Court File and Parties

COURT FILE NO.: CR-18-10000669

DATE: 2019-11-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

JEFFERY MAI

Counsel:

John Flaherty, for the Crown

Dean Embry, for the accused

Joanna Birenbaum, Intervener on behalf of the complainant

HEARD: Nov 13, 14, 2019

PUBLICATION BANS

Pursuant to section 486.4 of the Criminal Code it is ordered that there be no publication by any means of the identity of the complainant or any information that could identify the complainant.

Further, pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Reasons for Ruling

G. ROBERTS J.:

[1] Defence counsel brings an Application for Direction seeking a ruling that certain electronic communications exchanged between the accused and the complainant are not records captured by the scheme set out in s.278.92 of the Criminal Code. In the alternative, if the communications are captured by the s.278.92 scheme, the defence seeks a ruling that they are admissible because they are relevant, and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[2] Section 278.92 came into force in December 2018. As Justice Breen described in R. v. A.R.S., 2019 ONCJ 645, the legislation is the latest "word" in the on-going dialogue between Parliament and the courts about how to balance a complainant's right to privacy and equality with an accused's right to a fair trial. The new provision is part of a package of amendments consolidating the procedure for the admission of extrinsic "sexual activity" and private records. The changes can be broadly summarized as follows:

• The definition of "sexual activity" has been broadened to include "any communication made for a sexual purpose or whose content is of a sexual nature".

• Private records include records in the possession of the defence.

• The admission of both private records and evidence of sexual activity is now governed by the same two step procedure.

• The complainant has standing to be represented by counsel, and make submissions, at the second stage of the admissibility procedure.

[3] More specifically, section 278.92(1) provides that no "record" relating to a complainant that is in the possession or control of an accused can be adduced in a trial involving one of the enumerated offences, which include sexual assault, unless the record 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. In making this assessment, the judge must take into account the list of factors enumerated in s.278.92(3), and follow the procedure outlined in ss.278.93 and 278.94. As noted, the complainant has standing at the s.278.94 hearing, thus she will have full notice of what defence counsel seeks to put to her on cross-examination and why.

[4] Section 278.1 of the Criminal Code defines "record" for the purpose of sections 278.2 to 278.92 as

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.

[5] In short, this application involves a threshold determination of whether certain communications in the possession of the defence, which the accused wishes the option of adducing at trial, meet the definition of record in s.278.1 of the Criminal Code.

[6] Joanna Birenbaum was present at the hearing in her capacity as counsel for the complainant. The regime grants her no role unless and until a hearing is held under s.278.94 to determine whether the evidence is admissible under s.278.92(2). Ms. Birenbaum applied for intervener status in relation to this application. Given the relatively novel issue involved in this application, I granted her intervener status, initially to make submissions in relation to the appropriate procedure to follow, but I then expanded her status to permit her to make submissions on the appropriate test to apply to this threshold question.

[7] At the outset of proceedings, counsel provided me with the decision of Justice Chapman in R. v. M.S., 2019 ONCJ 670. Just as we were beginning our application, Justice Davies released a ruling in R. v. W.M., 2019 ONSC 6535, which I shared with counsel.

[8] For the reasons that follow, I conclude that the electronic communications in question do not fall within the definition of record in s.278.1 of the Criminal Code, thus they can be adduced at trial without the need for a hearing under s.278.92. In light of this conclusion, it is not necessary to consider the alternative position of the defence seeking a ruling on the admissibility of these records and I make no such ruling. My ruling at this stage is limited to whether the s.278.92 regime is engaged, and its process needs to be followed in order for the communications to be adduced in any way at the trial. I am not ruling on the actual admissibility or use of the communications at trial. It is still open to the Crown to object, and me to intervene, in the event that the proposed use of these communications at trial engages s.276, or the probative value of the evidence is substantially outweighed by its prejudicial effect.

The appropriate procedure

[9] Defence counsel provided me with copies of the electronic communications he seeks permission to adduce. The communications include three different "bundles" of electronic communications. They were made sealed exhibits A1, A2, and A3 in chronological order based on when the communications were exchanged. Defence counsel then made a summary of the communications, including: the parties to the communications, the platform used, where and how they were obtained, when they were exchanged, and what they were about. This summary was made exhibit 1. During our in-court discussion about the summary, defence counsel provided additional information about the communications, and how he intended to use them. He also made a correction to the summary. The summary included the following:

• The communications were exchanged between September 7, 2017 and May 27, 2018.

• The parties to the communications in 2017 are the complainant and the accused.

• All proposed communications are authored either by the complainant or the accused.

• The communications were exchanged over Whatsapp.

