NEWMARKET COURT FILE NO.: CR-18-04996-0000
DATE: 20200325
CORRECTED DATE: 20200331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.M.
Applicant
Shambavi Kumaresan and Samantha Peterson, Counsel for the Respondent
Franklin Lyons and Tamar Bitton, Counsel for the Applicant
HEARD: March 13, 2020
Corrected Decision: The text of the original Ruling was corrected on March 31, 2020 and the description of the corrections is appended.
IN CAMERA
RULING IN RELATION TO MATERIAL
IN THE POSSESSION AND CONTROL OF THE ACCUSED
CHRISTIE J.
Overview
[1] On December 13, 2018, several amendments to the Criminal Code, through the enactment of Bill C-51, came into force. One of those amendments related to the admissibility of “records” relating to a complainant in the possession or control of an accused. The newly enacted s. 278.92 made such records presumptively inadmissible.
[2] By virtue of s. 278.92(1) of the Criminal Code, the accused who is in possession of a “record” as defined in s. 278.1, and who wishes to adduce that record, must bring an application to determine whether the record is admissible. In order to be admissible, the evidence must meet the requirements in s. 278.92(2), which requires:
if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
in any other case, that the evidence 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.
[3] In making the determination under s. 278.92(2), the court must consider the factors in s. 278.92(3).
[4] The application in this case, however, deals with a more preliminary question.
[5] The applicant, the accused, A.M., is in possession of WhatsApp messages between the complainant and the applicant. There is no reference to these types of communications being a “record” as it is defined in s. 278.1 of the Criminal Code.
[6] The applicant has brought an application requesting an order that sections 278.1 and 278.92-4 of the Criminal Code do not apply with respect to the WhatsApp messages in the possession of the accused. The applicant contends that these messages are not a “record” as defined in s. 278.1, as such material is not listed in the section, and the complainant has no reasonable expectation of privacy in the WhatsApp messages that were voluntarily exchanged with the applicant, innocuous in nature, and not obtained surreptitiously. Further, the applicant requested that he not be required to disclose the messages in advance to the complainant and the Crown in order for this determination to be made.
[7] In the alternative, if the court determines that the material in the hands of the accused amounts to a record as defined in s. 278.1 of the Criminal Code, the applicant requests a hearing under s. 278.92-4 of the Criminal Code to determine the admissibility of the WhatsApp messages at his trial. Sections 278.93 and 278.94 set out a procedure, whereby the defence must bring an application for a hearing that must be in writing and must set out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”. If the court decides to hold a hearing, the complainant has a right to participate and to be represented by counsel. At that stage, the complainant would receive a copy of the written application.
[8] The respondent, the Crown, takes the position that text communications do fall within the scope of “records” and the complainant may have a reasonable expectation of privacy. The Crown’s position is that they need to view the communication in order to assist the court on the issues it needs to determine. The Crown agreed to undertake, at the threshold stage, not to show or describe the communications to the complainant. Of course, if a hearing is ordered, the complainant would be entitled to see the communication and to participate in the hearing.
[9] The two issues to be determined at this point are:
Is the Crown entitled to receive the proposed material in order to make submissions as to whether the material amounts to a “record” as defined in s. 278.1?
Is the material in the hands of the accused, that is sought to be introduced, a “record” as defined in s. 278.1; in other words, does it contain “personal information for which there is a reasonable expectation of privacy”.
[10] It should be noted that prior to oral argument on the first question, this court did not review the material, which had been sealed in an envelope and filed with the court. After determining that the answer to question #1 was “no”, in that the Crown was not entitled to see the material, but before hearing argument on question #2, the court did review the material.
[11] With respect to question #1, counsel were advised only of the position of the court, with reasons to follow. Those reasons are included as part of this ruling.
Background and Allegations
[12] The applicant, A.M., is charged with a number of criminal offences, including:
• Sexual assault – September 15, 2017
• Uttering a threat of death – September 15, 2017
• Assault – September 21, 2017
• Uttering threat of death – September 21, 2017
• Assault – September 22, 2017
• Uttering threat of death – September 22, 2017
• Sexual assault – September 11, 2017 – October 2, 2017
• Uttering a threat of death – January 17, 2018
[13] These charges are all in relation to P.U., who A.M. was in a domestic relationship with, in fact married to, at the relevant time.
[14] The complainant was born and raised in Canada, while the applicant was born and raised in India. Their marriage was arranged through their families. They began speaking with each other through various social media applications, such as Skype and WhatsApp, in December 2015. The first time the complainant and the applicant met in person was when the complainant flew to India with her parents to marry the applicant. They did get married in India on August 6, 2016.
[15] After the marriage, the complainant stayed in India for a few weeks, then returned to Canada due to work obligations. The complainant and the applicant continued to converse through WhatsApp and Skype. The complainant returned to India in the beginning of February 2017 and again spent time with the applicant. The complainant returned to Canada at the end of February 2017.
[16] Between February 2017 and September 11, 2017, the parties continued to converse through Skype and WhatsApp.
[17] The applicant moved to Canada on September 11, 2017. The complainant sponsored the applicant and they lived in her parent’s home.
[18] The complainant testified during the preliminary hearing that she was happy with their relationship in India. However, their relationship changed when the applicant moved to Canada on September 11, 2017, at which time she alleged that he became abusive toward her. Specifically, the complainant alleged that:
On September 11, 2017, the applicant sexually assaulted her in the car after she and her parents picked the applicant up from the airport;
On September 15-16, 2017, the applicant sexually assaulted her and threatened her at her parent’s home;
On September 21, 2017, the applicant threatened and assaulted her;
On September 22, 2017, the applicant threatened her;
On October 1, 2017, the applicant sexually assaulted her;
On October 2, 2017, the applicant threatened to kill her;
On January 15, 2018, the couple were supposed to move into their own apartment but according to the complainant, the applicant refused. On January 17, 2018, the complainant unsuccessfully attempted to obtain her rent deposit back. The applicant was upset and threatened to kill her and her parents.
[19] The complainant reported allegations to her parents on January 17 or 18, 2018. She went to her aunt’s house and telephoned the police in Peel Region, however was upset and unable to speak to the police at that time. On January 24, 2018, the complainant attended the police station in Vaughan and gave a statement.
[20] On January 31, 2018, the applicant was arrested.
The Legislation
[21] On December 13, 2018, several amendments to the Criminal Code, enacted by Bill C-51, came into effect. The newly enacted statute amended the procedure that governed previous sections 276 and 278, connecting the prior sexual activity provisions with the records regime. The amendments changed the landscape of the existing procedure and created an obligation on the defence where materials are already in their possession.
[22] The amended and newly enacted provisions must be analyzed with a consideration of the legislative purpose and legal context within which the legislation was enacted. This legislation is part of the continuing effort to improve the response of the justice system to sexual violence, and to increase public confidence in that response. Parliamentarians were aware of the balance that needed to be achieved in drafting this legislation. Marco Mendicino, former Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib., House – Concurrence at Report Stage, December 11, 2017 stated:
First, it respects the fair trial rights of the accused in that it does not prevent relevant evidence from being used in court. The Supreme Court has already recognized that an accused’s right to full answer and defence does not include a right to defence by ambush.
Second, it acknowledges the privacy interests of a complainant. While privacy interests do not trump all else, the regime seeks to acknowledge that victims of sexual assault and other related crime, even when participating in a trial, have a right to have their privacy considered and respected to the greatest extent possible.
[23] Further, the words of the Honourable Jody Wilson-Raybould, former Minister of Justice and Attorney General of Canada, before the Standing Committee on Legal and Constitutional Affairs, stated on June 20, 2018:
Together, Bill C-51’s proposed sexual assault amendments reflect the critical need to respect all interests in a criminal trial: the rights of the accused; the truth-seeking function of courts; and the privacy, security and equality interests of the victim.
In drafting this bill we sought to ensure that we always consider in the back of our minds the balance required, as I said in my comments, in terms of the rights of the accused to full answer and defence, and of ensuring that we respect and provide dignity to victims of sexual assault.
[24] After this new legislation came into force, the Supreme Court of Canada reinforced the need to improve the response of the justice system to sexual violence. As stated by Justice Moldaver in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 in the opening paragraph:
We live in a time where myths, stereotypes and sexual violence against women – particularly indigenous women and sex workers – are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating the consequences can be. Without a doubt, eliminating myths, stereotypes and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can – and must – do better.
[25] It is against this backdrop that this court must consider and decide upon this application brought by the applicant.
[26] With respect to the obligation on the defence, the newly enacted sections read as follows:
Admissibility – accused in possession of records relating to complainant
278.92 (1) Except in accordance 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, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
Requirements for admissibility
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) in any other case, that the evidence 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.
Factors that judge shall consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(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.
[27] Further, s. 278.93 and s. 278.94 provide a framework for how these applications will proceed. The first step is quite simple, in that it is about the form and content of the application. The application must be triggered by the accused requesting a hearing under section 278.94 to determine whether the evidence is admissible. The application must be in writing, with copies given to the Crown and to the court, setting out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”. The judge then decides whether to hold a hearing based on the guidance from s. 278.93(4), the main consideration being whether the evidence sought to be introduced is capable of being admissible under subsection 276(2). Up to this point, there is no involvement by the complainant. However, at the hearing, if one is granted, as governed by s. 278.94, the complainant, while not compellable, may appear and make submissions and has a right to be represented by counsel. At the hearing, the court must determine whether the evidence is admissible under subsection 276(2) or s. 278.92(2)
[28] Justice Doody in R. v. Barakat, [2019] O.J. No. 705 (C.J.), para 18, and Justice Jackson in R. v. Francis, 2019 SKPC 67, paras 12-14, discussed what it meant to be “capable of being admissible under subsection 276(2)”. At this initial stage, prior to a hearing occurring, it is only a facial consideration. Both Barakat and Francis discuss the fact that the threshold of “capable of being admissible” is low and that the complainant has no standing.
