Court File and Parties

COURT FILE NO.: CR-19-70000184-0000 DATE: 20200727 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – B.H. Applicant

Counsel: V. Hentz, for the respondent S. Chung, for the applicant

HEARD: June 16, 2020.

Reasons for Decision

SCHRECK J.:

[1] B.H. is charged with sexual assault, aggravated assault and a number of other offences in relation to a former intimate partner. After B.H. was charged, the complainant left voicemail messages for him which counsel for B.H. would like to rely on in cross-examining her at trial. He has accordingly brought a motion for directions and asks this court to determine whether the voicemail messages are “records” within the meaning of s. 278.1 of the Criminal Code . [1] If they are, then B.H. will have to bring an application pursuant to s. 278.92 to have the messages admitted. If they are not “records”, no application is required.

[2] Whether or not the messages are records will depend on whether the complainant has a reasonable expectation of privacy in relation to them. For the reasons that follow, I have concluded that she does not.

I. FACTS

A. The Allegations

(i) The Alleged Assaults

[3] The applicant and the complainant were involved in an intimate relationship for four or five months. On a date in February 2017, they spent the day together at the applicant’s home. The complainant alleges that while she was there, the applicant had sexual intercourse with her without her consent.

[4] Shortly after the complainant left the applicant’s home, she was approached by a masked man she did not know who attacked her and slashed her with a sharp object, causing serious injuries. It is the Crown’s theory that this man was the applicant’s co-accused and that he was acting on the applicant’s directions. The complainant managed to get away from her attacker and called 911.

[5] The applicant was arrested after the attack on the complainant and released on bail about a week later. One of the conditions of his bail was that he have no direct or indirect contact with the complainant.

(ii) Failing to Comply With a Recognizance – The Post-Arrest Telephone Calls

[6] According to the complainant, the applicant telephoned her several times in March and attempted to persuade her that he was not responsible for the attack on her. The complainant testified at the preliminary inquiry that these calls terrified her. One of the calls from the applicant was recorded by the complainant’s daughter. The recording was provided to the police and the applicant was charged with failing to comply with a recognizance and criminal harassment. He was again released on bail.

B. The Voicemail Messages

[7] This application relates to more than one voicemail message the complainant left for the applicant between August and November 2017. [2] These messages do not contain any discussion about the complainant’s sexual history or any sexual activity involving her. They support the inference that the complainant bears some animus towards the applicant.

[8] The complainant acknowledged at the preliminary inquiry that she had telephoned the applicant after she was attacked because she wanted to know why he had done what he did and because she wanted “closure”. According to her, she made such calls “maybe once, twice, maybe three times.”

[9] The complainant’s credibility is central to the Crown’s case. Counsel for the applicant is of the view that the voicemail messages may be relevant to the trier of fact’s assessment of her credibility.

II. ANALYSIS

A. The Statutory Scheme

[10] In December 2018, Parliament amended the Criminal Code sections with respect to the admissibility of “records” relating to complainants in prosecutions for sexual offences. [3] A “record” is defined in s. 278.1:

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.

[11] Section 278.92 of the Criminal Code provides that no “record” shall be admitted into evidence unless the court follows the procedures set out in ss. 278.93 and 278.94 and concludes that it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. If the evidence relates to sexual activity on the part of the complainant, it will only be admissible if it meets the conditions in s. 276.

B. Reasonable Expectation of Privacy

[12] The voicemail messages in this case do not fall into any of the specific categories enumerated in s. 278.1, such as therapeutic records or personal journals. That list is not exhaustive but merely lists examples of types of records that fall into the broader category of “any form of record that contains personal information for which there is a reasonable expectation of privacy.” Whether the complainant’s voicemail messages fall into that broader category is the issue that must be determined.

[13] The term “reasonable expectation of privacy” arises in a number of legal contexts. The meaning of the term will depend on the context, but there are some basic principles which were outlined in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at paras. 60-68, which may be summarized as follows:

(1) Determining whether there is a reasonable expectation of privacy requires “a contextual assessment that takes into account the totality of the circumstances”. (2) Privacy is not an “all-or-nothing” concept and an expectation of limited privacy in one area may not amount to waiver of an expectation of privacy in other areas. (3) There are a number of different types of privacy interests. (4) “Reasonable expectation of privacy” is a normative rather than a descriptive standard.