• The communications were sent directly to the accused and are the accused's copies.

• The communications do not contain any information that could constitute other "sexual activity" for the purpose of s.276 of the Code.

[10] Defence provided the following additional information about what the communications were about, and their timing:

• A1 consists of four conversations about drug use. The first three occurred in September 2017. The fourth occurred in January 2018. All four conversations are between the accused and the complainant only.

• A2 consists of a discussion about social planning. A portion of this discussion includes reference to an Instagram post. Defence counsel showed me a copy of the Instagram post. It appears to refer to drug use. There is another comment in this conversation, by the accused, which I did not understand. Defence counsel assured me it does not fall within the broad definition of "sexual activity" in s.276(4) (again, any communication made for a sexual purpose or whose content is sexual in nature). There is a further comment by the accused about his observation of the complainant's behaviour.

• A3 consists of a second discussion about social planning. A portion of this discussion includes comments that could fall within the broad definition of "sexual activity" in s.276(4). Defence counsel clarified that he provided this entire "conversation" for the purpose of this application, in order to be complete, but he only seeks to adduce a portion on this conversation, beginning with "Anyways back to getting rdy (though the balance of this line would not be adduced) at 7:36 pm, down to "Here 3mins" at 10:12 pm. And he only seeks to adduce it in relation to the date and timing of when the accused and the complainant went out. This communication occurred as part of a group chat which included a third person, but the only people actively participating are the complainant and the accused.

[11] More broadly, defence counsel clarified that the electronic communications he provided are not excerpts, but the complete exchange: nothing has been added or deleted.

[12] In addition, defence counsel confirmed that he does not intend to use the communications to suggest any kind of sexual purpose or behavior by either the complainant or the accused. Defence counsel acknowledges that using the communications in this manner would require an application pursuant to s.276 of the Criminal Code.

[13] The procedure we adopted follows the one crafted by Justice Davies (see R. v. M.A., supra at paras.11-28). I note also that in M.S., Justice Chapman considered the communications in issue, though no summary appears to have been provided by defence counsel, and defence counsel would not indicate where the records came from, or how they came to be in the possession of the defence.

[14] As Justice Davies explained, the procedure reflects the fact that unless the communications contain personal information for which the complainant has a reasonable expectation of privacy so as to engage s.278.92, there is no obligation on defence counsel to disclose them. It is well-established that the principle against self-incrimination, enshrined in the Charter, includes the requirement that the state establish a prima facie case before an accused can be expected to respond in any fashion, and generally frees the accused from any obligation to make disclosure before trial. See R. v. M.B.P., 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555 and Justice Breen's detailed discussion in R. v. A.R.S., supra. Requiring the defence to disclose the communications in its possession to the Crown and the complainant before trial may impair the ability of the defence to effectively test the Crown evidence, and explore inconsistencies and expose possible lies. Perhaps even more significantly, it may help the Crown advance its case. Some of the communications may be ambiguous or may potentially harm the defence, depending on how the case unfolds. A cross-examiner may decide not to use these communications, while in the midst of cross-examination. Providing them to the complainant in advance of trial not only risks removing their potential effectiveness, but also risks committing the accused to a position that may ultimately prove not helpful. Both concerns are significant in a case like this which, I expect, will turn on credibility.

[15] At the same time, the procedure we followed reflects the reality that defence counsel must make some disclosure in order to litigate the issue of whether the records are caught by the new regime in s.278.92. There is no constitutional challenge to the regime before me. Instead, there is simply an application submitting that it does not apply. I cannot make this determination without knowing what the records are. And judges do not generally make decisions without submissions from both parties. Providing a summary permits the Crown to participate in this threshold application in a meaningful way, although it does make it more difficult for the Crown, requiring, for example, the Crown to make "in the alternative" and hypothetical arguments.

[16] In addition to the communications, and the defence summary of them, we also had the transcript of the preliminary inquiry which consisted of the complainant's evidence. Further, the Crown indicated that the complainant has deleted her electronic communications with the accused.

Do the electronic communications contain personal information for which there is a reasonable expectation of privacy?

The test for whether a communication falls within the definition of "record" in s.278.

[17] In R. v. Jarvis, 2019 SCC 10 at para.60, which is not a s.8 case, the Supreme Court concluded that it follows from the jurisprudence developed under s.8 of the Charter, privacy jurisprudence, and common sense, "that determining whether a person can reasonably expect privacy in a particular situation requires a contextual assessment that takes into account the totality of the circumstances." (emphasis added)

[18] In R. v Mills, 2019 SCC 22 at para.20, the majority noted that the concept of 'reasonable expectation of privacy' includes a normative assessment "about whether Canadians ought to expect privacy" (emphasis in original) in the totality of the particular circumstances at issue. While these comments occurred in the context of a complaint that the state violated s.8 vis-à-vis the individual, I find they are relevant and helpful in considering the meaning of 'reasonable expectation of privacy' in s.278.1 of the Criminal Code.