[29] At stage two, the hearing held pursuant to s. 278.94, admissibility largely depends on whether s. 276 is engaged, and the court must go through that appropriate analysis, ensuring that the evidence is not being sought to be introduced for inappropriate reasons. If s. 276 is not engaged, pursuant to s. 278.92(2), the evidence must be relevant and there must be significant probative value that is not substantially outweighed by the prejudice. At this stage, the complainant is given notice, a copy of the application record, and can make submissions on her own or through counsel.
[30] It is only at this second stage, where it is already established that a reasonable expectation of privacy exists, that the complainant is given notice and permitted to participate; the reason being that, at this point, the complainant’s privacy and dignity are engaged. By this point, the court has already made a finding that she has a reasonable expectation of privacy or it is obvious from the list in the legislation.
[31] Therefore, it would seem clear that the notice to the complainant and the involvement of the complainant only solidify when the reasonable expectation of privacy is recognized, and where a court has already concluded that the evidence sought to be adduced is capable of being admissible under subsection 276(2).
[32] From a brief review of the legislation, it is clear that different considerations and different interests apply at the various stages. It is important to keep this in mind in determining what interests are engaged in the application before this court.
The Process for Determination of Whether Material is a “Record”
[33] Before following the procedure set out in the legislation, it must be clear that the matter falls within the scope of the legislation. At this point, in the case at bar, there has been no determination whether this legislation is engaged. There has been no determination that the material in the possession and control of the defence is a “record”.
[34] As for what constitutes a “record”, this is set out in s. 278.1. The section reads as follows:
278.1 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.
[35] The first consideration, therefore, must be whether the material in the hands of the accused is a “record” as defined by s. 278.1. Quite simply, if it is a record, then the legislation applies and the proper procedure as set out in that legislation must be followed in order for the record to be admissible. However, if the material is not a record, then clearly this legislation does not apply, and issues of admissibility would be determined in the regular course.
[36] It is obvious that when dealing with material in the hands of the accused, the process has multiple steps, as it does when dealing with material in the hands of a third party. There are different considerations at each stage and different obligations at each stage. Merging the considerations or the interests involved for each stage would be problematic and must be avoided. The threshold issue of whether something is a “record” and the ultimate issue of whether it is admissible are two discreet inquiries. The interests of the complainant are different at each stage. “Records” in the hands of the accused are presumptively inadmissible, as per s. 278.92, whereas other material in the hands of the accused does not start with such a presumption. It is therefore essential to ensure that the material is in fact a “record” before embarking on this inquiry as there are certain consequences that flow.
[37] “Records” in the possession or control of the accused are subject to a two-step process to determine admissibility. However, the admissibility hearing is only reached if the material is a “record”. Upon entering into this two-stage process, a determination has already been made that a reasonable expectation of privacy exists. If the documents are not “records”, in other words, the complainant has no reasonable expectation of privacy in them, there is no countervailing privacy and dignity rights to be weighed against the fair trial rights of the accused. This is why there is no right for the complainant to make submissions. The right to make submissions only materializes after the reasonable expectation of privacy exists.
[38] Given the interests that are at play once this legislation is engaged, it is essential that the court seriously consider whether the material in the possession and control of the accused is a record at all. This determination should not be made lightly.
[39] None of this legislation assists in determining the process to follow when there is an issue about whether the material in the hands of the accused even amounts to a record. Prior to the court making such a determination, no privacy interest is engaged. Based on the fact that the court must do some initial screening of the matter before the complainant is entitled to get involved, as set out in s. 278.93(4), there would appear to be no rational basis upon which to argue that the complainant should be involved at an even earlier stage to determine whether the material meets the definition of a record.
[40] The more difficult question, however, is whether the Crown should be entitled to see the material at this very early stage in order to make submissions as to whether the material held by the accused “contains personal information for which there is a reasonable expectation of privacy”. Certain overarching principles must be kept in mind.
[41] The defence is generally entitled to keep documents confidential until choosing to use them at trial. This notion is rooted in the different roles played by the Crown and defence. In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at paras. 11-12:
[11] It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. states, at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[12] I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.
[42] On the other hand, the accused does not have a right to trial by ambush. In R. v. Darrach, 2000 SCC 46, the court stated:
[54] The accused specifically objects to having to submit the affidavit on the grounds that it compels him to reveal his defence and to disclose evidence he hopes to call at trial. He claims that this violates his right to silence. The right to silence in s. 7 properly speaking comprises the right to silence before trial and the privilege against self-incrimination at trial; it is inaccurate to speak of an absolute right to silence at the trial stage of the criminal process (R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 164). In White, supra, at paras. 40-41, Iacobucci J. summarised the Court's position on this subject:
It is now well-established that there exists, in Canadian law, a principle against self-incrimination that is a principle of fundamental justice under s. 7 of the Charter... .
The principle against self-incrimination was described by Lamer C.J. in Jones, supra, at p. 249, as "a general organizing principle of criminal law". The principle is that an accused is not required to respond to an allegation of wrongdoing made by the state until the state has succeeded in making out a prima facie case against him or her. It is a basic tenet of our system of justice that the Crown must establish a "case to meet" before there can be any expectation that the accused should respond: P. (M.B.), supra, at pp. 577-79, per Lamer C.J., S. (R.J.), supra, at paras. 81 to 83, per Iacobucci J.
The right not to be compelled to testify against oneself is specifically protected by s. 11(c); the general principle against self-incrimination resides in s. 7.
[55] Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above, the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence is going to raise the complainant's prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush. The Crown as well as the Court must get the detailed affidavit one week before the voir dire, according to s. 276.1(4)(b), in part to allow the Crown to consult with the complainant. The Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused's s. 11(c) right not to be compelled to testify against himself nor his s. 11(d) right to be presumed innocent are violated by the affidavit requirement. This is borne out by the way in which the admissibility procedure operates.
[43] There are certainly instances in which the accused’s right not to disclose any information will have to give way – such as an alibi, expert evidence, or in the context of prior sexual activity evidence. However, there is no question that these instances have been determined to be necessary in those particular circumstances, and those instances are limited.
[44] The question here is whether it is necessary for the Crown to have the proposed material at this stage in order to make submissions to the court on whether those materials amount to a “record” as defined in s. 278.1.
[45] In the case of R. v. W.M., 2019 ONSC 6535, the defence was in possession of Facebook messages that it wished to adduce at trial. Similarly, to the case at bar, the court had to conduct an analysis of whether there was a reasonable expectation of privacy. In considering the appropriate procedure to follow, including whether the Crown was entitled to the messages in order to make this threshold argument, the Court looked at a number of different contexts in which one of the parties is required to make submissions without having the actual material in their possession:
• R. v. Chaplin 1995 CanLII 126 (SCC), [1994] S.C.J. No. 89 – where the Crown claims privilege over material in their possession. The trial judge can, and in some cases does, inspect the contested documents during the voir dire. The defence does not have the material.
• R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 – where the defence is challenging the validity of a warrant that is based, at least in some part, on confidential informant information. The Crown edits the confidential informant information out of the warrant and the ITO. A judicial summary explaining the deletions is provided to the defence. If the warrant cannot be sustained based on the edited affidavit, the trial judge can look at and consider the whole, unredacted warrant, as long as the accused is in a position to challenge the warrant on the basis of the judicial summary and other information in its possession. The information provided by or about the confidential informer will not be disclosed to the accused but will be available to the judge in assessing the validity of the warrant. See also R. v. Crevier 2015 ONCA 619
• R. v. Church of Scientology of Toronto (1984), 1984 CanLII 2141 (ON SC), 13 C.C.C. (3d) 353 (Ont. H.C.) – where the defence claims that information seized by the police during a warrant is privileged. The documents were sealed, and the Crown was provided limited information such as the name of the sender, the name of the recipient, the date, and information relating to where the document was found. The court reviewed the documents and then heard submissions from the defence and the Crown.
[46] After considering these approaches, the court in W.M. adopted a similar process to that which governs the procedure in the adjudication of Garofoli applications. The court stated:
[20] I recognize that there is no suggestion that the electronic messages in the possession of the defence in this case are privileged. Nonetheless, I have been asked to rule on a dispute over whether the defence should be required to disclose the messages to the Crown on a pre-trial application because they fall within the definition of "record" in s. 278.1. Unless Ms. M.-A. has a reasonable expectation of privacy in the Facebook messages, W.M. is entitled to keep them confidential until he chooses to use them at trial. While an accused does not have a right to trial by ambush, the defence is generally not required to disclose their strategy to the Crown and Ms. M.-A. in advance of trial.