[14] The principle that a reasonable expectation of privacy is a normative rather than a descriptive standard is of particular importance in the context of s. 278.1 of the Code. As was observed in R. v. Mills, [1999] 3 S.C.R. 668, at para. 59 with respect to an earlier version of s. 278, one of the purposes of the statutory scheme respecting complainants’ records is “to encourage the reporting of incidents of sexual violence [and] to recognize the impact of the production of personal information on the efficacy of treatment.” Determining the scope of a reasonable expectation of privacy must be consistent with these objectives. Ultimately, the issue is “whether an independent, informed observer would think that [the complainant] ought to have an expectation of privacy over the information, given the circumstances”: R. v. W.M., 2019 ONSC 6535, at para. 40.

C. Totality of the Circumstances

(i) The Nature of the Information

[15] As noted, determining whether there is a reasonable expectation of privacy requires “a contextual assessment that takes into account the totality of the circumstances”: Jarvis, at para. 60. In R. v. Mai, 2019 ONSC 6691, at para. 20, Roberts J. suggested that an inquiry into whether a reasonable expectation of privacy exists should begin by dividing the relevant circumstances into two broad categories: (1) the nature of the information contained in the record; and (2) the context in which the record was created and obtained by the accused. I agree with that approach.

[16] As was observed in Mai, in the s. 278.1 context, the nature of the information will often be dispositive of whether there is a reasonable expectation of privacy. For example, if it falls within any of the categories enumerated in s. 278.1, such as medical, psychiatric or therapeutic records, or if it relates to sexual activity on the part of the complainant and is therefore subject to s. 276, then it is clear that there will be a reasonable expectation of privacy. Conversely, if the records do no more than describe mundane matters, this may conclusively establish a lack of any reasonable expectation of privacy. In this case, the voicemail messages do not fall into any of the categories described in s. 278.1, nor do they describe mundane matters.

[17] Crown counsel (who it will be recalled has not seen the communications) submitted that if the messages express the complainant’s thoughts and feelings, this may suggest that there is a reasonable expectation of privacy. I agree that an expression of one’s thoughts and feelings may well give rise to a reasonable expectation of privacy: R. v. T.A., 2020 ONSC 2613, at paras. 39-40; R. v. R.M.R., 2019 BCSC 1093, 56 C.R. (7th) 414, at paras. 38. However, unlike with the categories enumerated in s. 278.1, this is not conclusive. For example, thoughts and feelings expressed on social media to which anyone has access are unlikely to give rise to a reasonable expectation of privacy. Whether an expression of thoughts and feelings gives rise to a reasonable expectation of privacy will depend on the context.

(ii) Context

[18] In this case, the communications do reveal the complainant’s thoughts, feelings and opinions. It is therefore necessary to examine the context in which the communications were made and obtained by the applicant. Several factors are important in determining whether a communication gives rise to a reasonable expectation of privacy:

(1) What is the nature of the relationship between the parties to the communication? Is there an element of trust in the relationship? ( (2) How was the communication obtained by the accused? Was it voluntarily surrendered? Surreptitiously recorded? Provided by a third party? Was it obtained through fraud or deceit? (3) What was the purpose of the communication? (4) Was there an expressed wish to keep the communications private? (5) Were others privy to the communication and if so, who? If the communications were through social media, what were the privacy settings? (6) What are the policy implications of finding that the complainant does or does not have a reasonable expectation of privacy?

See R. v. M.S., 2019 ONCJ 670, at para. 50; W.M., at para. 41; Mai, at para. 22.

[19] I agree with Roberts J. in Mai, at para. 23, that although the Supreme Court of Canada has rejected a “risk analysis” in determining whether there is a reasonable expectation of privacy in the context of s. 8 of the Charter (see R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 43-44; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 40-41), such an analysis may be appropriate in the context of s. 278.1:

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] 1 S.C.R. 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.