[19] In light of this jurisprudence, I agree with Justice Davies that whether a record "contains personal information for which there is a reasonable expectation of privacy" must be answered by considering the "totality of circumstances", including whether the complainant ought to expect privacy in the particular circumstances. I also agree with Justice Davies that relevant circumstances include the content of the communication, the manner in which the communication was sent or conveyed, and the nature of the relationship giving rise to the communication. But I would approach and organize these circumstances differently.

[20] I would divide the relevant circumstances into two broad categories: namely, the nature of the information contained in the record, and the context in which the record was created and obtained by the accused. I do this for two reasons. First, I believe it makes sense to begin by looking at the content of the record in light of purpose of the legislation, namely to protect the privacy and equality rights of the complainant. As Justice Moldaver recently reminded us in R. v. Barton, 2019 SCC 33, protecting the privacy and equality rights of complainants remains a vital concern in society, requiring action, including by the courts. The content of a record is what is most important in protecting these rights. Second, the nature of the information will in many, if not most, cases be determinative of the threshold question. For example:

• If the record contains information that falls within the broad definition of "sexual activity" in s.276(4) (once again, "any communication made for a sexual purpose or whose content is of a sexual nature") the procedure set out in sections 278.93 and 278.94 in engaged. There is no need to go on to consider whether there is a reasonable expectation of privacy in the record in the totality of the circumstances.

• If the record falls within one of the enumerated categories set out in s.278.1 (medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries), the procedure set out in sections 278.93 and 278.94 is engaged.

• If the record falls within the further included category of "records containing personal information the production or disclosure of which is protected by any other Act or Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence", the procedure set out in sections 278.93 and 278.94 is engaged.

[21] Only where a record does not fall within one of the above categories is it necessary to go on and consider the context of the record. There is one caveat to this, however. If a record falling outside the above list clearly does not contain personal information, there is no need to go on and consider its context. It falls outside the scope of the scheme. For example, in this case, the Crown acknowledged that to the extent the electronic communications simply concerned making arrangements between the complainant and the accused to meet on a particular date and time, they did not contain "personal information" so as to engage the s.278.92 regime.

[22] Where a record falling outside the above list arguably does contain personal information, I believe it is essential to also look at the context in which the record was created, and obtained by the accused, in order to decide whether there is a reasonable expectation of privacy in the record in the totality of circumstances. All the circumstances, including the content of the record and its context, must be considered cumulatively, and in totality. The context of the record includes circumstances such as the following:

• The relationship between the parties to the record (new friends, casual friends, good friends, old friends, family members, lovers…);

• The manner of dissemination of the record (is it an open platform, a secure platform…);

• The scope of dissemination of the record (does it involve two people, a closed group of intimates, a larger group, a shifting group…).

[23] This contextual assessment is essential because I believe that a "risk analysis" forms an important part of assessing whether there is a reasonable expectation of privacy in the totality of circumstances. I recognize that the Supreme Court in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, emphatically rejected a risk analysis as a legitimate consideration in the context of s.8, noting, among other things, that the risk that the listener will "tattle" on the speaker, is of a different order of magnitude than the risk that the state is listening in and making a permanent recording. While the speaker may contemplate the risk of the former, it cannot reasonably be concluded that he contemplated the risk of the latter. However, outside the s.8 context, that is, where it is not the state that obtained the record, I believe that the risk analysis has an important role to play in assessing whether or not a complainant has a reasonable expectation of privacy in a record. In Duarte itself, the Supreme Court recognized that the risk analysis was compelling, outside the s.8 context:

The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize from that risk. Rather the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words. (para.21) (See also R. v. Marakah, 2017 SCC 59 at para.40) (emphasis added)

[24] More recently, in Jarvis, in the context of interpreting the voyeurism provision in s.162(1) of the Criminal Code, the Supreme Court appears to apply a risk analysis in assessing whether the particular circumstances of a case give rise to a reasonable expectation of privacy. While the majority notes that a risk analysis is not determinative of whether there is a reasonable expectation of privacy in a particular situation (para.68), it appears to be an important consideration. The majority notes, for example, that, ordinarily, one could expect a person to have a lower expectation of privacy in a public place, where the person could expect to be observed, than in a private place, such as a home or washroom where the person could expect near absolute privacy (para.37). In addition, when the majority considered the location where Mr. Jarvis surreptitiously recorded the student, it noted:

