Duarte or Marakah, namely that the state might intercept or make a permanent record of the communication.

(c) Nature of the Relationship

[48] As set out above, the question here is whether Ms. M.-A. has a reasonable expectation of privacy over the information in the records now.

[49] I expect there will be a dispute over the nature of the relationship between W.M. and Ms. M.-A. prior to the alleged sexual assault. At the preliminary inquiry, Ms. M.-A. described their relationship as “casual”. She said that she would run into him from time to time and would have a drink with him. I anticipate that W.M. will take the position that they had a more substantial, intimate relationship. If they were casual acquaintances that would, in my view, lower Ms. M.‑A.’s expectation that W.M. would keep her messages private at the time she sent them. If, however, W.M. and Ms. M.-A. were in an intimate relationship, that would tend to increase Ms. M.-A.’s expectation, at the time she sent the messages, that he would keep information about her private.

[50] Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now. Ms. M.-A. has made very serious allegations against W.M. They are now in an adversarial relationship. Just as it would not be reasonable for W.M. to expect Ms. M.-A. to keep information about him private that would enhance the reliability and credibility of her testimony it is not, in my view, reasonable for Ms. M.‑A. to expect that W.M. will continue to keep private, but not sexual electronic communications which might advance his defence. Again, the messages here do not constitute sexual activity and do not engage s. 276 of the Code. There is nothing about the content of the messages that would compromise Ms. M.-A.’s dignity or personal security if she were asked about them in cross-examination.

(d) Policy Implications

[51] One final factor I have considered is the policy implications of concluding that Ms. M.-A. has a reasonable expectation of privacy over electronic communications she exchanged with W.M. Because privacy is a normative construct, this is, in my view, an appropriate consideration.

[52] If Ms. M.-A. has a reasonable expectation of privacy in the Facebook messages exchanged with W.M. during their relationship, it would follow that W.M. also has a reasonable expectation of privacy over those communications. In this case, the electronic communications are relevant to the defence. In many cases, however, electronic communications between the complainant and an accused will be helpful to the Crown in that they contain admissions from the accused or corroborate the complainant’s evidence. Complainants often give the investigating officer or the Crown copies of electronic communications they set to and received from the accused. If an accused retains a reasonable expectation of privacy in electronic communications he sent to and received from the complainant, his s. 8 rights would be engaged when the Crown or police take possession of them. In other words, if the accused retains or might retain a reasonable expectation of privacy over messages he sent to the complainant, the police may well be required to get a warrant to take copies of them from the complainant.

[53] Although the Supreme Court of Canada deliberately declined to rule on this issue in Reeves, it seems impractical and unworkable to require the state to obtain a warrant to take copies of messages a complainant sent to the accused if they corroborate her allegations. However, that may well be the result of a ruling that the sender of an electronic message always or usually retains a reasonable expectation that the recipient of the message will keep it private.

[54] In addition, as set out above, interpreting the definition of “record” in an expansive manner to include any private communication between an accused and complainant may well infringe W.M.’s s. 7 rights. The Facebook messages are prior statements by the complainant that may well be inconsistent with her testimony at trial. Cross‑examination witnesses on prior inconsistent statements is one of the most important means of testing their credibility and reliability. Requiring the defence to disclose prior statements which may be inconsistent with evidence given at trial before the witness testifies could seriously undermine the accused’s rights under s. 7 of the Charter.

[55] The potential Charter implications, therefore, support a more narrow interpretation of the phrase “reasonable expectation of privacy” in this context.

(e) Conclusion

[56] I find that even if Ms. M-A has a subjective expectation that her Facebook messages with W.M. would remain private, that expectation is not reasonable in all the circumstances of this case, including the innocuous, non-sexual content of the messages, the manner in which they were sent and the nature of the current relationship between she and W.M. The unintended consequences of finding that Ms. M.-A. has a reasonable expectation of privacy over information she chose to share with W.M. in a manner she knew would create a permanent record simply bolsters my conclusion that Ms. M.-A. does not have a reasonable expectation of privacy over the Facebook messages and they are not “records” for the purpose of s. 278.1 of the Criminal Code.

[57] Having come to that conclusion, it follows that Mr. M. is not required to bring an application under s. 278.93 before using the records in question at trial.

Davies J.

Released: November 13, 2019

COURT FILE NO.: CR-17-70000770-0000 DATE: 20191113

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

W.M.

REASONS FOR JUDGMENT (Motion for Directions, Definition of “Record” under s. 278.1)

Davies J.

Released: November 13, 2019

[^1]: Section 278.92 applies to more than just sexual assault cases. The section contains a list of offences to which the new regime applies. In R. v. Barton, 2019 SCC 33 at para. 76, the Court held that the regime applies to any proceeding in which an offence listed in s. 276(1) “has some connection to the offence charged, even if no listed offence was particularized in the charging document.” [^2]: 1995 126 (SCC), [1994] S.C.J. No. 89 at para. 25 [^3]: R. v. Garofoli, 1990 52 (SCC), [1990] 2 SCR 1421 at 1461 [^4]: 2015 ONCA 619 at para. 80 [^5]: Crevier, at para. 77 [^6]: (1984), 1984 2141 (ON SC), 13 C.C.C. (3d) 353 (Ont. H.C.) at para. 5 [^7]: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 at para.11 – 12 [^8]: R. v. Darrach, 2000 SCC 46 at para. 55 [^9]: 1994 125 (SCC), [1994] 1 S.C.R. 555 at para. 39 [^10]: R. v. Taylor, 1999 3695 (ON CA), [1999] O.J. 258 (C.A.) at para. 20 [^11]: R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417 at paras. 30 - 33 [^12]: R. v. Tessling, 2004 SCC 67 at para. 32, R. v. Jarvis, 2019 SCC 10 at para. 66 [^13]: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 at paras. 31 and 45; R. v. Marakah, 2017 SCC 59 at para. 10 [^14]: R. v. Jarvis, 2019 SCC 10 at para. 61 [^15]: R. v. Clifford, 2002 14471 (ON CA), [2002] O.J. No. 865 (C.A.) [^16]: 1990 150 (SCC), [1990] 1 S.C.R. 30 at p. 44, [^17]: Jarvis, at para. 68 – 69, R. v. Mills, 2019 SCC 22 at para. 20 [^18]: Dyment, at para. 33 [^19]: 2018 SCC 56 [^20]: Reeves, at para 45 [^21]: Reeves, at para. 46 [^22]: Jarvis, at paras. 41 and 60 [^23]: R. v. Mills, 2019 SCC 22 at para. 23 [^24]: [2019] B.C.S.J. No. 1807 [^25]: 2019 ONCJ 670 [^26]: M.S., at para. 68 [^27]: Marakah, at para. 40 [^28]: Dyment, at para. 33