[25] In most cases, there will probably be no doubt that the items in the possession of the defence contain information over which the complainant has a reasonable expectation of privacy. If, for example the accused comes into possession of the complainant's medical records (through a third party records application or otherwise), or finds the complainant's diary, or surreptitiously accesses her email or text messages, or is in possession of records that contain information about sexual activities involving the complainant, there will be no doubt that the complainant has a reasonable expectation of privacy in those records and the defence will have to comply with the regime set out in ss. 278.92 to 278.94 of the Criminal Code.
[26] If, however, the defence either does not believe or has a doubt that the material in its possession is a “record” (and therefore subject to the new admissibility regime), it should be open to the defence to bring a motion for directions, as W.M. has done, to have the Court to decide whether the complainant has a reasonable expectation of privacy in the records. The process adopted on the motion for direction should ensure that the defence is not forced to disclose the material in question to the Crown or the complainant until that determination is made.
[27] Employing an approach similar to the one set out in Garofoli ensures that the defence is not required to disclose information it is otherwise entitled to keep confidential. The process established Garofoli protects the confidentiality of information about the informant and also gives the accused enough information to challenge the warrant. Adapting that process to this motion for directions similarly protects the confidentiality of the information in the possession of the defence while giving the Crown enough information to make submissions as to why the complainant has a reasonable expectation of privacy in the records.
[28] As in Crevier, the Crown is not limited in its submissions to relying only on the summary provided. The Crown can speak to Ms. M.-A. or counsel for Ms. M.-A. about what records the defence might have. The Crown will also have access to the disclosure. It may be that the Crown will have to make general arguments on the scope of Ms. M.-A.'s privacy interest in electronic communications or alternative arguments based on the possible content of the messages.
[47] In W.M., the defence provided the Court with all of the Facebook messages at issue, which was marked as a sealed exhibit on the motion and was not disclosed to the Crown in advance. The court reviewed the documents and provided the Crown general information about the messages to allow them to make submissions on whether the complainant had a reasonable expectation of privacy in the records without disclosing the content of the messages.
[48] Following the same analysis as in W.M., in the case of R. v. Mai, 2019 ONSC 6691, Justice Roberts adopted the same approach and the materials were not disclosed to the Crown. The court stated:
[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.
[49] Both W.M. and Mai hold that a summary of the materials is sufficient to provide the Crown with adequate information to make the argument, while at the same time, protecting the fair trial rights of the accused.
[50] The applicant submitted that the procedure developed by the court in W.M., to determine whether a complainant has a reasonable expectation of privacy in messages held by the defence, should be followed in the case at bar. The Applicant emphasized the importance of the procedure adopted by the court, specifically because of the consequences of the defence being required to disclose the messages in advance to the Crown. The Applicant submitted that there is a real possibility of a s. 7 Charter violation in terms of self-incrimination, and most significantly the loss of impeachment value in cross-examination in a case where the central issues are the credibility and reliability of the complainant. The Applicant submitted that until there is a determination of whether there is a reasonable expectation of privacy, there is absolutely no rational basis to jeopardize these rights.
[51] The Crown submitted that evidence that is recognized under an exception of privilege, like confidential informant information, is distinct from the evidence proposed to be sealed in this case. Sealing the proposed evidence with the court denies the court the opportunity to hear informed submissions from the Crown, one of the parties to the proceedings, on whether it needs to go through the s. 278.92 analysis, and if it does, whether it should be admitted into evidence. It was submitted that this process denies the trial judge considered argument from both parties in an effort to assist the court in making a balanced, informed decision. The Crown argued that, as a Minister of Justice, it is without partisan interests and does not represent the complainant. The Crown is able to assist the court with questions of admissibility of evidence, as it would on an application to admit hearsay or similar act. The Crown is able to assist the court with the balancing that must be done.
[52] Frankly, much of the argument made by the Crown would seem to be jumping several steps ahead. This court is not deciding at this point whether the evidence is admissible. This court is merely deciding whether the material is a “record” as defined and whether the accused is required to go through the process in s. 278.92-4. Just because the material does not meet the definition of a “record”, does not mean that it will ultimately be admissible. There may be other reasons why this material is not admissible, one of which may be relevance. However, the only determination that the court is making at this stage is whether this material contains “personal information for which there is a reasonable expectation of privacy”.
[53] The Crown suggested that they should look at the messages first, before the court, and make a determination whether there is any reasonable expectation of privacy. This, it was suggested, may obviate the need for this application.
[54] It is the view of this court that this is not the proper approach. Ultimately it is the role of this court to determine whether a communication is captured by the s. 278.92 regime. As stated in Barton, at para 68:
The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge, not with the Crown. After all, it is the trial judge, not the Crown, who is the gatekeeper in a criminal trial.
These same comments would be applicable in this context. Even where counsel agree to the admissibility of evidence, the court must still ensure that the evidence does not offend the legislation. This is not for the parties to determine. It is for the court to decide whether this legislation is engaged and whether there is or is not a reasonable expectation of privacy. The court must be permitted, if it chooses, to review the proposed materials in order to ensure that the summary provided by the defence is adequate and correct. If not, the court could correct or amplify the information given to the crown in order to receive educated argument on the issue. The court is certainly not able to make an assessment of reasonable expectation of privacy without informed submissions from the Crown. However, an informed Crown is one who has received the summary from counsel, which has been assessed to be accurate by the court.
[55] In the case at bar, the Crown claimed, a number of times, to have no knowledge of the material which the applicant wished to adduce. This is simply not accurate. When the necessity of this motion was addressed before the pre-trial judge, rather than have the court provide a summary to the Crown, the court requested that the applicant create and provide a summary to the Crown. The applicant did provide such a summary as follows:
All of the messages are between the complainant and the applicant;
There is no other person who is part of the communications (i.e. the messages are not a group chat);
All of the messages are exchanged on WhatsApp Messenger;
The WhatsApp messages were extracted from the applicant’s devices (they were not taken from the complainant’s devices);
The WhatsApp messages cover a period between May 18, 2017 to January 15, 2018;
There is no express nor implicit suggestion in the messages that the communications between the applicant and the complainant should remain private;
The WhatsApp messages do not contain any information that could constitute other “sexual activity” for the purpose of s. 276 of the Code;
The messages that are subject to the s. 276 regime will be covered in a separate s. 276 application and the applicant does not seek to cross-examine the complainant on them for the purpose of this motion (but the entirety of the messages are provided to this Court).
It should also be noted that during submissions, the Crown acknowledged that based on the summary provided, there was a very real possibility that the Crown could agree with defence counsel that the material does not amount to a “record”.
[56] The Crown referred to the case of R. v. M.S. 2019 ONCJ 670, [2019] O.J. No. 4866 at paragraphs 11-13 in which the court discussed the difficulty of determining whether the communications fit within the definition of a “record” and that a review of the records by the presiding judge could engage the complainant’s privacy rights. It is recognized that even the court reviewing these materials may amount to a violation of the complainant’s privacy rights. However, in the context of section 278 and O’Connor applications, the courts have historically had the records brought to court in a sealed envelope. If the applicant was successful on the first phase of the analysis, the court would then look at the records, providing neither party with the records until hearing submissions and performing the analysis on phase two. The court is also the one reviewing the materials in the context of Garofoli applications and privileged materials. It would seem, therefore, that the court should do the same in relation to materials in the possession and control of the accused. A review by the court at this stage may reduce the risk of issues arising mid trial.
[57] Further, in the context of material already in the hands of the accused, there is no risk that the information will become known to someone as the information is already known. The real issue in such circumstances is the use of that information rather than a concern about the accused knowing the information. The fact is they already know the information. Therefore, in such circumstances, there would seem to be less concern surrounding the court seeing the material.
[58] It is appreciated that the Crown in this case was willing to provide an undertaking not to show the communication to the complainant or describe its content to the complainant. The submission made was that the Crown does not represent the complainant and is in a similar neutral position to that of the judge. It is true that the Crown does not represent the complainant. With regard to the proper role of the Crown Attorney, there is perhaps no more often quoted statement than that in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at p. 23-24 (as was stated above in the quote from Stinchcombe but is worth repeating):
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[59] There is no question that the Crown is to present its case fairly to the court, setting aside any personal desire for success. However, the Crown is not the Court, and is still in an adversarial role in the process and is permitted to strive for a conviction. In R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113:
[21] Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence (Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Power, supra, at p. 616), it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth: see, for example, R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 295, per L'Heureux-Dubé J. Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country's criminal law mechanism: R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229; Boucher, supra. In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function.
[60] In this regard, the Crown cannot claim to be truly neutral. The Crown is not an impartial actor like the judge presiding over a trial. If the Crown receives the messages and the court then determines these messages not to be records, a real problem solidifies. The crown having read the messages will be alerted to areas of cross-examination and may wish to explore them in examination in-chief. Even if it is not explored in examination in-chief, the crown and complainant will become aware of proposed cross-examination and defence strategy.
[61] The Crown argued that there are other ways that the complainant may become aware of defence strategies. For example, the Crown argued that in the 276 / 278 regime, or the O’Connor regime, the complainant ultimately does become aware of the proposed records or lines of cross-examination. However, this application for direction cannot be equated with these regimes, in which by the point the complainant becomes involved, there is no dispute that a reasonable expectation of privacy exists. The Crown also points to the complainant possibly becoming aware of defence strategies by having participated in an earlier trial, where there is a mis-trial or re-trial, or where witnesses communicate contrary to court order. The fact that a complainant can become aware of defence strategy in this way does not mean it should be encouraged.
