WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
NEWMARKET COURT FILE NO.: CR-17-07871-00
DATE: 20200109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen The Crown
– and –
A.C. Applicant/accused
Phyllis Castiglione, for the Provincial Crown
Ian B. Kasper, for the Applicant/accused David Butt, for the complainant
HEARD: October 29, 2019
REASONS FOR DECISION ON THE RETROSPECTIVITY AND THE MEANING OF RECORD UNDER SECTION 278.1 OF THE CRIMINAL CODE
SUTHERLAND J.:
Introduction
[1] The complainant and applicant exchanged emails prior to the charges in this proceeding.
[2] The applicant had possession of these emails and in June 2018, the applicant produced the emails and used the content of the emails to cross-examine the complainant at the preliminary hearing.
[3] The emails in question were made exhibits at the preliminary hearing.
[4] The applicant wished to use the same emails to cross-examine the complainant at the trial.
[5] In December 2018, the Criminal Code was amended which included amendments to section 278.1, the "rape shield" provisions and the creation of section 278.92.
[6] Just before the commencement of the trial on October 28, 2019, the issue of whether the emails are records pursuant section 278.1 became a live issue for the court's determination. Further, the issue of whether section 278.1 operated retrospectively also became an issue for the court's determination.
[7] After hearing submissions, I advised the applicant, Crown and complainant, with reasons to follow, I found that the emails are a "record" as defined in section 278.1 and thus, the procedure set out section 278.92 will have to be followed and also concluded that section 278.1 was a procedural amendment and did not remove a substantive right of the applicant.
[8] Below are my reasons.
Are the emails a "record"?
[9] Section 278.1 of the Criminal Code defines a "record" as:
For the purposes of sections 278.2 to 278.92, record means 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 provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[10] The emails in question are communications between the applicant and complainant concerning their breakdown of their marriage, the negotiations of the terms of a Separation Agreement and the sentiments of the complainant as it relates to the conduct of the applicant in their relationship. The emails were communications between October 2016 and December 2016. The emails do not contain any information that could be considered sexual activity.
[11] There was no dispute that the emails are a "form of record."
[12] The issue for this court to determine is: do the emails contain "personal information for which there is a reasonable expectation of privacy."
[13] The emails in question have been disclosed to the Crown and the complainant. The emails were made exhibits at the preliminary inquiry and the complainant was cross-examined on the emails at the preliminary hearing. The applicant wishes to cross-examine the complainant at trial on the same emails.
[14] The fact that the emails were made exhibits and used at the preliminary hearing are not, in my opinion, determinative of the issue for the court to decide in this application. The preliminary hearing was conducted before the enactment of the pertinent sections. The court, at the preliminary hearing, did not conduct an analysis as mandated by section 278.92. Thus, the decisions made at the preliminary hearing, I conclude and which is not disputed by the parties to this application, are not binding whatsoever on this court.
Do the emails contain personal information for which there is a reasonable expectation of privacy?
[15] The applicant submits that the emails are not records. The applicant contends that the emails between him and the complainant may be of a personal nature, that is, their relationship and the negotiations of the terms of Separation Agreement, but the emails did not have of a reasonable expectation of privacy. The complainant knew that the emails could be shared by him and further, that if the negotiations did not result in a signed Separation Agreement, the emails could be disclosed to their prospective lawyers.
[16] The Crown disagrees and contends that the emails contained private information and had an expectancy of privacy. The emails dealt with the personal lives of the complainant and the applicant, their relationship and further the complainant had an expectation that the contents of the emails were to remain between her and the applicant. The emails were never considered or intended to be made public. The emails, the Crown contends are records that fall within the definition of section 278.1 of the Criminal Code.
[17] The complainant submits that the records are not free-standing records and as such are not admissible for the truth of their contents. Paragraphs 104-122 of R. v. Bradey[^1] govern the use of the records. The records, while disclosable, have little utility at trial.
[18] I agree with the contention of the Crown.
[19] It appears to me that the emails are records for they contain personal information and that there was a reasonable expectation of privacy.
[20] The emails in question are communications between the applicant and the complainant. Each emails individually do not contain in themselves personal information. But the emails are a sequence of communications between the complainant and the applicant. The sequence of emails, I conclude, are pertinent to one another for they indicate the stream of communication between the applicant and the complainant on their feelings, aspirations, and expectations after the breakdown of their marriage. The stream of emails illustrate the context of the conversation, which was on going. I am of the opinion that the emails cannot be viewed as isolated individual communication but must be viewed as a continued communication between the applicant and the compliant which within that conversation entail personal information, as stated above, of the parties' and specifically the complainant's, feelings, aspirations, and expectations of their marriage and relationship and its breakdown. Hence, I conclude that the emails presented, in their entirety, contain personal information.
[21] The next hurdle is was there a reasonable expectation of privacy in the emails.
