R. v. Shin Wook Lim
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Shin Wook Lim
BEFORE: Molloy J.
COUNSEL: D. Robitaille and K. Flanagan, for the Applicant (Lim)
J. Witkin and L. Fineberg, for the Responding Party (Crown)
M. MacGregor, for the Responding Third Parties (A.E. and V.S.)
HEARD: September 17, 2020 by teleconference
ENDORSEMENT
Disclosure Motion
Introduction
1Shin Wook Lim is charged with sexual assault and other related offences. One of the complainants in these charges is A.E. She disclosed in 2018 that she had been sexually assaulted by Mr. Lim, during a period of time when he was her Taekwondo coach, starting when she was 15 years old. After A.E. had left Taekwondo and started university, she took a course in Criminology, which included lectures on the crime of sexual assault. As part of the course requirements, she wrote an essay about sexual assault charges that had been brought against a Taekwondo instructor in Winnipeg. A.E. has testified that it was at this time she began to have flashbacks about what Mr. Lim had done to her and understood for the first time that it was wrong. She disclosed to her mother (and others) that she had been abused and then went to the police. Mr. Lim was criminally charged. Included in the same indictment are sexual assault charges involving another young woman Mr. Lim had coached. The Crown has given notice that they will seek to lead similar fact evidence at trial from two other young women. The preliminary hearing started in May 2019, was interrupted for a period of time and completed in July, 2019. The trial is scheduled to proceed before me commencing October 13, 2020.
2Earlier this summer, the defence brought a s. 278 application. On August 22, 2020, Ducharme J. ordered disclosure of some communications between A.E. and one of the proposed similar fact witnesses (S.C.). Included in that disclosure was an exchange of text messages between A.E, and S.C. on March 23, 2019, in which A.E. advised that she might be part of a CBC documentary about the case against Mr. Lim, that CBC were looking at exposing the abuse going on in Taekwondo with two coaches charged with sex crimes in the same year, and that S.C. might be included in that as well. The two talked about the possibility of being “Canadian celebrities”. A.E. said her lawyers were talking to CBC first to ensure that this would not interfere with the charges against Mr. Lim or the civil lawsuit she was bringing against him.
3This disclosure was the first information the defence had as to the proposed CBC documentary, or about any discussion between A.E. and the CBC. Defence counsel sought further information from the Crown. Prior to that, the only information the Crown or police had about the CBC documentary was that in March 2019 A.E. had mentioned to the Officer in Charge (D.C. Ross) that she had been approached by a reporter but had declined to speak to them because she was concerned it might jeopardize the criminal trial. D.C. Ross made no note of this at the time as she considered it inconsequential given that A.E. had refused to be interviewed. At the request of the Crown, D.C. Ross interviewed A.E. on August 30, 2020. What was learned from that interview was disclosed to the defence, the main points being as follows:
- The initial contact came about through A.E.’s mother (S.V.). S.V. was approached by a friend who had a daughter on the same Taekwondo team as A.E. and who also had a friend who was a CBC reporter for the Fifth Estate. As a result of that connection, an approach was made from that reporter to S.V.
- The first contact was through an email of May 2, 2019. CBC wanted to talk to A.E. and film her about how she was feeling as the preliminary hearing approached and commenced from May 6, 2019.
- A.E. was in touch with three CBC people, the main reporter being Lisa Ellenwood.
- A.E. met with the CBC probably five or more times, including before the preliminary in May 2019 and again around when it resumed in July, 2019.
- A.E.’s last contact with CBC was on August 25, 2020, when they called for an update and she told them the trial would start on October 13, 2020.
- She could not remember exactly what she said in the CBC interviews, but her recollection was that it was about how she was feeling, the nature of the process, the kinds of feedback she was getting from other people, and the stress she was under. She did not think she discussed the substance of the case itself, or what had happened to her. She said this had been a condition set in advance, that there would be no discussion of the case itself. However, she said she could not be definite about what she had said.
- The only records she had of any contact with the CBC were emails and text messages between herself, her mother and the CBC, which she agreed to turn over to the police.
- Her lawyer, Mr. MacGregor, had met with the CBC first to lay out the parameters of what would be discussed.
- She did not recall putting the CBC in touch with anybody else, but thought the CBC had asked if she would be OK with them talking to her mother’s friend and her daughter (who had also been on the team) to get the perspective of outsiders.