[62] The importance of cross-examination in a trial is undeniable. In R. v. Lyttle, 2004 SCC 5, paras 1 and 2:
[1] Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.
[2] That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence.
[63] There is obviously some benefit to confronting the complainant with information in cross-examination that is not expected. In R. v. White, 1999 CanLII 3695 (ON CA), [1999] O.J. No. 258 (C.A.) at para 20, the Court of Appeal recognized that a witness can tailor their evidence to fit the disclosure. The tainting of witnesses undermines the truth-seeking function of the trial. The court attempts to avoid this by such things as witness exclusion orders. The fact that the complainant will know of the defence theories if this reaches a hearing under s. 278.94 demonstrates why this stage is so important and must not be lightly decided. If the materials do not engage a privacy right, then those materials need not be disclosed.
[64] The Crown further suggested that another Crown be brought in to review the records and make submissions, one who is not otherwise involved in the prosecution of the case. This would seem to create real problems in jurisdictions where there are fewer assistant Crown Attorneys. Also, this argument cuts against the principle that the Crown is indivisible.
[65] The issue here is not about “sacrificing” or “waiving” existing privacy rights, as the Crown submitted. The issue here is whether there is a reasonable expectation of privacy in the first place. If there is no reasonable expectation of privacy, then there is nothing to sacrifice or waive. The countervailing interests of privacy and dignity are not engaged at this point. The court must determine whether those interests are engaged - that is the whole purpose of this application.
[66] Given the early stage of these proceedings, and that there is not yet a recognized reasonable expectation of privacy, the potential breach of the Applicant’s right to silence and right against self-incrimination must be taken very seriously. In W.M. the court stated:
[21] Further, Mr. M. has the right to know the case he must meet before he is called upon to respond. This right against self-incrimination is one of the fundamental aspects of the protections afforded by s. 7 of the Charter. In R. v. P.(M.B.), the Supreme Court explained how the right against self-incrimination operates at the pre-trial stage of criminal proceedings:
Before trial, the criminal law seeks to protect an accused from being conscripted against him or herself by the confession rule, the right to remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151. With respect to disclosure, the defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence.
[22] The consequences of requiring W.M. to bring an application and give the messages to the Crown and Ms. M.-A. before she testifies are potentially profound. It may violate his s. 7 right against self-incrimination as articulated in P.(M.B.). In addition, to the extent the Facebook messages have impeachment value in this case, that value would largely be lost if Ms. M.-A. is able to review the message in advance and tailor her evidence to respond to the content of the messages. This is particularly significant in this case because the credibility and reliability of Ms. M.-A.'s evidence will be a central issue.
[67] The Crown submitted that the advance knowledge of the complainant enhances rather than detracts from the truth-seeking process, as it is unreasonable to expect a complainant, testifying about an embarrassing and personal subject matter, to respond logically, coherently and calmly when confronted with such evidence out of the blue. In this case, there will not be a presentation of evidence “out of the blue”. If these messages are ultimately determined to be admissible, the complainant will be presented with messages that she authored and be given an opportunity to respond to them. The rule in Browne v. Dunn requires that this be done if the defence intends to put forward a competing or alternative narrative. Quite frankly, even though the Crown does not have the actual messages in their possession, the Crown does know that the messages were those on WhatsApp between the complainant and the applicant during the time frame from May 18, 2017 to January 15, 2018. There would be nothing prohibiting the Crown from having a discussion with the complainant about these messages prior to her testimony. She may well remember the messages.
[68] Clearly, there are a number of things included in s. 278.1 which Parliament has determined to be a “record”. Those things will be presumptive records and the determination of admissibility will be as outlined in the legislation. However, in circumstances in which the type of material in the hands of the accused does not fall into one of the enumerated categories, and where it is not clear whether such material is or is not a “record”, the accused should be able to request direction from the court and should not have to simply turn that material over to the Crown. Disclosing these messages in advance would undermine the applicant’s fair trial rights. The credibility and reliability of the complainant will be central issues at the trial and the messages have significant impeachment value.
[69] Based on the totality of the circumstances, this court determined that it was not necessary for the applicant to disclose the materials to the Crown at this stage of the proceedings, where there had not yet been a determination of whether this material was a record and therefore subject to s. 278.92.
[70] This court suggests the following procedure be followed where the defence has material in its possession or control relating to a complainant, which it intends to adduce, and for which it is not clear whether it would amount to a “record” as defined in s. 278.1:
The accused must bring an application seeking a ruling from the court as to whether or not the material is a “record” as defined by s. 278.1 of the Criminal Code;
In the application, the accused must summarize the content of the material in order to provide the Crown with sufficient knowledge upon which to make the argument. Some suggested information that will likely be necessary, may include, but is not limited to the following:
a. The nature and type of material – i.e.: text message, email, photograph, social media post;
b.Identify all parties privy to the material or expected to be privy to the material, i.e. parties to the communication in text messages;
c. The nature of the relationship between the parties at the time of the communication and at the time of the application;
d. Identify how and when the material came into the possession of the accused;
e. The time of the creation of the material;
f. The time period covered by the material;
g.The knowledge of the parties sharing the material at the time; in other words, identify whether the parties knew the material was being shared and who it was being shared with;
h.The purpose for which the material was provided to the accused;
i. Whether the material includes any information that might be typically contained in any of the items listed in s. 278.1;
j. Any suggestion in the material that the information will be kept private, or alternatively, any suggestion in the material that the information can be shared;
k.Whether the material includes any information that could constitute other “sexual activity” for the purposes of s. 276 of the Criminal Code;
The accused is not required to disclosure the actual material to the Crown or to the complainant until a determination is made as to whether the material is a record;
The accused shall provide the material to the court in a sealed envelope and that sealed envelope shall be made an exhibit at the hearing of the application;
The judge hearing the application will determine whether the court needs to review the material in order to assess whether a reasonable expectation of privacy exists and therefore the material is a “record” as defined by the Criminal Code;
Once the court has reviewed the records, it may supplement the summary if it feels that some further information is required to allow the Crown to make submissions;
The complainant is not entitled to notice of these proceedings and is not entitled to participate in this phase of the proceedings;
This hearing should be conducted in camera, and there should be a publication ban.
[71] In this case, having made the determination that the Crown was not entitled to review the materials at issue, the court then reviewed the records prior to hearing submissions from counsel as to whether the materials at issue amount to a “record”, in other words do these materials contain “personal information for which there is a reasonable expectation of privacy”.
Is the Material a “Record”
[72] In an application under s. 278.92, as to what is a “record”, that is defined in s. 278.1. Record is defined both for third party records and the new admissibility regime governing material in the possession and control of the accused. The section clearly does not include text communication, however, it is also clear that the list, while perhaps instructive, was not meant to be exhaustive. In these circumstances, the court must engage in an analysis to determine whether the materials in issue are those envisaged by s. 278.1. Unless the court determines that there is a reasonable expectation of privacy, this legislation does not apply and the applicant is entitled to keep material confidential until a decision is made to use them. The phrase “personal information for which there is a reasonable expectation of privacy” must be considered in light of previous jurisprudence. However, in looking at this previous jurisprudence, it is clear that the analysis has been determined by the court to be contextual.
[73] Most cases that discuss a “reasonable expectation of privacy” are in the context of s. 8 of the Charter. While there are of course different considerations in these cases, these are instructive because they give guidance on the types of things the courts consider when deciding whether there is a reasonable expectation of privacy, and the reason, in certain circumstances, there is a heightened privacy interest where the state tries to get information.
[74] Cases as far back as Hunter and Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 advocated for a broad general right to be secure from unreasonable search and seizure. However, the court made it clear that the right had limits and only protected a "reasonable expectation of privacy". Dickson J. stated at paragraph 25:
[25] Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
[75] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, Justice Cory, at para 45, referred to the need to consider the “totality of the circumstances” and suggested that particular attention be paid to 1) the existence of a subjective expectation of privacy, and 2) the objective reasonableness of the expectation.
[76] Later on, the Supreme Court of Canada in R. v. Tessling, 2004 SCC 67, recognized that the relationship between the items searched and the place to be searched was important. In that case, the police, without a warrant, had used a thermal imaging device to take a “heat” picture of the respondent’s home from an overhead aircraft. The court held that there were situations where stronger levels of protection were necessary. The court distinguished between personal, territorial and informational privacy interests and held that the privacy of the person called for the greatest protection because it engaged a person’s bodily integrity. With respect to informational privacy, the court discussed the fact that individuals should be free to decide for themselves when and how information should be shared with others, but in the context of state intrusion. The Court stated:
[23] Beyond our bodies and the places where we live and work, however, lies the thorny question of how much information about ourselves and activities we are entitled to shield from the curious eyes of the state (R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60). This includes commercial information locked in a safe kept in a restaurant owned by the accused (R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16). Informational privacy has been defined as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others": A. F. Westin, Privacy and Freedom (1970), at p. 7. Its protection is predicated on
the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain ... as he sees fit.
(Report of a Task Force established jointly by Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13)
[25] Privacy is a protean concept, and the difficult issue is where the "reasonableness" line should be drawn. Sopinka J. offered a response to this question in the context of informational privacy in Plant, supra, at p. 293, as follows:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [Emphasis added.]
[26] I emphasize the word "include" because Sopinka J. was clear that his illustration ("intimate details of the lifestyle and personal choices") was not meant to be exhaustive, and should not be treated as such. Nevertheless, Plant clearly establishes that not all information an individual may wish to keep confidential necessarily enjoys s. 8 protection.
