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Court File and Parties

COURT FILE NO.: CR-19-50000141-0000 DATE: 20200311

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – L.H. Complainant Respondent – and – R.S. Applicant

Counsel: Christian Moreno and Michael Townsend, for the Respondent Emily Dixon, for the Complainant Respondent Anthony De Marco, for the Applicant

HEARD: February 10, 11, 12, 13, 14, 17, 18, 19 and 20, 2020

JUSTICE S. NAKATSURU

RULING ON SS. 278.92 and 278.94 application

[1] R.S. is charged with two counts of sexual assault and one count of choking with intent to facilitate a sexual assault. Before trial, he brought an application to introduce evidence of text messages and an email between R.S. and the complainant, L.H. I partially granted the application. These reasons more fully explain why.

[2] The basic factual background is found in my reported s. 276 application: R. v. R.S., 2020 ONSC 1328.

1. The Statutory Framework

[3] On this application, I must consider a relatively new provision of the Criminal Code. Section 278.92(1) states that no record that contains personal information for which there is a reasonable expectation of privacy relating to a complainant that is in the possession or control of the accused and which the accused intends to adduce, shall be admitted in evidence unless certain procedures are followed, and certain conditions are met.

[4] Before the evidence is admissible, I must be satisfied that: (1) if admissibility is subject to s. 276, the conditions in that section are met; or (2) in any other case, the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice.

[5] In determining admissibility, I am required to take into account the following factors:

a. the interests of justice, including the right of the accused to make a full answer and defence; b. society’s interest in encouraging the reporting of sexual assault offences; c. society’s interest in encouraging the obtaining of treatment by complainants of sexual offences d. whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; e. the need to remove from the fact-finding process any discriminatory belief or bias; f. the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; g. the potential prejudice to the complainant’s personal dignity and right of privacy; h. the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and i. any other factor that the judge, provincial court judge or justice considers relevant.

The Definition of Record Under s. 278.1

[6] The defence relies upon the decision in R. v. W.M., 2019 ONSC 6535 and argues that the text messages and email in his possession do not fall within s. 278.1 as they do not contain personal information for which there is a reasonable expectation of privacy.

[7] I find it unnecessary to resolve this question. Unlike W.M., in the case at bar, the defence gave notice to L.H., disclosed the particulars of the texts and email he wished to adduce, and conducted a hearing under ss. 278.93 and 278.94. In these circumstances, given that the application was argued on the merits, I will decide the application under s. 278.92(2) and (3).

The Text Messages

[8] The text messages deal with events proximate to the date of the offences and the intervening period. They relate to communications pertinent to setting up the occasions when the sexual assaults are alleged to have occurred and to discussions about what transpired afterwards.

[9] In my view, they are relevant to L.H.’s credibility when she alleges that she did not give consent to the sexual activities that are the subject-matter of the charges. They are also relevant to the narrative of how these sexual assaults are said to have taken place.

[10] I further find that they have significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice.

[11] Both the Crown and L.H. oppose the admission of the evidence. They forcefully argue that the messages have little relevance or probative value and are highly prejudicial. They submit that the admission of texts would merely enforce stereotypes of the “perfect victim” given that the defence wishes to argue that the ongoing contact is relevant to L.H.’s credibility or to the issue of whether she consented or not.

[12] Respectfully, I must disagree. I do agree that myths and stereotypes should not inform how the messages should be interpreted. There is no one way that a victim of sexual assault reacts to being assaulted. It is a myth to suggest that ongoing contact between the perpetrator and the victim means that a sexual assault did not occur. Significant care must be taken in terms of how such evidence is properly used by the trier of fact.

[13] However, this does not mean such evidence must always be inadmissible. All the factors in s. 278.92(3) should be carefully considered.

[14] With respect to the text messages, I find that they are important to the defence’s ability to make full answer and defence.

[15] Regarding the December 25, 2017 offence, there are numerous texts between R.S. and L.H. afterwards. The communication is commenced by L.H. texting a thanks to R.S. for taking her out the night of the alleged sexual assault. Then there is joking about the side-effects of the less than palatable food they ate that night. On the days following, there are discussions between the two when L.H. believed she may have been impregnated by the sexual encounter of December 25, 2017. R.S. texts his willingness to be a support for her. L.H. finds this “adorable”. Finally, at one point they discuss a desire to be just platonic friends after having had sex on December 25th.