- She believed CBC was doing a five or six part series and that other cases would also be featured. She did not know what stage the production had reached but thought it would not be aired until after the trial was over, if at all.
- Both her mother and her lawyer had also been interviewed by CBC.
- Apart from her mother, boyfriend, and lawyer, the only other person she could recall discussing with the CBC was the potential similar fact witness S.C. with whom she had a text exchange in which they were joking, and not being serious about it. She did not recall saying that S.C. might also be in the documentary.
- The day after she testified at the preliminary in May, 2019, and the hearing was then delayed, CBC contacted her to see if she would do an interview and she refused.
4A.E. and S.V. turned over to the police all the emails and texts they had exchanged with the CBC. The Crown has organized those under headings A-1 through A-12, V-1 and V-2. The defence sought disclosure from the Crown of all these communications based on Stinchcombe. Having reviewed them the Crown formed the preliminary view that they might fall within s. 278 of the Criminal Code as containing personal information with a reasonable expectation of privacy and that both A.E. and S.V. were entitled to separate representation.
5The defence takes the position that these materials are relevant to the conduct of the defence, and in particular to the defence application to obtain third-party disclosure from the CBC of their notes and any interviews they conducted (“the O’Connor application”). The defence now applies for disclosure of these materials on the basis that (1) they are not clearly irrelevant, and are disclosable by the Crown as part of its Stinchcombe duty of disclosure; and, alternatively, (2) are disclosable as likely relevant under s. 278.
6With the consent of all parties, the application was argued before me by conference call on September 17, 2020. Prior to the argument, both the Crown and counsel for A.E. and S.V. very reasonably agreed that, without conceding that the first step in s. 278 process had been met, they had no objection to my reviewing the subject material in advance of the hearing in order to expedite matters. Therefore, I obtained and reviewed the communications in advance of the hearing.
The Position of the Crown and the Third Parties (A.E. and V.S.)
The Crown submits that the materials in question, when considered as a whole, contain personal information and carry with them a reasonable expectation of privacy within the meaning of s. 278.1 of the Criminal Code. Therefore, the Crown contends that this is the regime that governs. Further, the Crown argues that all of the messages should be looked at together to determine whether there is an expectation of privacy for the whole of the communications, rather than considering those questions piecemeal by looking at each message individually. The Crown’s position is that the CBC interviews do not relate to the substantive allegations against Mr. Lim, but only to the emotions experienced by the complainant during the course of the court proceedings. Therefore, it is argued, the emails and texts to and from the CBC relate only to the judicial process as opposed to the substantive issues at trial and cannot assist the defence. A.E. and V.S. support the Crown’s position.
7The Crown has divided the subject emails and texts into three categories: (1) communications that are clearly irrelevant; (2) communications that relate only to matters of scheduling and which may have a lower expectation of privacy, but also little relevance; and (3) communications that may involve matters of solicitor and client privilege.
8The position of the defence is that these communications do not fall within the definition of “record” under the s. 278 because there was no reasonable expectation of privacy. The defence argues that communications with a CBC reporter with a view to being featured in a documentary to be aired to the entire nation is the very antithesis to an expectation of privacy. Further, even if A.E. wanted to keep her discussions with the CBC secret, her expectation of privacy is not reasonable because it is for the improper purpose of not wishing to harm the Crown’s case and keeping “impeachment fodder” away from defence counsel. The defence submits that all of the communications are disclosable under the Crown’s Stinchcombe duty of disclosure, and alternatively, if the s. 278 regime is triggered, must still be produced to the defence as likely relevant to their O’Connor application and their ability to defend the case on its merits.
Dates of Meetings and Interviews
9The Crown and counsel for A.E. concede that it is relevant for the purposes of the O’Connor application to know any specific dates upon which the CBC met with A.E. and/or V.S. or interviewed them. To the extent those dates are known from the emails and text messages, those dates (but not necessarily the communications themselves) should be disclosed.
A-5
10I agree that a contextual approach is necessary. However, even if some communications between the complainant and CBC might meet the test, that does not mean that every communication between CBC and either of the complainants is covered by the s. 278 procedure. Clearly, some of the information is not remotely personal. That information also tends to be completely irrelevant. For example, an email from CBC stating that the cameraman is missing something completely non-personal and asking if anyone has seen it, and the response to that question, cannot be said to be covered under s. 278. It is also clearly irrelevant regardless of which procedure governs. Accordingly, A-5 does not need to be disclosed.