[77] As for text messages specifically, but still in the context of access by the state, the Supreme Court of Canada in R. v. Marakah, 2017 SCC 59 held that the sender of a text message retained a reasonable expectation of privacy in the message as regards to state intrusion, such that the sender of a text message retained standing to challenge Charter compliance of search and seizure of communications from the recipient’s cell phone. In Marakah, again considering the totality of the circumstances, the court stated at para 5:
[5] The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy (see Moldaver’s reasons, at paras. 100 and 167-68); whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge.
[78] In that case, the majority of the court found that Mr. Marakah had a reasonable expectation of privacy in the text messages recovered from Mr. Winchester’s iPhone since Mr. Marakah subjectively expected them to remain private, and that expectation was objectively reasonable. The court identified factors to be considered in determining whether the claim to privacy was objectively reasonable, including 1) the place where the search occurred, 2) the private nature of the subject matter, and 3) control over the subject matter. With respect to the factor of control, the Court stated:
[40] The Crown argues that Mr. Marakah lost all control over the electronic conversation with Mr. Winchester because Mr. Winchester could have disclosed it to third parties. However, the risk that recipients can disclose the text messages they receive does not change the analysis : Duarte, at pp. 44 and 51; Cole, at para. 58. To accept the risk that a co-conversationalist could disclose an electronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation absent such disclosure. "[T]he 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" : Duarte, at p. 44. Therefore, the risk that a recipient could disclose an electronic conversation does not negate a reasonable expectation of privacy in an electronic conversation.
[41] The cases are clear : a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where "technological reality" (Cole, at para. 54) deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.
It would appear that the comments made by the Supreme Court of Canada were very specific to dissemination to the state, not to other private individuals. The Court acknowledged the risk that one private citizen might tell another private citizen the information contained in the message. The court appeared to be saying that a person may well have no reasonable expectation in those circumstances, as this is a recognized risk of sharing information with others. However, the court distinguished between this risk and the risk of dissemination to the state. This is not likely to be a risk appreciated by the sender of the message, and therefore, the person may have a reasonable expectation of privacy in relation to state access to this information.
[79] In concluding that Mr. Marakah had a reasonable expectation of privacy over the text communications found on Mr. Winchester’s phone, the court once again stated that this did not mean that electronic communications will always have an attached reasonable expectation of privacy. At para 55, the court stated:
[55] I conclude that in this case, Mr. Marakah had standing under s. 8 of the Charter. This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards. On the facts of this case, Mr. Marakah had a reasonable expectation of privacy in the electronic conversation accessed through Mr. Winchester's device; different facts may well lead to a different result.
The court was clear that the accused’s subjective expectation of privacy in relation to the state was objectively reasonable because of the totality of the circumstances, including the place of the search (phone), the private nature of the subject matter (discussion of a criminal enterprise) and exercise of control. The court was clear that not every communication in electronic form would rise to the level of a reasonable expectation of privacy; in other words, text messages are not a never or always scenario when it comes to a reasonable expectation of privacy.
[80] In R. v. Reeves, 2018 SCC 56, the Supreme Court of Canada again examined the concept of a reasonable expectation of privacy in the context of s. 8 of the Charter. In that case, Mr. Reeves had been charged with a domestic assault and was precluded from attending the family home without the consent of his common-law spouse. Sometime later, the common-law spouse contacted Mr. Reeves’ probation officer to report that she had found what she believed to be child pornography on the home computer that she had previously shared with Mr. Reeves. The police attended, without a warrant. The common-law spouse allowed the officer to enter and signed a consent authorizing the officer to take the home computer. The police detained the computer without a warrant for more than four months, but did not search it during that time. They did not report the seizure to a justice. The police then obtained a warrant to search the computer and executed it. The police found 140 images and 22 videos of child pornography on the computer. Mr. Reeves was charged with possessing and accessing child pornography.
[81] At trial, Mr. Reeves was acquitted, the trial judge finding that there had been a violation of s. 8 and that the computer evidence must be excluded under s. 24(2). The Court of Appeal allowed the Crown’s appeal, set aside the exclusionary order and ordered a new trial. The issue before the Supreme Court was whether the consent from the accused’s spouse was sufficient to allow police to take the computer without a search warrant. The Supreme Court of Canada concluded that, although the accused and his spouse shared the computer, the accused maintained a reasonable expectation of privacy in the information stored on the computer and that his spouse could not waive his reasonable expectation of privacy in the information stored on the computer. In those circumstances, the court held that control over the information or item was not determinative to whether a reasonable expectation of privacy existed.
[82] The court in Reeves, much like in Marakah, distinguished between the risk that another person might see or share information, even share that information with the police, versus the risk of the police seizing the item or making their own record of the information. The court stated:
[41] I cannot agree with the first proposition - that Reeves had no reasonable expectation of privacy in the computer. The consent of Reeves' spouse cannot nullify a reasonable expectation of privacy that he would otherwise have in the shared computer. Admittedly, when we share a computer with other people, we take the risk that they will access information we hoped to keep private. They may wish to share the information they find with others, including the police. But, as noted above, the reasonable expectation of privacy standard is normative, not descriptive. The question is not which risks the claimant has taken, but which risks should be imposed on him in a free and democratic society.
[42] Thus, in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, this Court concluded that the surreptitious electronic surveillance of a conversation by the police without a warrant violated s. 8 of the Charter, even if one of the participants in the conversation had consented to the surveillance. In reaching this conclusion, the Court distinguished between the "tattletale" risk (the risk that someone will tell the police what you said) and the risk that someone will consent to the police making an electronic record of your words (p. 48). The Court concluded that "[t]hese risks are of a different order of magnitude" - the tattletale risk is one that is reasonable to ask citizens to bear in a free and democratic society, whereas the surveillance risk is not (p. 48).
[43] Similarly, while it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co-user could consent to the police taking this computer. In Marakah, this Court held that, when a claimant shares information with another person through a text message, he accepts the risk that this information may be disclosed to third parties. But that does not mean the claimant "give[s] up control over the information or his right to protection under s. 8" (para. 41).
[46] The Crown also argues that rejecting its approach will prevent victims of crime who have received threatening or harassing text messages from showing them to the police. However, the issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise in this case (see Marakah, at para. 50; Dyment, at p. 432; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 21-35). Indeed, Gravelle did not bring the computer to the police, but rather signed a consent form authorizing them to take it. (She testified that she signed the form because she did not think she had a choice.) The issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day. This case deals squarely with the taking of a computer by the state.
[83] Again, the court differentiated between sharing of information with another citizen versus sharing the information with the state. In Reeves, the court went further than they did in Marakah. In Reeves, the court suggests that even if the common-law spouse had told the police about this information, this would not be problematic. The problem arose when the computer was taken by the police. In other words, Mr. Reeves had no reasonable expectation of privacy in the computer as it related to his common-law spouse who shared the computer. Further, Mr. Reeves had no reasonable expectation of privacy in the common-law spouse discussing what she saw with the police. The reasonable expectation of privacy that Mr. Reeves had was in relation to the police taking and later analyzing this computer, as this is a risk Mr. Reeves would not have appreciated and should not have to bear in a free and democratic society.
[84] The Supreme Court of Canada has also, fairly recently, considered the concept of “reasonable expectation of privacy” from the perspective of persons other than the accused. In R. v. Jarvis, 2019 SCC 10, the accused was charged with voyeurism when he surreptitiously used his camera pen to take videos of female students in common areas of the school, which focused on their chest areas. At the Court of Appeal for Ontario, the court stated that the recordings were not made in circumstances that led to a reasonable expectation of privacy. The Supreme Court disagreed and stated that students had a reasonable expectation of privacy regarding how their bodies would be observed. In reaching this conclusion, the Court emphasised the fact that the students had no knowledge of the recordings and did not consent to being recorded. Further, the court stated that the recordings violated school policy. Relying on its earlier decision in Tessling, the court stated:
[66] In considering the concept of informational privacy, this Court has accepted that individuals have a valid claim “to determine for themselves when, how, and to what extent information about them is communicated to others: Tessling……The safeguarding of information about oneself, which is also closely tied to the dignity and integrity of the individual, is of paramount importance in modern society: Dyment, at p. 429. When a court is considering whether there is a reasonable expectation of privacy in information, the nature and quality of the information at issue are relevant: see Plant, at p. 293….
[85] In Jarvis, in the context of being observed or recorded, the court listed a number of relevant considerations in determining whether a reasonable expectation of privacy exists:
The location the person was in when observed or recorded, such as whether it was a location in which to exclude all others or only to be observed by a select group;
The nature of the impugned conduct, that is, whether it consisted of observation or recording. A person may expect to be observed but not recorded;
An awareness of, or consent to, potential observation or recording;
The manner in which the observation or recording was done, such as whether it was fleeting or sustained, and was it aided or enhanced by technology;
The subject matter or content of the observation or recording, including whether there was a focus on an intimate part of the body;
Any rules, regulations or policies that governed the observation or recording in question;
The relationship between the person who was observed or recorded and the person who did the observing or recording;
The purpose for which the observation or recording was done;
The personal attributes of the person who was observed or recorded.
See Jarvis, para 29.