The fact that a complainant accepted a risk that a communication would be divulged to others, while relevant, is not dispositive: W.M., at para. 40.

(iii) The Objectives of the Statutory Scheme

[20] In examining the context in which a record was created, regard must be had for the objectives of the statutory scheme. The provisions are designed to protect the complainant’s right to privacy and to “screen out evidence that is irrelevant, abusive and tending to trigger improper reliance on the ‘twin myths’ that a sexually active complainant is somehow less worthy of belief or more likely to have consented to the specific sexual activity at issue before the Court”: R. v. Ekhtiari, 2019 ONCJ 774, at para. 9. The “twin myths” are not the only myths which have unfortunately persisted in sexual assault cases. There are also myths respecting how sexual assault victims are expected to behave: R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2.

[21] While the statutory objectives must be kept in mind, it must also be recalled that the issue at this stage is not whether the records at issue are admissible at trial. That is an issue to be determined by the trial judge. At this stage, the only issue is whether a reasonable expectation of privacy exists in relation to them.

D. Application to the Case at Bar

(i) The Nature of the Relationship

[22] At the time the voicemail messages were left, the complainant and the applicant were former intimate partners. More importantly, they were in an adversarial relationship in that she was the complainant with respect to very serious charges the applicant was facing: W.M., at para. 50; Mai, at para. 25. Furthermore, the complainant had herself turned over a recording of a communication from the applicant to the police to be used as evidence against him. In these circumstances, it would not have been reasonable for her to expect that he would not similarly use her communications for a forensic purpose.

(ii) How the Communications Were Obtained

[23] The applicant did not obtain the communications by fraud or deceit. The recordings were not made surreptitiously. Rather, the complainant chose to leave voicemail messages for him in the knowledge that by doing so, she would be creating a permanent record of her communications.

(iii) The Purpose of the Communications

[24] My ability to comment on the purpose of the communications without divulging their content is limited. In my view, they are intended to express the complainant’s opinion about a number of things in a way that does not give rise to a reasonable expectation of privacy.

(iv) Expressed Wish for Privacy

[25] There is nothing in the communications that suggests an expectation that they would remain private. Although they contain the complainant’s thoughts, feelings and beliefs, these are not expressed in a way that suggests that she was confiding in the applicant. To the contrary, the communications clearly indicate an animus towards him.

(v) Access by Others

[26] As these were voicemail messages, no one was privy to the communications at the time they were made. However, as noted earlier, the complainant knowingly recorded the messages and must have known that people other than the applicant may listen to them.

(vi) Policy Implications

[27] In my view, a finding that there is no reasonable expectation of privacy in these communications will not result in undesirable policy implications, such as discouraging reporting by victims of sexual violence.

III. DISPOSITION

[28] For the foregoing reasons, I have concluded that the complainant does not have a reasonable expectation of privacy in relation to the voicemail messages. They are not “records” within the meaning of s. 278.1 of the Criminal Code and no application pursuant to ss. 278.93 and 278.94 is necessary for them to be admitted at trial.

Justice P.A. Schreck

Released: July 27, 2020

Footnotes

[1] I heard this application in my capacity as a case management judge appointed pursuant to s. 551.1(1) of the Criminal Code.

[2] The parties have agreed to follow the procedure described in R. v. W.M., 2019 ONSC 6535, at paras. 11-28. As a result, I have been provided with recordings and transcripts of the messages while Crown counsel was provided with a judicial summary of the messages, but not the messages themselves.

[3] An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, S.C. 2018, c. 29, ss. 23-25. The records in this case are in the possession of the accused and were created prior to the amendments. Neither party has raised any issue with respect to the retrospectivity of the amendments. In any event, they are in my view procedural in nature and therefore operate retrospectively: R. v. Gibson, 2010 ONSC 6374, 264 C.C.C. (3d) 121, at paras. 14-15; R. v. M.H., 2005 BCCA 419, 201 C.C.C. (3d) 47, at para. 23.