[16] I find that there is significant probative value to these messages. While there is no one way that victims respond to being sexually attacked and ongoing contact is not uncommon, the content of these text messages shows relevant discussions about what happened the very night of the alleged sexual assault. The defence submits that they are inconsistent with L.H.’s position that she did not consent and loudly objected to the sexual activity. While she may well have a good explanation for these messages, I find that the defence should be entitled to use them in cross-examination.

[17] Regarding the texts of March 25, 2018, they too are very probative. They begin shortly after the sexual assault is said to have happened. In the texts, L.H. apologizes for what happened. R.S. responds with laughter and says don’t apologize as L.H., her neighbor, or R.S. did nothing wrong in his view. L.H. tells R.S. to get home safe and that she will deal with the embarrassment. She texts “HaHaHa and LOL.”

[18] Again, while L.H. may have convincing explanations for this exchange of communication, the defence’s right to make full answer and defence is significantly engaged given his position that these texts are inconsistent with someone who was sexually assaulted. While a proper assessment of these texts must eschew stereotypical thinking, nonetheless, there is a reasonable basis for the defence position.

[19] I further find that there is a reasonable prospect that the evidence will assist in arriving at a just determination. The texts are accurate evidence of what was said between L.H. and R.S. They can also be used to refresh memories. Without them, L.H. will be left trying to remember what was communicated some two years ago.

[20] In terms of prejudice to L.H.’s personal dignity and right of privacy and her right to personal security and the protection of the law, it must be remembered that these are text messages that she voluntarily sent to the accused. Any assertion of a reasonable expectation of privacy must be assessed in that context. L.H. chose the words she sent. This is not a record whereby some third party noted or is interpreting what she said. As an autonomous individual, it is not an unfair intrusion into L.H.’s privacy to have her explain what she meant by these texts. Texts which are relevant to the issues that the jury must decide.

[21] I agree that some jurors may not be well-versed about how victims of sexual assault react. The concern about discriminatory belief and bias engendered by the admission of text messages such as these is a valid one. That said, the jury will be properly warned and instructed about their use.

[22] Further, I cannot see any reason why the texts would unduly create sentiments of prejudice, sympathy, or hostility in the jury.

[23] There is no concern about encouraging the obtaining of treatment by complainants of sexual offences. These are not treatment or counselling type records.

[24] In terms of society’s interest in encouraging the reporting of sexual assault offences, I find this is a neutral factor. I agree that cross-examination is not a pleasant experience. Having to be subjected to cross-examination on a number of text messages does not make it easier. On the other hand, when L.H. sent these texts to R.S., it should not be a surprise to her or any other complainant of sexual assault, that they may be held accountable for them. The text messages were knowingly directed to the person accused of that crime. I do not find such circumstances would discourage the reporting of sexual assault offences. Especially when many of the texts relate directly to the subject-matter of the offences and not some collateral issue.

[25] Given the importance of the defence’s right to make full answer and defence in using these texts in cross-examination and the attenuated force of some of the other factors is set out in s. 278.92(3), I find that the text messages are admissible.

The Email dated March 22, 2016

[26] While on the original application the defence wanted a number of emails adduced into evidence, at the hearing, R.S. restricted himself to one email.

[27] Looking at the email, I find that it falls within the meaning of s. 276(4) as sexual activity. It is not about the subject-matter of the offences. It is communication whose content is of a sexual nature. The email describes an erotic dream of L.H. involving R.S. where she asks R.S. to dominate her. In the dream, he did so on two occasions. L.H. describes herself as being “horny” in that email. In my view the email’s content is of a sexual nature. Thus, it is subject to the requirements of s. 276.

[28] No s. 276 application was brought for the admission of this email. On that basis alone, the defence application can be dismissed.

[29] Alternatively, had I considered a s. 276 application for this email on the merits, I would have dismissed it.

[30] Admission of this evidence is contrary to the prohibition in s. 276(1)(a). This evidence has no relevance to the issue of whether L.H. consented to the sexual activities that form the subject-matter of the offences except through the false inference that given L.H., in the March 22, 2016 email, indicated an erotic desire for domination, she was more likely to have consented to the sexual activities that form the charges before the court. Put another way, due to the sexual nature of the communication, the admission of this email is being used to support an inference that she was more likely to have consented to the rough or aggressive sex that underly the charges. This is proscribed by s. 276(1)(a).

Justice S. Nakatsuru Released: March 11, 2020

COURT FILE NO.: CR-19-50000141-0000 DATE: 20200311 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – L.H. Complainant Respondent – and – R.S. Applicant

REASONS FOR JUDGMENT NAKATSURU J. Released: March 11, 2020