[86] The context of Jarvis is very different from the case at bar. However, it again is a reminder that in determining whether a reasonable expectation of privacy exists, the court must consider the nature and quality of the information at issue.
[87] Finally, in R. v. Mills, 2019 SCC 22, the Supreme Court of Canada held that the accused did not have a reasonable expectation of privacy over sexually explicit Facebook messages that were sent to a 14-year old girl (who was an undercover police officer). The court accepted that the accused had a subjective expectation of privacy in his online communication, however the court did not find this to be objectively reasonable given the nature of the relationship, i.e. an adult communicating with a child. The court also recognized the vulnerability of children and their need for protection from sexual crimes. The court determination turned on what a person could reasonably expect in the totality of the circumstances.
[88] Certainly this case law, mostly in the context of s. 8, must be considered in determining whether there is a reasonable expectation of privacy in this case. The general principles are applicable. However, from a review of these cases, it is obvious that the determination of whether an individual has a reasonable expectation of privacy is a fact-specific, contextual inquiry.
[89] Cases that have dealt with the previous third party record and s. 278 regime are also very relevant to consider and informative for the interpretation of the scope of s. 278.1 as it applies to s. 278.92. Those cases also expressed the need for the court to do a fact- and context-sensitive inquiry. See R. v. O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para 100. These cases, however, must be considered in light of the different contexts of section 278.2 (a limit on compelled production) versus 278.92 (a limit on admissibility).
[90] In response to O’Connor, Bill C-46 was drafted and came into force on May 12, 1997. It was widely known that these provisions were enacted to prevent fishing expeditions for private information through the coercive power of a subpoena. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, the Supreme Court of Canada upheld the constitutionality of the new Criminal Code provisions relating to the production of third party records as they read at that time. The majority of the Supreme Court of Canada in Mills noted that the broad definition of “record” was rendered constitutional by its limitation to those records in which there is a reasonable expectation of privacy. The Court stated:
[99] The response to these claims is to remember that the legislation applies only to records "for which there is a reasonable expectation of privacy" (s. 278.1 (emphasis added)). Only documents that truly raise a legally recognized privacy interest are caught and protected: see R. v. Regan (1998), 1998 CanLII 17609 (NS SC), 174 N.S.R. (2d) 230 (S.C.). The Bill is therefore carefully tailored to reflect the problem Parliament was addressing -- how to preserve an accused's access to private records that may be relevant to an issue on trial while protecting, to the greatest extent possible, the privacy rights of the subjects of such records, including both complainants and witnesses. By limiting its coverage to records in which there is a reasonable expectation of privacy, the Bill is consistent with the definition of s. 8 privacy rights discussed above. Moreover, as will be discussed below, the mere fact that records are within the ambit of Bill C-46 will not, in itself, prevent the accused from obtaining access to them. Applied in this way, ss. 278.1 and 278.2(1) will not catch more records than they should, and are not overly broad.
[100] It must also be remembered that the definition of records in ss. 278.1 and 278.2(1) simply establishes the starting point for the analysis proposed by the Bill. Documents falling within the ambit of these provisions, after being subject to the legislative regime, may or may not be ordered to be disclosed to the accused. It is therefore the procedures established by the Bill and not the spectrum of records subject to these procedures that will determine the fairness or constitutionality of the legislation. If the legislative regime fairly provides access to all constitutionally required documents, then the spectrum of records brought under the Bill, if in keeping with the Bill's objectives, cannot be challenged.
The court emphasized the central importance of the phrase “reasonable expectation of privacy” in upholding the constitutionality of the third party record provisions. It is only reasonable that this phrase carries, at least, the same central importance when dealing with materials in the possession of the accused.
[91] There is no question that the definition of “record” goes beyond the items listed in s. 278.1. In R. v. Quesnelle, 2014 SCC 46, the Supreme Court of Canada held that police occurrence reports from occurrences unrelated to the charges before the court, though not one of the types of records specifically enumerated in section 278.1, were “records” for the purpose of section 278.1 and were records in which witnesses retained a reasonable expectation of privacy. The rationale behind this decision was that witnesses who provide personal information to police reasonably expect the police to maintain the confidentiality of those records except for certain purposes.
[92] In Quesnelle, the court held, as it had in the past, that a reasonable expectation of privacy is not an all or nothing concept; its analysis is contextual and based on the totality of the circumstances. The court held that the circumstances or nature of the relationship in which information was shared is not determinative and a reasonable expectation of privacy is not limited to trust-like, confidential or therapeutic relationships. Further, a person may divulge information to an individual with the expectation that it be used only for a specific purpose. The court stated:
[21] Under the first step of the Mills regime, the trial judge makes a preliminary determination of whether a document is a "record" covered by the regime, without seeing the specific document. Only if the judge decides that the document is likely relevant to an issue at trial or to the competence of a witness to testify and that production to the court is necessary in the interests of justice will the judge then have the opportunity to view and assess the particular document. Therefore, the judge will usually determine whether a record "contains personal information for which there is a reasonable expectation of privacy", on the basis of the type of document at issue.
[22] The definition of "record" is broad and non-exhaustive. Section 278.1 provides an illustrative list of some of the types of records that usually give rise to a reasonable expectation of privacy. However, documents that do not fall into the listed categories will still be covered by the Mills regime if they contain information that gives rise to a reasonable expectation of privacy.
[28] Unlike much of the jurisprudence under s. 8 of the Charter, the analysis of the reasonable expectation of privacy in this case does not concern the right to be free from unreasonable intrusion by the state. Rather, the question is whether it is reasonable to expect that the state will keep information that it has legitimately acquired private from other private individuals.
[29] A reasonable expectation of privacy is not an all or nothing concept: Mills, at para. 108. A person may have a reasonable expectation that the state will not have access to her hotel room, even if she fully expects hotel staff to enter the premises: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 22, discussing R. v. Dinh, 2001 ABPC 48, 42 C.R. (5th) 318. Equally, a person may divulge information to an individual or an organization with the expectation that it be used only for a specific purpose: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 429-30. The same principle applies to disclosure to the police.
[35] The Mills regime regulates disclosure in the context of a criminal trial: information that is disclosed will often be exposed in court. Significantly, even where the information is not used in the trial, it will certainly be seen by the accused, who will often be known to the affected person, and whose use of the information is not subject to the legal oversight of the Charter or privacy legislation that applies when such information is given to law enforcement. Consequently, disclosure may involve a more serious violation of the complainant's dignity than disclosure to the state.
[36] There are tangible harms associated with disclosure of personal information in the context of prosecutions for sexual offences, particularly when information about the complainant is disclosed to the person accused of sexually assaulting her. In the preamble to the legislation enacting the Mills regime, Parliament recognized "that the compelled production of personal information may deter complainants of sexual offences from reporting the offence to the police". Victims of sexual offences will be less likely to come forward if they know that doing so will entail disclosure of their past interactions with police to the very person who they claim has wronged them.
[37] It bears repeating that privacy is not an all or nothing concept; rather, "[p]rivacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged" (Mills, at para. 108). Consequently, the fact that information about a person has been disclosed to a third party does not destroy that person's privacy interests. Because the contents of occurrence reports will be disclosed under certain circumstances does not mean that there is not a reasonable expectation of privacy in those records.
[39] Where an individual voluntarily discloses sensitive information to police, or where police uncover such information in the course of an investigation, it is reasonable to expect that the information will be used for the purpose for which it was obtained: the investigation and prosecution of a particular crime. Similarly, it is reasonable to expect individual police officers to share lawfully gathered information with other law enforcement officials, provided the use is consistent with the purposes for which it was gathered.
[40] However, when the government divulges sensitive information to private individuals this may violate reasonable expectations of privacy. For example, if police were to publicly broadcast a wiretap recording this would clearly constitute an interference with privacy (see Escher v. Brazil, Inter-American Court of Human Rights, judgment of July 6, 2009, series C, No. 200, at paras. 157-58) as well as a violation of s. 193(1) of the Criminal Code. To indiscriminately publicize the contents of police occurrence reports would result in similar interference.
[43] People provide information to police in order to protect themselves and others. They are entitled to do so with confidence that the police will only disclose it for good reason. The fact that the information is in the hands of the police should not nullify their interest in keeping that information private from other individuals.
[93] Interestingly, Justice Moldaver, writing for the dissent in Marakah, noted that the Court’s holding in Quesnelle, that complainants have a reasonable expectation of privacy in personal information contained in records held by the police, was due to the professional status of the police and the expectation that professionals such as the police would safeguard their private information. See Marakah at paras 138-9
[94] Courts have applied the rationale from Quesnelle in other contexts. In R. v. W.(S.), 2015 ONCJ 562, Justice Schreck was dealing with an application for various types of third party records, one of which was information related to telephone calls between the complainant and the accused. In finding that this information was not a “record” as defined in s. 278.1, the court stated:
[17] The records at issue here divulge the date, time and duration of telephone calls, but not their content. The information is similar to that which would be revealed by a digital number recorder, which the police may employ if granted a warrant pursuant to s. 492.2 of the Criminal Code. The courts have held that there is a reasonable expectation of privacy with respect to this data, albeit a limited one: R. v. Cody (2007), 2007 QCCA 1276, 228 C.C.C. (3d) 331 (Que. C.A.) at paras. 15, 25-26.
