Court and Parties
Date: 2020-03-26 Superior Court of Justice - Ontario
Re: R. v. Andrew White
Before: Cavanagh J.
Counsel: Maggie Brown, for the Crown/Respondent Morrie Luft, for the Defence/Applicant
Heard: March 13, 2020
Endorsement
[1] The Applicant brings an application for direction and a declaration that electronic messages exchanged between the Applicant and the complainant, A.S., and electronic messages exchanged in a “group chat” between the Applicant, the complainant, and her mother are not “records” captured by s. 278.92(1) of the Criminal Code.
[2] The Applicant is charged with one count of sexual interference and one count of invitation to sexual touching. The conduct allegedly occurred from May 1, 2015 to June 2017.
[3] The Applicant was in a relationship with the complainant’s mother and he lived with the complainant and her mother for several years. The relationship ended on July 7, 2017 when the complainant, who was then 13 years old, alleged that the Applicant had sexually assaulted her during the above-noted time period.
[4] The first group of electronic messages are between the Applicant and the complainant and cover the time period from November 2014 to July 7, 2017. The second set of electronic messages are in a group chat format between the Applicant, the complainant and the complainant’s mother between December 25, 2014 and July 7, 2017. All communications in these electronic messages are through an instant message platform called Google Hangout.
[5] The Applicant seeks direction as to whether these messages are records within the meaning of the term “record” in s. 278.1 of the Criminal Code. If the electronic messages are “records”, the Applicant is required to bring an application pursuant to the regime set out in section 278.92 of the Criminal Code.
[6] This type of application was made in R. v. W.M., 2019 ONSC 6535. The Applicant asks me to follow the procedure that was followed by Davies J. in that case. The Crown does not disagree with this procedure.
[7] In W.M., Davies J. asked counsel for the applicant to file a copy of the electronic messages as a sealed exhibit on the application for directions, without permitting the Crown to review them. Davies J. provided as much information about the messages as possible about the messages without disclosing the content of them. Davies J heard submissions from counsel for the applicant and from Crown counsel about whether the electronic messages qualify as records according to the definition of the term “record” in section 278.1 of the Criminal Code. Davies J. followed this procedure having regard to the right of the applicant to keep the electronic records confidential until he chooses to use them at trial unless the complainant has a reasonable expectation of privacy in them, and the applicant’s right to know the case he must meet before he is called upon to respond.
[8] The term “record” is defined in s. 278.1 as follows:
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 a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[9] In accordance with the procedure outlined in W.M., I reviewed the two sets of electronic messages. There is no suggestion that the messages are privileged.
[10] The Crown has not reviewed the messages. At the hearing of this application, I confirmed to Crown counsel the following information provided by the Applicant, which is supported by my review of the messages:
a. There are two sets of messages. The first set is between the complainant and the Applicant between November 8, 2014 and July 7, 2017. The second set of messages are in a “group chat” involving the complainant, the complainant’s mother, and the Applicant between December 25, 2014 and July 7, 2017. b. The messages were exchanged through the Google Hangout instant messaging platform. c. The messages do not contain information that could constitute other “sexual activity” for the purpose of s. 276 of the Criminal Code.
[11] This application deals 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. The question before me is whether the electronic messages contain personal information for which there is a reasonable expectation of privacy at the time of this application. Unless the complainant has a reasonable expectation of privacy in the messages, the Applicant is entitled to keep them confidential until he uses them at trial. See W.M., at paras. 20 and 29.
[12] In W.M., Davies J. held that the determination of whether someone has a reasonable expectation of privacy is fact specific and that this determination is based on a normative analysis that asks whether an independent, informed observer would think that the complainant ought to have an expectation of privacy over the information, given the circumstances. Davies J. considered four factors in her assessment:
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 the parties to the messages. d. The policy implications of finding that there is no reasonable expectation of privacy.
[13] I address these factors in my analysis.
[14] With respect to the first factor, the messages do not contain 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 Criminal Code. There is also no risk that making the content of the messages public will undermine the complainant’s personal dignity or security. The messages contain personal information in the sense that they disclose information about the complainant’s day-to-day interactions with the Applicant and the complainant’s mother about her daily activities. They do not contain information of a highly personal or intimate nature.
[15] With respect to the second factor, the messages were sent and received using a commonly used instant messaging platform and the Applicant was an intended recipient of messages sent by the complainant. The complainant chose to share the information conveyed in the messages with him. In so doing, she knew that she was creating an electronic record that the Applicant could save. There is no suggestion that the complainant sent the messages to the Applicant for any limited or specific purpose. Based upon my review of the messages, there is no express or implied request by the complainant that the messages be kept private and not used or further disseminated.
[16] With respect to the third factor, the Crown submits that the nature of the relationship between the complainant, a young person who was between the ages of 10 to 13 when the messages were sent, and the Applicant (who was in a relationship with the complainant’s mother) and, in respect of the group chat, the Applicant and the complainant’s mother, is such that the complainant would have had a reasonable expectation of privacy in the electronic messages. In this respect, the Crown submits that this kind of relationship is different than the relationship in W.M., which was between two adults. The Crown submits that where the relationship is between a child and a parent, the law should recognize a heightened expectation of privacy.
[17] I do not agree that the relationship between a child and a parent is such that there would invariably be a reasonable expectation of privacy in communications of any sort, even routine communications about day-to-day family matters. In each case, the relevant factors must be considered in their particular factual context. In this case, I do not regard the fact that the complainant was a minor when the messages were sent to the Applicant to be a factor that, alone, leads to the conclusion that the records contain personal information for which there is a reasonable expectation of privacy.
[18] With respect to the fourth factor identified in W.M., the policy implications of the conclusion that the complainant has a reasonable expectation of privacy in the records, Davies J. noted that an expansive interpretation of the phrase “reasonable expectation of privacy” as used in the definition of record in s. 278.1 of the Criminal Code may infringe an accused’s rights under s. 7 of the Charter. Davies J. concluded at para. 55 of W.M. that the potential Charter implications support a more narrow interpretation of this phrase. I adopt this view.
[19] When I consider the innocuous content of the messages on their face and the manner in which they were sent to the Applicant, through a commonly used instant messaging platform, and even when I have regard to the fact that the complainant was a minor when the messages were sent to the Applicant who was in a relationship with the complainant’s mother and, in respect of the group chat messages, also to her mother, I conclude that the electronic messages do not contain personal information for which the complainant has a reasonable expectation of privacy.
[20] For these reasons, I conclude that the electronic records do not fall within the definition of “record” in s. 278.1 of the Criminal Code. As a result, the Applicant is not required to bring an application under s. 278.93 before using these records at trial.