Court File and Parties

COURT FILE NO.: CR-18-1281

DATE: 20200831

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Scott McFarlane

BEFORE: Stribopoulos J.

COUNSEL: Mr. G. Hendry, on behalf of the Crown / Respondent Ms. C. Kerr, on behalf of Mr. McFarlane / Applicant

HEARD: August 28, 2020, via Zoom videoconference

ENDORSEMENT

Introduction

[1] Mr. McFarlane is charged with sexual interference, making sexually explicit material available to a child, and luring a child.

[2] The charges stem from allegations that Mr. McFarlane, who, at the time, was the complainant's gymnastics coach, touched her inappropriately. And that he also sent a photograph of his genitals to the complainant through social media.

[3] In advance of trial, defence counsel, Ms. Kerr, brought an application for direction from the court concerning whether various materials qualify as a "record" under s. 278.1 of the Criminal Code. The answer will determine whether the substantive and procedural requirements set out in s. 278.92 to s. 278.94 of the Criminal Code govern the admissibility of these materials at trial.

[4] Some of the materials for which Ms. Kerr sought guidance formed part of Crown disclosure. Others, which Ms. Kerr described but did not produce for review by the court, were collected by the defence through alternate sources. For the most part, the parties agree that these materials do not attract a reasonable expectation of privacy. Therefore, they do not come within the definition of a "record" found in s. 278.1.

[5] However, there is one item about which the parties disagree; a letter written by the complainant. Accordingly, the court must decide whether the letter meets the definition of a "record" under s. 278.1 and thereby attracts the operation of the admissibility regime established by sections 278.92 to 278.94 of the Criminal Code.

The Letter at Issue

[6] The complainant wrote the letter, which she addressed to a friend. In it, the complainant expresses her feelings about the accused. The complainant never sent the letter. Instead, she discarded it in the trash inside her home. The complainant's mother retrieved the letter from the trash bin and provided it to the police. The police shared the letter with the Crown. Ultimately, the Crown provided a copy of the letter to defence counsel as part of disclosure.

[7] At the preliminary inquiry, which took place in late September and early October 2018, defence counsel cross-examined the complainant about the letter. The complainant acknowledged authoring it, but the questioning did not touch on its contents. The letter did not become an exhibit at the preliminary inquiry.

The Legislative Scheme

[8] Following the preliminary inquiry, on December 13, 2018, Bill C-51, 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 ("Bill C-51") came into effect. It amended the definition of "record" found in s. 278.1 of the Criminal Code. That section now reads:

For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

[9] Additionally, the amendments added s. 278.92 to the Criminal Code, which is an entirely new provision that provides:

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, 210, 211, 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.

[10] Subsection 278.92(2) sets out the substantive preconditions for the admissibility of records concerning the complainant. The requirements vary depending on whether a record also contains information that would engage s. 276 (evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge). If it does, then admissibility requires meeting the conditions in s. 276(2): Criminal Code, s. 278.92(2)(a). And, in all other cases, a determination 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: Criminal Code, s. 278.92(2)(b). Subsection 278.92(3) then enumerates factors the court must consider when weighing probative value and prejudice under s. 278.92(2).

[11] Section 278.93 addresses various matters of procedure concerning applications to introduce evidence under s. 278.92(2) or s. 276(2), including: the need for an application (ss.(1)); its formal requirements (ss. (2)); that applications be heard in camera (ss. (3)); and, after a preliminary vetting, the authority of the court to embark on an admissibility hearing (ss. (4)).

[12] Finally, if the judge decides to hold an admissibility hearing, section 278.94 addresses matters of procedure at such hearings, including: that they also take place in camera (ss. (1)); the non-compellability of the complainant (ss. (2)); the right of the complainant to be represented by counsel at the hearing, and to be informed of that right (ss. (3), (4)); and the obligation on the judge to provide reasons (ss. (5)).

Positions of the Parties

[13] On behalf of Mr. McFarlane, defence counsel makes two principal submissions. First, as a matter of statutory interpretation, she submits that the scheme only reaches materials in the accused's possession or control. And not, Ms. Kerr submits, materials like the complainant's letter, that police collected during their investigation, then shared with the Crown, and that the Crown disclosed to the accused.

[14] Alternatively, should the court conclude that the legislative scheme reaches materials that form part of Crown disclosure, Ms. Kerr argues that the complainant does not enjoy a reasonable expectation of privacy in the letter. In that regard, Ms. Kerr contends that the complainant threw away the letter and thereby abandoned any privacy interest in it. In support of that position, Ms. Kerr relies on the Supreme Court of Canada's decision in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579.

[15] In contrast, for the Crown, Mr. Hendry emphasizes the expansive definition of "record" found in s. 278.1. He points out that nothing within that definition serves to confine its scope only to materials in the accused's possession or control. Instead, Mr. Hendry argues, the plain meaning of the definition reaches any materials containing personal information for which there is a reasonable expectation of privacy. Mr. Hendry submits that the definition encompasses materials provided to the defence as part of Crown disclosure.