[18] However, as noted in Quesnelle, a reasonable expectation of privacy is not an all or nothing concept and depends on the circumstances or nature of the relationship in which the information was shared. In this case, the complainant chose to telephone the applicant. He could have made a record of those calls at the time they were made. Indeed, he could have surreptitiously recorded them. In my view, the nature of the relationship in which the information was shared, that is, voluntary calls the complainant made to the applicant, was such that although she may have a claim of privacy with respect to the state having access to this information, she has no claim of privacy in relation to the applicant's ability to access the information. As a result, I conclude that the Bell records are not "records" for the purposes of s. 278.1 and the Mills regime does not apply.
The contextual analysis that Justice Schreck applied is similar to the case at bar.
[95] Since the enactment of Bill C-51, there have been a few cases that have tackled the question of what material in the possession of the accused amounts to a record.
[96] In R. v. M.S., 2019 ONCJ 670, Justice Chapman was asked to provide direction to counsel as to whether or not the defence needed to bring an application pursuant to s. 278.92-4 of the Criminal Code in order to cross-examine the complainant at a sexual assault trial on documents in the possession of the accused. The defence would not disclose how they had obtained the materials. Justice Chapman found that she was unable to make a final determination on the basis of the record that she was provided on the application, however, she did provide some guidance on the issue and set out a list of factors in determining whether or not something is a “record” as defined in s. 278.1. Those factors were:
Is it a record akin to those enumerated in the section?
Is the information in the record akin to that which one might reasonably expect to find in the records that are enumerated in the section?
How was the information obtained? Was it voluntarily surrendered or surreptitiously recorded in the form of a permanent record?
For what purpose was the information provided to the accused?
Was the communication public or semi-public or between two private individuals?
Was there an express desire that the communication remain private or can such a desire be reasonably inferred from all of the circumstances?
How many other people were privy to the communication?
If it is not sexual history is it something akin to sexual history?
If it is not akin to sexual history, is it the kind of information that has historically, and improperly, been used to discredit sexual assault complainants? Such as their street-involved status or (non-sexual) mistreatment by others?
Is it information that might be considered biographical core information as that concept is explained in Plant, Mills and all subsequent case law?
In relation to photos/videos where were they taken? By whom were they taken? For what purpose were they taken and how did the accused end up with them?
For social media postings, what is the nature of the social media application in question? Is it designed for public sharing of information or immediate destruction of the communication once sent?
Is the social media posting of a child or an adult?
What is the nature of the relationship between the parties that are communicating? For example, is it a relationship of trust or authority?
Whose account was the information taken from and what are the privacy settings?
Did the accused gain access to the account through fraud or deceit?
After providing these considerations and setting out the materials at issue in her case, Justice Chapman than stated:
[72] In conclusion, all text messages, social media postings, photos or videos that involve any sort of discussion of sexual activity and/or sexual innuendo, require an application be brought prior to their admission into evidence. Further, subject to additional information or context, I find that the complainant has an ongoing reasonable expectation of privacy in relation to the text messaging record between herself and the accused. Those communications contain personal information such as the parties' thoughts, aspirations, feelings, friendships, social interactions and the details of their daily activities. It may be inferred from their content that they were not intended to be shared with the public. Even non-sexual digital communications between the complainant and the accused that potentially involve biographical core information or sensitive information or are of an intimate nature are also potentially records that require vetting. Unfortunately, on this record, I cannot provide more specific guidance.
It would appear, therefore, that Justice Chapman, while at an earlier point indicating that the record did not allow her to make a final determination, did decide that the communications were “records”. See also R. v. Ekhtari, 2019 ONCJ 774
[97] Other provinces have also found text messages between an accused and a complainant to be captured by the definition of “records” in s. 278.1. See: R. v. R.M.R., 2019 BCSC 1093. To the contrary, Justice Stirling of the Alberta Provincial Court in R. v. Navia, [2020] A.J. No. 251 found that the emails at issue in that case were not “records”.
[98] Interestingly, in R. v. Phagura, [2019] B.C.J. No. 1807 (BCSC), the court was considering the accused’s reasonable expectation of privacy in relation to messages sent to the complainant, in other words the reverse of this situation. The complainant allowed police to take pictures of the messages on her telephone. In that case, the court held that even if the accused wanted the messages to be kept secret, there was no evidence that the recipient ever intended to keep them confidential. The court found that while there was a subjective expectation of privacy, that expectation was not reasonable in the circumstances.
[99] In W.M., referred to earlier, the court held that “the determination of whether someone has a reasonable expectation of privacy is very fact specific.” The court suggested four factors that were relevant to the analysis in that case:
The content of the messages;
The manner in which the messages were sent and who has control over them;
The nature of the relationship between the parties; and
The policy implications of finding there is a reasonable expectation of privacy.
Ultimately, the court found that while the complainant may have had a subjective expectation of privacy, that expectation was not reasonable in the circumstances, including the innocuous, non-sexual nature of the messages, the manner in which they were sent and the nature of the current relationship between the parties.
[100] In Mai, also referred to earlier, Justice Roberts stated that in determining whether a record contains personal information for which there is a reasonable expectation of privacy, that the “totality of the circumstances” must be considered. The approach then taken by Justice Roberts was as follows:
[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…
[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…
[101] The determination as to whether an individual has a reasonable expectation of privacy is necessarily a fact-specific inquiry, involving a consideration of the totality of the circumstances.
[102] It is the view of this court that the following considerations should apply when determining whether material in the possession or control of the accused falls into the definition of “record” as set out in s. 278.1:
The nature and type of material – i.e.: text message, email, photograph, social media post;
A consideration of the parties privy to the material or expected to be privy to the material, i.e. parties to the communication in text messages;
The nature of the relationship between the parties at the time of the communication and at the time of the application;
The manner and time that the material came into the possession of the accused, including whether it was voluntarily provided or surreptitiously gained;
The time of the creation of the material;
The time period covered by the material;
The knowledge of the parties sharing the material at the time; in other words, a consideration of whether the parties knew the material was being shared and who it was being shared with;
The purpose for which the material was provided to the accused;
The content of the material, including:
a. Whether the content is of the type expected to be found in the records enumerated in s. 278.1;
b. Whether there is any indication in the material that the information is meant to remain private or with whom it is meant to be shared;
c. Whether the material includes any information that could constitute other “sexual activity” for the purposes of s. 276 of the Criminal Code.
In an application to determine whether material amounts to a “record” pursuant to s. 278.1, the applicant must provide the information noted above in order to allow the Crown to provide an informed response to the application.
[103] It is the view of this court, having considered the totality of the circumstances, that while the complainant may have subjectively preferred that her messages remain private, her expectation is not objectively reasonable in the totality of the circumstances.
[104] The materials at issue in this case are WhatsApp text messages between the complainant and the accused. There may have been photographs or videos attached to those messages, however, such items are not attached to the records sealed and filed with this court and there was no indication from the applicant that they wished to adduce such material. Therefore, this court is deciding this application only on the text messages filed with the court.
[105] The WhatsApp messages cover a period between May 18, 2017 to January 15, 2018.
[106] At the time these messages were sent and received, the complainant and the applicant were in a domestic relationship, in fact, were a married couple, who at times lived in different countries. Their relationship now has dramatically changed. As of January 2018, the complainant made a statement to the police alleging that the applicant assaulted, sexually assaulted and threatened her beginning in September 2017. The applicant was charged with a number of criminal offences and is moving toward a trial in this matter. The relationship is now an adversarial one.
[107] The WhatsApp messages were obtained from the applicant’s personal devices, as he had saved these messages since the communication occurred. They were not taken from the complainant’s devices.
[108] The parties to these communications were the complainant and the applicant.
[109] The parties to these communications, the complainant and the applicant, appeared to know that they were sharing information with each other. The messages were not obtained surreptitiously, but rather were exchanged voluntarily. This is an important consideration. Certainly, the complainant’s privacy interest would be elevated if the complainant did not know she was communicating and sharing information with the applicant. Further, her privacy interest may be elevated if the applicant accessed the information from another source, such as her personal device, or recorded the information surreptitiously (as was the case in Jarvis). The complainant in the case at bar chose, of her own free will, to disclose the information contained in the messages to the applicant. The complainant knew who she was conversing with and that she was creating a permanent record that could easily be saved and disseminated to others. The Court stated in W.M. as follows:
[45] The fact that W.M. was the intended recipient of Facebook messages is a significant factor in deciding whether Ms. M.-A. can reasonably expect that they will be kept private and will not be used by the intended recipient. To the extent that the messages contain personal information about Ms. M.-A., she chose to share that information with W.M. She also chose to do so in writing, knowing that she was creating an electronic record that W.M. could save and share with others.
[46] The fact that Ms. M.-A. chose to share information with W.M. distinguishes the Facebook messages from the categories of records enumerated in s. 278.1 of the Code, none of which are created with the intention that they will be received by the accused. For example, medical or counselling records are created for a specific and limited purpose of providing care to the complainant. When personal information is shared with a particular person for a limited purpose, it is understandable that a complainant may have a reasonable expectation that that information will not be used by other people for another purpose. There is no suggestion that Ms. M.-A. sent the messages to W.M. for any limited or specific purpose. In addition, the messages do not contain any express or implied request by Ms. M.-A. to keep the content of the messages private and not use them or further disseminate them.