11Similarly, with respect to other communications, while I agree that context is important, I do not accept that the protected nature of one or more emails in a chain renders all the emails in that chain protected. Each communication must be considered separately, while looking at its context within the whole to determine if it should or should not be disclosed.
Scope of the CBC Documentary and Parameters of A.E.’s Involvement
12Some of the emails relate to the scope of the CBC documentary and the terms upon which A.E. would agree to be interviewed for that program. A.E. gave some information to the police on August 30, 2020 as to the scope of her involvement with the CBC. That information is not fully consistent with the text messages she exchanged in March with the similar fact witness S.C., but those exchanges predate the final arrangements with the CBC. There are also other indications in some of the emails that discussions may have gone outside those parameters stated by A.E. in her police interview in August 2020.
13There is some logic to defence counsel’s argument that a claim to a reasonable expectation of privacy flies in the face of talking to a CBC reporter about matters to be broadcast publicly. However, the communications in these emails and text messages are not the CBC interviews themselves and do not relate to anything substantive. A private conversation with a reporter is not necessarily conducted with the knowledge that it will someday become public. There may be a reasonable expectation that these discussions will be private, notwithstanding that anything ultimately revealed to the CBC may be broadcast to the general public.
14It is arguable that these communications constitute personal information: they are essentially the negotiation of the terms of a private contract whereby A.E. will discuss things related to this case with the CBC. These were email exchanges and text messages, which also supports the Crown’s position that they were meant to be confidential. Also, there are specific discussions in some of the emails referring to A.E., through her solicitors, requiring confidentiality until after the trial. In my view, there is at least a subjective expectation of privacy, given that these are email exchanges.
15On the other hand, even though there may be some expectation of privacy, the personal nature of the communications is extremely limited. In particular, statements made by the CBC representative herself are much less likely to raise an expectation of privacy. Further, even though such discussions may be private, their disclosure would not involve the same degree of invasion of personal privacy as would be the case for categories of enumerated “records” such as personal diaries or medical information.
16As noted, there is certainly an argument to be made that such documents contain personal information and were conveyed with the expectation of privacy. Clearly there was a subjective expectation of privacy. Whether that expectation was reasonable, may be debatable. However, it is not necessary to determine whether these communications fall within the definition of “record.” Even if they do, I find they are subject to disclosure. The test for disclosure of the information is met, regardless of which regime applies.
17The nature and extent of what A.E. was discussing with the CBC is directly relevant to the underpinnings of the defence O’Connor application. There are specific references in some of the emails about A.E.’s lawyers ensuring that CBC will not publish anything until after the trial, about not wanting the defence to find out, and being concerned about damage to the prosecution if what A.E. disclosed to the CBC were made public before the trial. One of the arguments raised by the Crown and counsel for the complainant is that the complainant’s personal emotions as she was going through the judicial process are not relevant to the substantive charges against the accused and that since the CBC interviews were limited to that subject, the communications do not meet the “likely relevant” test. I disagree. It is central to that argument that the CBC interactions were limited in the manner suggested. Therefore, communications as to the nature of the interactions is directly relevant, indeed central, to the O’Connor application. For purposes of that application, the defence is entitled to as full a picture as possible as to the scope of the CBC interviews with A.E. and some of the emails provide information as to that scope, which both supplements and goes beyond what A.E. recalled in her discussions with D.C. Ross.
18I have considered all of the factors listed in s. 278.2(a) to (h). I find that it is in the public interest for the documents to be disclosed. Why was the defence focused on there being a need to prevent the documentary from being aired prior to the trial unless there is something in the information shared that would affect the trial? In one email, counsel for A.E. is specifically referred to as wanting to be sure the defence did not find out about the documentary. In another email, counsel is quoted as saying that the documentary cannot air until after the trial decision and any appeal period. This indicates that the concern is not simply about tainting the jury pool, but rather something more substantive. It would be perfectly understandable for counsel to insist that there be no interviews with the press until after the trial so as not to compromise a matter that is before the courts. However, giving secret interviews while extracting a promise that the defence won’t find out about it until after the trial is concluded and appeal periods have expired is a different matter. In my view, the interests of justice and the concern about the fair trial rights of the accused require the disclosure of all information about that arrangement in the subject emails.
19The nature of the document and its subject matter do not attract the high degree of confidentiality as other types of communications might (e.g. medical records, personal diaries, or the like). There is also nothing about requiring such disclosure that would have the effect of deterring individuals from reporting sexual abuse to the authorities. This is about giving press interviews, not about reporting crime to the police.