[16] Further, Mr. Hendry submits that the letter meets the definition of a “record”. He argues that the circumstances involving the letter are different than those in Patrick. Unlike Mr. Patrick, the complainant put the letter in the trash inside her house, not at the property's boundary for collection. Until placed at the curb for garbage pick-up, Mr. Hendry argues the complainant retained a reasonable expectation of privacy in the letter that was not extinguished by her mother retrieving it and sharing it with the police.

Law and Analysis

[17] The application raises a question of statutory interpretation. I agree with the Crown that there is nothing within the definition of "record" in s. 278.1 to restrict its scope only to materials that are in the possession or control of the accused. However, the wording of any particular statutory provision standing alone is rarely decisive.

[18] Under the modern approach to statutory interpretation, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see Re Rizzo & Rizzo Shoes, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at pp. 40-41; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[19] Accordingly, it would be an error to read s. 278.1 in isolation. Its proper interpretation requires reading it in context. Importantly, it defines "record" "[f]or the purposes of sections 278.2 to 278.92". These sections involve two very different situations that both serve to implicate the dignity, privacy, and security interests of complainants.

[20] The first controls applications for the production of records concerning "a complainant or a witness" when the accused faces a charge for an enumerated offence. These are known as "third party records applications" or "Mills applications" and predate Bill C-51: see R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668. Under that regime, a prosecutor who comes into "possession or control" of such records must "notify the accused that the record is in the prosecutor's possession" but "not disclose the record's contents": Criminal Code, s. 278.2(3). Sections 278.2 through 278.91 prescribe rules and procedures by which an accused can endeavour to obtain the production of such records.

[21] The second controls the admissibility of evidence where an accused faces a charge for an enumerated offence. Section 278.92(1) now restricts an accused's ability to adduce into evidence a "record relating to a complainant that is in the possession or control of the accused." As explained above, before the admission into evidence of such a record, a judge must decide admissibility under s. 278.92(2). Section 278.93 addresses the procedural requirements for such applications. Lastly, s. 278.94 provides procedural guidance for conducting hearings considering the admissibility of such evidence.

[22] Although s. 278.1, read alone, could be understood as reaching the letter at issue on this application, read in the context of the two types of applications to which the definition applies, it does not. I have come to that conclusion for two principal reasons.

[23] First, there is the plain meaning of the text found in s. 278.92(1). It provides that "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 …" (emphasis added). Parliament could have chosen to express the prohibition in broader language. For example, by providing, "no record relating to the complainant shall be admitted in evidence." Instead, Parliament chose to restrict the admissibility of records to those in the accused's possession or control. If the accused obtains a document as part of Stinchcombe disclosure or because of a successful Mills application, it makes little grammatical sense to describe such a record as being "in the possession or control of the accused."

[24] Second, there is the importance of maintaining coherence between the two types of applications to which the definition of "record" in s. 278.1 applies. Recall that s. 278.2(3) imposes a positive duty on the Crown to keep a "record" relating to a complainant or witness confidential, and only disclose the record's existence to the defence. Consequently, such records should ordinarily not form a part of Crown disclosure under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Instead, the Crown fulfills its disclosure duty concerning such records by disclosing their existence to the accused. After that, production depends on the accused bringing a successful Mills application.

[25] The Mills production regime requires the court to consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and the right to privacy, personal security and equality of the complainant or witness: Criminal Code, s. 278.5(2). The person to whom the record relates enjoys a right to participate in the hearing, including the right to be represented by counsel: Criminal Code, ss. 278.4(2), (2.1).

[26] It would make little sense if, once produced after a successful Mills application, the admissibility of such records would then also need to be filtered through the analogous substantive and procedural protections found in s. 278.92 through s. 279.94. The result would be a duplicative analysis and procedure that would achieve little to no appreciable benefit for the complainant. At the same time, it would occasion unnecessary expense and inconvenience for everyone involved and needlessly hamper the efficiency of the criminal justice system. It is difficult to believe that Parliament would have intended such consequences.

[27] Only one interpretation flows from the plain language found in both s. 278.1 and s. 278.92(1), read together, while also maintaining coherence between the regimes governing production and admissibility applications. Section 278.92 only applies to a "record" relating to a complainant that an accused has come to possess or control through some means other than by receiving a copy as part of Crown disclosure or through a successful Mills application. That interpretation is most harmonious with the scheme of these provisions, their object, and Parliament's intention.

Conclusion

[28] With the interpretation settled, I now turn to consider the letter at issue on this application. The Crown provided the letter to the accused as part of disclosure. As a result, it does not qualify as a "record" in the accused's possession or control. Therefore, the letter's admissibility does not depend on s. 278.92(1) of the Criminal Code. Instead, its admissibility at trial turns only on an application of the common law rules of evidence.

Justice J. Stribopoulos

Date: August 31, 2020