[47] I recognize that this factor imports a risk analysis into the decision of whether Ms. M.-A. has a reasonable expectation of privacy over information she shared with W.M. As the courts have repeatedly said, risk of further dissemination is not determinative. It is nonetheless relevant that Ms. M.-A. chose to give W.M. the information he now wishes to use and she did so in a manner that she knew would create a permanent record that he could save. The kind of risk at issue on the facts of this case is quite different from the risk at issue in Sanelli or Marakah, namely that the state might intercept or make a permanent record of the communication.
There was no trickery or deceit in the case at bar. The risk that this information could be shared with another person was obvious, as it is to anyone who communicates with a person in such a manner.
[110] The purpose for which these communications occurred appears to be just simple conversation between two people about their day to day life. There is no suggestion that the complainant was sending information to the applicant for a limited purpose.
[111] The content of these messages is not of a type expected to be found in records enumerated in s. 278.1. As just stated, it is just simple conversation between two people. The content of the WhatsApp messages are not highly personal or intimate. The contents are rather innocuous.
[112] There is no indication that the information is meant to remain private or that it remain between the two parties to the conversation.
[113] There is nothing about the content of the majority of these messages that would compromise the dignity or personal security of the complainant. Having said that, there are a few messages that do contain some information that could constitute other “sexual activity” for the purpose of s. 276 and this will be dealt with by a separate application. The applicant outlined some specific areas which, it is agreed, will require a s. 276 application, and this court found a few other areas that might fall into the same category if relied upon at trial. The fact that any messages relating to the complainant’s sexual activities will form part of a separate application mitigates any risk that the complainant’s personal dignity or security will in any way be undermined by the messages. The judicial determination of admissibility regarding the sexual content of these messages protects the complainant’s privacy interest and the broader policy concern of encouraging people to come forward and to seek counselling services.
[114] Section 8 of the Charter does not apply directly in this case. This is not a situation where messages were searched or seized by a state power, rather the applicant has retained them since the complainant sent them to him. Thus, while the case law on reasonable expectation of privacy in the context of s. 8 is instructive, as the court found in W.M., different considerations shape and impact the analysis when the applicant is a “private citizen defending himself against criminal charges”. As stated in the s. 8 case law, “the tattletale risk is one that is reasonable to ask citizens to bear in a free and democratic society”.
[115] While “records” in the hands of a third party and those in the hands of the accused are both now captured by this legislation, there is a difference between the two. The types of items listed in s. 278.1 appear to either be things that would be expected to reside in the hands of third parties, such as therapeutic or counselling records, or things that are only to be seen by the person creating it, such as a diary. The listed items in s. 278.1 are things that are created in a confidential context or intended only to be seen by the person authoring them, but certainly not intended to be in the possession of or disclosed to the accused person. There has, historically, been a goal to prohibit fishing expeditions and misusing information that was created or shared for specific and limited, often professional, purposes. When third party records find their way into the possession of the Crown without the knowledge or consent of the complainant, steps can be taken, pursuant to the legislation, to protect the privacy rights.
[116] However, records in the hands of the accused are different. The concern is not about the accused possessing the information, but rather the use of that information. Surely, the reasonable expectation of privacy analysis must be assessed differently, and not in the same manner as one would assess a reasonable expectation of privacy with respect to state intrusion or with respect to records held by third parties. The concern of the complainant cannot possibly be that the information is in the hands of the accused; in this case, it was she who gave it to him willingly. The concern of the complainant can only be how the accused is going to use that information, in this case to assist himself to defend against allegations of which he is presumed innocent. In the case of information already in the hands of the accused, there is no concern about a fishing expedition, as the information is already known. Any concern about misuse of the information will be governed by the already existing rules of evidence. It is the view of this court that the labelling of material in the hands of the accused as a “record” must be undertaken very cautiously so as to only capture those things that truly are included in the list contained in s. 278.1, such as therapeutic records or a diary in the hands of the accused, or those over which a clear reasonable expectation of privacy can be demonstrated. It is the view of this court that the material captured by this second category should not be overly broad.
[117] Section 7 of the Charter is engaged for the accused. Section 7 is a fundamental tenant of our criminal justice system. The complainant and the applicant are now in an adversarial relationship. The applicant is accused of very serious crimes. While the complainant may have believed at the time that the communication was simply between her and the applicant, it is not now reasonable for her to expect that the applicant would keep private information that could advance his defence. In enacting this section of the Criminal Code, Parliament could not have intended to attribute such an expansive definition to that of “records”, such that an accused person’s section 7 rights would be infringed. If these text messages fall into the category of personal information over which there is a reasonable expectation of privacy, then anything shared between the two parties could likewise fall into this category, such as a handwritten note, a birthday card, a photograph, a voice mail message. This would lead to an absurd result which would, in allegations of domestic violence, require the applicant to seek permission of the court to defend themselves with anything, if it was recorded in some way. Yet, the accused has always been at liberty to testify to information that the complainant provided to him verbally without recording it in some fashion. It is also required that such information be presented to the complainant in the context of the Browne v. Dunn rule.
[118] Should the applicant decide to testify, the information in the messages between the complainant and the applicant would likely be discussed as it may be relevant to the characterization of the relationship. There is no general rule prohibiting the applicant from testifying about the content of the messages, subject to factors such as relevance and, of course, the rules relating to sexual activity. The messages, therefore, enhance the truth-seeking function of the courts, as rather than rely on the memory of the applicant for exact words used, these messages provide a record on which the court can rely in determining the credibility and reliability of the complainant, which is apparently a central issue in this case.
[119] Further, the complainant would likely be at liberty to use such text messages from the accused to support her narrative. If the complainant would be able to use them, so should the accused.
[120] The Crown submitted that when dealing with this initial question of whether the material amounts to a record, the court should err on the side of caution and determine it to be a record, as just because it is a record does not mean that the accused cannot use it. According to the Crown, determining it to be a record simply means that the accused will need to satisfy the criteria set out in the legislation.
[121] This should not be the manner in which these applications are approached. Determining material to be a record carries with it great consequences. The material then becomes presumptively inadmissible. If the application reaches a hearing, the material will be disclosed to the complainant. This suggestion by the Crown goes against cases such as Hunter v. Southam and all those that follow which make it clear that the question of reasonableness is a serious inquiry to be conducted by the court. The majority of the Supreme Court of Canada in Mills (1999) noted that the broad definition of “record” was rendered constitutional by its limitation to those records in which there is a reasonable expectation of privacy. The characterization of material as a record should be carefully considered by the court.
Conclusion
[122] In this case, there was no evidence that the complainant even has a subjective expectation of privacy in the WhatsApp messages. The complainant openly referred to the messages in her preliminary hearing evidence. However, even assuming that she does have such an expectation, it cannot be reasonable in these circumstances for the reasons stated above.
[123] It follows that the applicant is, therefore, not required to bring an application under s. 278.93 before using the records in question at the trial. The WhatsApp messages shall be marked as Exhibit 1 on this voir dire and remain sealed unless adduced in evidence by the accused at his trial.
[124] Having concluded that these materials are not records pursuant to s. 278.1, however, does not mean that the materials are necessarily relevant to an issue at trial. This court is not ruling on the actual admissibility or the use of the communications at trial. It is still open to the Crown to object, and the court to intervene, in the event that the proposed use of these communications at trial engages s. 276, where the probative value of the evidence is substantially outweighed by its prejudicial effect, or where other rules of evidence apply, such as determinations of relevance. This will be determined as the trial unfolds.
[125] With respect to any messages that are captured by s. 276, it is the view of this court that there are a few which could possibly fall into this category, specifically
20/06/17 – page 23 – 5th message down on the page
25/06/17 – page 31 – last two messages on the page
11/07/17 – pages 61-64 – already conceded by Applicant to involve s. 276
20/08/17 – 21/08/17 – pages 110-111 – already conceded by Applicant to involve s. 276
30/08/17 – pages 122-3
05/09/17 – pages 132-3
If it is intended that these messages are to be relied upon at trial, there will need to be a judicial determination as to admissibility pursuant to the legislation.
[126] At the end of this hearing, the applicant raised a further issue about the timing of a s. 276 application and the concern that the complainant will have notice of the information prior to commencing her testimony. The applicant has not argued this point as part of their written materials or in oral submissions. As counsel were advised by this court, this issue will need to be addressed after counsel have received my ruling on this application and are able to assess next steps.
[127] As this ruling is being released in the midst of the COVID-19 pandemic, counsel are requested to schedule a conference call with the court through the trial co-ordinator when ready to discuss next steps. The next dates scheduled for this matter, which remain in place, are currently June 9 and 12, for stage 1 and 2 of the 276 application, with a trial commencing on December 7, 2020.
Justice V. Christie
Released: March 31, 2020
March 31, 2020 – Corrections:
Para. 7 seventh sentence now reads: If the court decides to hold a hearing, the complainant has a right to participate and to be represented by counsel. At that stage, the complainant would receive a copy of the written application.
Para. 14 second sentence now reads: Their marriage was arranged through their families.
Para. 37 third sentence now reads: Upon entering into this two-stage process, a determination has already been made that a reasonable expectation of privacy exists.
Para. 70 number 8 now reads: This hearing should be conducted in camera, and there should be a publication ban.
Para. 96 second sentence now reads: The defence would not disclose how they had obtained the materials.
Para. 113 fourth sentence now reads: The fact that any messages relating to the complainant’s sexual activities will form part of a separate application mitigates any risk that the complainant’s personal dignity or security will in any way be undermined by the messages.