20Weighing these factors in the balance, I find the prejudice to the complainant and her mother to be minimal. That prejudice is outweighed by the accused’s rights to a fair trial and to the openness of the judicial process.
A-11
21This email from Lisa Ellenwood at CBC was sent to A.E. on October 21, 2019. Basically, it is a series of questions from CBC to A.E. and there does not appear (at least based on the material available to date) that there was ever a response. However, from the questions asked, it appears that the CBC investigation is broader than just A.E.’s emotions with respect to the judicial process itself and relates to the merits of the charges against Mr. Lim. Early during the argument of this hearing, I directed the attention of all counsel to this communication. Nobody could identify any personal information relating to either of the third parties, with the exception of two sentences in the first paragraph. The document has relevance to the O’Connor application, as it provides some confirmation as to the scope of the proposed documentary, and in particular that it may go beyond personal feelings and delve into substantive issues. The Crown and counsel for A.E. and S.V. agreed that the email itself does not divulge personal information about either A.E. or V.S. and therefore does not fall within s. 278.1. In my opinion, this communication is not caught within the s. 278 regime. It is relevant for the defence application for disclosure from CBC. I see no infringement of any privacy right of the complainant or her mother. I therefore ordered disclosure of this communication and took a recess in the hearing so counsel could review it.
22The first paragraph of this email contains three sentences. The first sentence states, “Nice to see you today.” It confirms a meeting on that date and is relevant for that purpose. The next two sentences are private and have no bearing whatsoever to anything related to this matter. Those two sentences were excised before disclosure was made.
V-1
23This communication is an email from A.E.’s mother to D.C. Ross setting out her understanding as to how the CBC contact came about and attaching an email from CBC to V.S. dated May 2, 2019 with the CBC’s proposed terms. Even though it involves V.S.’s mother rather than being sent directly to A.E. directly, it was obviously meant to be shared with A.E. and relates to her interests.
24In my view, the text of V.S.’s email to D.C. Ross is relevant to the defence. It does not contain any information personal to either A.E. or V.S. Most of it confirms what is in the August 30, 2020 police interview in any event. In the email, V.S. refers to A.E. contacting a lawyer and getting advice as to her options with respect to Mr. Lim’s conduct, on the basis of which A.E. contacted the police. Although counsel initially raised a question as to whether this raised an issue as to solicitor and client confidentiality. I do not agree. It has already been disclosed that A.E. consulted this lawyer, that there is a civil case involving that lawyer, and that there is also another lawyer (Mr. MacGregor) representing her in the criminal proceeding. Beyond that nothing is disclosed about any communications passing between the solicitors or the client. A reference as to steps taken based on legal advice received does not breach the confidentiality of the underlying communication.
25The email dated May 2, 2019 from the CBC is also part of the communication labelled A-1, because it was forwarded by V.S. to her daughter. Initially, I thought I would deal with it in that context, believing it had originally been sent by the CBC directly to A.E. However, that is not the case. It is a communication directly to V.S. alone. Accordingly, I will deal with it under this heading.
26The subject heading of the May 2 email is “Update post discussion with lawyer.” It was sent by Lisa Ellenwood, a producer with the Fifth Estate. Ms. Ellenwood states that the CBC is interested in capturing A.E.’s and V.S.’s “emotional journey and the court process.” She advises that based on their discussions with A.E.’s lawyer, they are permitted to film A.E. provided that “everything is embargoed until after the decision” and the lawyer is either present for the filming or is provided with an audio so that she can ensure nothing is said that would “compromise the court proceeding.” She then sets out the CBC proposal for their involvement with A.E., including a time schedule for filming, adding that everything is open for discussion.
27This email was sent at an early stage and there is no clear indication that these were the actual parameters of the ultimate agreement reached or whether CBC and/or A.E. adhered to the terms in the course of the numerous interviews that followed. However, any information relating to the terms upon which information would be shared with the general public through a CBC documentary are relevant for this purpose.
28All of V1 must be disclosed to the defence.
V-2
29V-2 is a series of three emails. The first in the chain was sent from Lisa Ellenwood to V.S. on May 10, 2019 at 3:54 p.m. following the preliminary hearing attendance that day. It is relevant only because it refers to CBC wanting to meet with A.E. for a “few hours” the next day to “debrief” and do some filming.