There is no dispute that students' expectations of privacy with respect to observation and recordings are different and must be lower in the common areas of a school than when they are in traditionally private locations, such as their bedrooms. In ordinary circumstances, students in the common areas of a school cannot expect not to be observed by others and may also expect to be subject to certain types of recordings…

[25] I appreciate that the fact that an accused possesses the potential "record" in question is not determinative of the analysis, as s.278.92 is explicitly intended to apply to materials in the possession of the accused. But I believe the fact that a complainant chose to share the information found in the record with the accused is a relevant circumstance. In doing so, the complainant can usually be reasonably expected to contemplate a risk that the accused would seek to use that information to defend himself against a subsequent allegation by the complainant. While the nature of that expectation will depend on the particular circumstances, I believe it does bear on a complainant’s expectation of privacy in the record.

[26] Outside the special relationships explicitly enumerated in s.278.1, and the s.8 context, it is our collective expectation that a speaker bears the risk that her listener will disclose her confidence. At common law, for example, spousal privilege rests with the recipient of the information, and is his or hers to waive. It does not rest with the speaker. The common law has been adapted by the Canada Evidence Act, but s.4(3) still protects communications during marriage, and the privilege continues to rest with the recipient:

No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

Application of the test to the communications in this case

[27] I will address the communications in reverse chronological order. A3 is part of a group chat on Whatsapp that occurs in May of 2018. The complainant, the accused and a third person were part of the group chat, though the excerpt placed before me only involves an active exchange between the complainant and the accused. A portion of the communication could fall within the definition of "sexual activity". But the portion that defence counsel wishes to have the option to adduce deals only with social planning. In the circumstances, I do not think it contains personal information. Given this conclusion, there is no need for me to go on to consider how the context affects whether there is a reasonable expectation of privacy. I note, however, that the fact that there is a third party privy to this conversation, in real time, significantly diminishes any expectation of privacy that the complainant could have in the conversation.

[28] Defence counsel describes A2 as a discussion about social planning that occurs on Whatsapp between the accused and the complainant in October 2017. I am not satisfied that is all it contains. It also contains, among other things, a comment by the complainant about an Instagram story posted by the accused, in particular a meme about drug use. In the circumstances, I believe that the record potentially contains personal information about the complainant such that it is necessary for me to go on and consider the context in which the record was created in order to determine whether the complainant has a reasonable expectation of privacy in the record.

[29] The context includes the fact that the record is a print-out of a discussion between the accused and the complainant over Whatsapp in October 2017. The tone is casual and chatty and it appears primarily about what defence counsel described as "social planning" between friends: meeting up for a night out, connecting during that evening, and checking in on each other the next day. Considered in the totality of circumstances, I do not believe that the complainant has a reasonable expectation of privacy in it.

[30] A1 includes 4 conversations between the complainant and the accused over Whatsapp about drug use. The first three occur not long after the complainant and the accused met. (According to the complainant's evidence at the preliminary inquiry, they met over the Labour Day weekend in 2017. The fourth conversation occurs in January of 2018. I am satisfied that drug use is personal information, such that it is necessary to go on and consider the context of the record to decide whether the complainant has a reasonable expectation of privacy in it.

[31] The context includes the fact that the first conversation occurs very soon after the complainant and the accused met. It appears to have been initiated by the complainant on Facebook, but then moved, by the accused, to Whatsapp because it is a more private platform. I do not believe the complainant has a reasonable expectation of privacy in initiating and continuing a conversation about drug use with a near stranger. The fourth conversation is a little different, because it occurs later in their relationship. But again, considered in the totality of circumstances, I do not believe that that the complainant has a reasonable expectation of privacy in it. These circumstances include the fact that the complainant makes no secret of her drug use: it was front and centre at the preliminary inquiry, as I expect it will be at trial.

Conclusion

[32] In sum, in the particular circumstances of this case, I conclude that the records in question do not fall within the definition of record in s.278.1 of the Criminal Code, thus they can be adduced at trial without the need for a hearing under s.278.92.

[33] In light of this conclusion, it is not necessary to consider the alternative position of the defence seeking a ruling on the admissibility of these records. And, as I stated at the outset, I make no such ruling. My ruling at this stage is limited to whether the s.278.92 regime is engaged, and its process needs to be followed in order for the communications to be adduced in any way at the trial. I am not ruling on the actual admissibility or use of the communications at trial. It is still open to the Crown to object, and me to intervene, in the event that the proposed use of these communications at trial engages s.276, or the probative value of the evidence is substantially outweighed by its prejudicial effect.

G. ROBERTS J.

RELEASED: November 20, 2019