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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

NEWMARKET COURT FILE NO.: CR-17-07871-00 DATE: 20200110

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen the Crown – and – A.C. Applicant/accused

Counsel: Phyllis Castiglione, for the Provincial Crown Ian B. Kasper, for the Applicant/accused David Butt, for the complainant.

HEARD: December 10, 2019

Reasons for Decision on Hearing Per Section 278.92 of the Criminal Code - Emails for Cross Examination

SUTHERLAND J.:

Introduction

[1] A.C. has been charged with two counts of sexual assault per section 271 of the Criminal Code.

[2] On October 29, 2019, I heard the application brought by A.C. on whether emails exchanged between him and the complainant were records as defined in s. 278.1 of the Criminal Code. The emails were marked as exhibits at that hearing.

[3] I found that the emails were records and that the procedure outlined in s. 278.92 of the Criminal Code be followed.

[4] Accordingly, I heard A.C.’s application to admit the emails and use same for the purposes of cross-examination. After the hearing per s. 278.92, I endorsed the indictment that the relief requested by A.C. was granted for the sole purpose of cross-examining the complainant on issues relevant in the trial. I also indicated my reasons would follow.

[5] Below are my reasons.

Are the emails admissible for the purposes of cross examination?

[6] Section 278.92(1) of the Criminal Code reads:

278.92(1) Except in accordsance with this section, no record 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 in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 151, 153, 153.1, 155, 160, 170, 171 …

[7] The section goes on to set out the requirements for admissibility and the factors the court shall consider in determining whether the evidence should be admissible in the proceeding.

[8] The emails in question, as stated in earlier decisions (the proposed evidence), are communications between the applicant and complainant concerning the 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 her and 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.

Position of the Parties

[9] A.C. submits that the proposed evidence is relevant to issues at trial being:

(a) the complainant’s animus towards him and a possible motive to fabricate; and

(b) the proposed evidence does not support inferences based on the twin myths or any other discriminatory reasoning.

[10] A.C. further submits that the proposed evidence has significant probative value that is not substantially outweighed by any danger of prejudice to the administration of justice. The proposed evidence are the complainant’s own statements.

[11] Thus, A.C. contends the application meets the procedural requirements of s. 278.93(2) and 278.93(4) and should be admissible at trial for the purposes of cross-examination.

[12] The Crown takes the position that the proposed emails infer the twin myths, are highly prejudicial to the complainant and should not be admissible. At best, one email is relevant, that being the email dated November 20, 2016. If the court determines that the emails in the proposed evidence is admissible for the purposes of the cross-examination, only the one email of November 20, 2016 should be permitted. All the other emails up to and after the November 20, 2016 email should not be permitted to be used for cross-examination. These emails are not relevant.

[13] The complainant takes a different approach. The complainant departs from the submission of the Crown. The complainant contends that the emails are relevant for the limited purpose of cross-examination. The complainant argues that all the emails of the proposed evidence should be admitted in order for the context of the emails is appreciated by the court and the court is then able to appreciate the complainant’s perspective in any specific statement contained in a specific email. The conversation between A.C. and the complainant are interwoven in all the emails. The issue is concerning the “intelligent use” of the proposed evidence. It is not a carte blanche permission that the defence may use the proposed evidence to go “down any rabbit hole.” The proposed emails are limited to intelligent use in cross-examination on issues relevant to the trial that do not offend s. 276 and meet the factors in s. 278.92(3).

Analysis

[14] I accept the submission of A.C. with the proviso put forth by the complainant on the “intelligent use” of the proposed evidence.

[15] I agree that the proposed evidence is relevant on the issues at the trial: the animus of the complainant and the reliability of the complainant’s evidence. I do not accept the submission of the Crown that the proposed evidence infers the twin myths. I fail to see how the proposed evidence infers the twin myths, if the use of the proposed evidence is restricted to “intelligent use”.

[16] Nor do I accept that the proposed evidence is highly prejudicial to the administration of justice. The proposed evidence are emails sent by the complainant to the applicant concerning their relationship, her feelings towards A.C., the ending of their relationship and her demands for the Separation Agreement.

[17] The emails, I agree, have a personal aspect and are private as between the complainant and the applicant. But this alone does not translate that the proposed emails are highly prejudicial to the administration of justice.

[18] I also agree with the complainant that it is not an “all or nothing decision” that is, either all the emails are relevant or none are. In addition, I accept the submission that in order for the court to appreciate the proposed evidence, it cannot be done in isolation. Each email is not separate or can be separated. Context I accept is crucial. The emails are an ongoing conversation. The proposed evidence is not always focused, like any conversation. As the lawyer for the complainant stated, “there are meanderings.” The court must be able to review the entire sequence of the proposed evidence to appreciate the conversation transcribed in the emails.

[19] Furthermore, I have taken the factors set out in s. 278.92(3) into consideration.

[20] I find it is in the interest of justice, including the applicant’s right to full and answer and defence, to admit the proposed evidence. I do not believe that admitting the proposed evidence will discourage the reporting of like offences or discourage a person from obtaining treatment.

[21] I also conclude that the proposed evidence will assist the court in assessing the evidence as a whole and assist in arriving at a just determination of the case. There is minimal prejudice to the complainant’s personal dignity and right to privacy. The proposed evidence reveals the complainant’s feelings and demands, as it pertains to the terms in the drafting of a Separation Agreement. I find that subsection 278.92 (f), is not applicable in the circumstances of this case.

[22] However, keeping in mind the intelligent use of the proposed evidence, and the right of the complainant to personal security and full protection and benefit of the law, this evidence can only be used for issues in the trial, as the animus of the complainant, if any, and the reliability of the complainant’s evidence, her motivation to fabricate. It cannot be and is not an invitation for A.C. to attack the complainant on any twin myths reasoning [^1] or past sexual activity or any other activity that is not strictly and directly related to an issue in the trial. It is not an invitation to go down every possible rabbit hole.

[23] The proposed evidence is therefore admissible for the sole purposes outlined above in the cross-examination of the complainant.

Justice P.W. Sutherland

Released: January 10, 2020

NEWMARKET COURT FILE NO.: CR-17-07871-00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen – and – A.C. Applicant/accused RASONS FOR DECISION ON the HEARING PER SECTION 278.92 OF THE cRIMINAL cODE- EMAILS FOR CROSS EXAMINATION Justice P.W. Sutherland Released: January 10, 2020

[^1]: Twin myth reasoning as described by the Supreme Court of Canada in R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443, at paras. 2, 32 and 33; R. v. Barton 2019 SCC 33, at paras. 55, 56, 57 and 58.