[22] In determining whether such an expectation of privacy exits, the court is to take a contextual approach knowing that not all such digital communication will attract a reasonable expectation of privacy, with the understanding that the determination of privacy is not an all or nothing concept.[^2]
[23] In addition, the list of the type of documents in section 278.1 that presume a reasonable expectation of privacy is not exhaustive. Documents not of the same type as listed in section 278.1 can still be protected if the documents contain personal information that gives rise to a reasonable expectation of privacy.[^3]
[24] In my view, in examining expectation of privacy a broad and nuanced approach is required. A specific expressed demand that the communication remain private is not required but if one does exist may be determinative. The desire for privacy may be inferred not only for the content of the communication itself, the means of the communication but also from the circumstances between the parties to the communication. The relationship between the parties to the communication, the circumstances that surround the giving of the communication and the purpose or reason of the communication.
[25] In the circumstances of this case, the relationship between the parties was that of husband and wife in the circumstances of a breakdown of their marriage and the content of the communication dealt with their feeling, aspirations, expectation, and demands in the negotiation of terms in Separation Agreement along with expression of feelings and on their relationship, the reason for the breakdown of the marriage and the situation the breakdown left the complainant.
[26] Notwithstanding that the emails were sent to the applicant, I find that at the time of the sending of the emails the complainant had a reasonable expectation of privacy. That expectation of privacy was not waived by the complainant.
[27] I agree with the statement of H. MacNaughton J. in R. v. R.M.R.:
- In my view, it is too simplistic to conclude that by sending the text messages to R.M.R., D.H. has waived any privacy interest she had in them. Her expectation of privacy was not waived for all purposes. For example, D.H. would not expect that her text exchanges would be disclosed by R.M.R. publicly, or posted to the internet, or sent to a potential employer, or, for that matter, used to impeach her credibility on matters that are not relevant to the charge in question.
[28] I conclude that the complainant would not have expected that the emails between her and the applicant would have been disclosed publicly or posted publicly such as on the internet.
[29] As stated above, the applicant did not take the position that the use of the emails at the preliminary hearing and the making of these emails as a marked exhibit at that hearing released or waived any expectation of privacy on those emails.
[30] Thus, I do find that the emails do have a reasonable expectation of privacy.
Does Section 278.1 Operate Retrospectively?
[31] The alleged offences took place in 2007 and 2009-2010. The applicant was charged on September 27, 2017. The applicable legislation came into effect on December 3, 2017.
[32] The applicant argues that section 278.1 does not operate retrospectively and violates his right to full answer and defence; the right to remain silent and right against self-incrimination.
[33] The Crown submits that section 278.1 is procedural in nature and not substantive and does not affect the applicant's right to full answer and defence. The section deals only with the admissibility of evidence.
[34] I agree with the Crown.
[35] In R. v. Dineley[^4], the Supreme Court of Canada reviewed amendments to section 258(1) of the Criminal Code and found that section 258(1) affected a substantive right of the defence and the section did not operate retrospectively. In coming to that conclusion, the Supreme Court of Canada reiterated the principle that statutory enactments that relate to evidentiary or procedural matters and do not remove a substantive right/defence of the accused, operate retrospectively. The Supreme Court of Canada cautioned that procedural provisions, in their application, may affect substantive rights and if that is the case, the procedural provision is not purely procedural and do not operate retrospectively.[^5]
[36] Section 278.1, in my opinion, does not affect a potential defence nor does it alter the essential elements of the offences that the applicant is charged. The substance of the law remains the same. The Crown is still obligated to prove the elements of the offences beyond a reasonable doubt. The applicant's right to full answer and defence has not been compromised.
[37] Section 278.1, I conclude deals with a purely procedural matter of the admissibility of evidence. The section deals the definition of "record" for the purposes of whether a hearing is required to determine the admissibility of the "record" per section 278 to 278.92.
[38] I do not agree with the submissions of the applicant that a substantive or vested right has been removed.
[39] Consequently, I am not persuaded by the able submissions of the applicant that section 278.1 does not operate retrospectively.
Disposition
[40] I therefore find that the emails marked as Exhibits 1 and 2 on this application are records per section 278.1 and the procedure set out in section 278.1.92 of the Criminal Code be followed.
[41] I further find that section 278.1 of the Criminal Code does operate retrospectively.
Justice P.W. Sutherland
Released: January 9, 2020
NEWMARKET COURT FILE NO.: CR-17-07871-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
A.C.
Applicant/accused
REASONS FOR DECISION ON the RESTROSPECTIVITYY AND MEANING OF RECORD UNDER SECTION 278.1 of the Criminal Code
Justice P.W. Sutherland
Released: January 9, 2020
[^1]: 2015 ONCA 738. [^2]: R. v. Quesnelle, 2014 SCC 46, at paras. 27, 29 and 37; R. v. Marakah, 2017 SCC 59, at para. 5; R. v. Clifford, 2002 CarswellOnt 703 (CA), at para. 52. [^3]: R. v. R.M.R., [2019] BCSC 1093, at para. 26. [^4]: 2012 SCC 58. [^5]: Ibid at paras. 10, 11, 12, 15 and 16.