30V.S. responded by email of the same date at 4:05 p.m. asking if Ms. Ellenwood had been in court that day. She provided some information about court dates already known to the defence. The balance of the email is irrelevant to any issue involving the defence or the O’Connor application.
31The third email in the series, also on May 10, 2019, is from Ms. Ellenwood in response, sent at 5:14 p.m. The first paragraph of that email contains two sentences. The first sentence simply states that Ms. Ellenwood had been in court. The second sentence is personal information about A.E. that is private and irrelevant to any issue affecting either the case itself or the O’Connor application. The balance of the email is about the thrust of the proposed CBC documentary and what they hoped to cover. For the reasons already stated, this is relevant to the defence and of minimal if any prejudice to the privacy interests of the complainant. The second sentence of V-2 shall be excised. The balance of that email must be disclosed to the defence.
A-1
32The group of emails included in A-1 are dated May 2 and 3, 2019. For the most part they are about innocuous details of scheduling, with a few personal daily life details here and there that are personal and of no relevance to the defence. Also included in this group is an email forwarding to A.E. the prior email from Ms. Ellenwood to V.E., which is part of V-1 and which I have already ruled on.
33There is only one email in this chain that I consider to be subject to production. It is dated May 3, 2019 and was sent at 9:50 a.m. by Ms. Ellenwood. It relates to the terms upon which the CBC is permitted to be talking to A.E., including that they should not discuss it with anyone because A.E.’s lawyer does not want the defence to find out. For the reasons stated above with respect to similar exchanges, this email is relevant and must be disclosed to the defence.
34The balance of A-1 is not relevant and need not be disclosed.
A-2
35This group of emails were all sent and received on May 3, 2019. They relate to mundane scheduling matters (which are irrelevant) and personal details (which are private and also irrelevant). The only email of any relevance is the first paragraph of the email sent from Ms. Ellenwood on May 3 at 4:47 p.m. This paragraph refers to discussions between the CBC and A.E.’s lawyer (not protected by solicitor and client privilege) and the parameters of what CBC proposed for their imminent filming. Again, for the reasons previously stated, this paragraph shall be disclosed to the defence.
36The balance of the emails is irrelevant, although any details with respect to dates of any meetings or proposed meetings shall be independently provided to the defence.
A-3
37Apart from the fact that A-3 refers to filming on May 3, 2019, it is irrelevant and need not be disclosed.
A-4
38A-4 consists of six emails sent and received on the afternoon of May 6, 2019 at: 4:28; 4:32; 4:42; 5:17; 5:23; and 5:32. All of them relate to whether the CBC would be permitted to attend and film a meeting between A.E. and her lawyer in preparation for her testimony at the preliminary hearing. The lawyers had originally told CBC that this would be permitted but then changed their minds. If this filming had been permitted, then solicitor and client privilege would be waived. There is otherwise no relevance to this exchange because nothing happened. However, there is one reference to communications with the lawyers that could have relevance to the reasons for proposed restrictions on the timing of any broadcast by the CBC. This has relevance for the O’Connor application, is of marginal (if any) impact on the privacy rights of the complainant, and for reasons already stated, should be disclosed. This portion of the email exchange is in the email sent from Lisa Ellenwood to A.E. at 4:42 p.m. The header with date and time should be disclosed and the first sentence starting with “We spoke to Simona” and ending with “appeal period”. The balance of that emails and the other emails are irrelevant, although it should be clarified that A.E.’s counsel did change his mind and retracted that agreement.
A-6
39The emails in this grouping are more details about scheduling and where filming might take place. There is nothing of any substance and nothing of any relevance to the defence. Although the Crown flagged this exchange as possibly relating to solicitor and client privilege, it is merely a reiteration that on the advice of counsel A.E. is not permitting CBC to film her meeting with her lawyer to prepare for the hearing. There is no waiver of solicitor and client privilege, but neither would disclosing this communication breach privilege. It is simply irrelevant and not subject to production.
A-7
40This email, sent by Ms. Ellenwood at 3:54 pm on May 10, is also included in V-2. It is relevant only because it refers to the possibility of filming for a few hours the next day.
A-8
41This is an email sent by Ms. Ellenwood to A.E. and V.S. on May 13, 2019 at 9:30 a.m. The only thing of any relevance to the defence is that Ms. Ellenwood is proposing a telephone conversation at some point that day, or any other time they might prefer.
A-9 and A-10
42This is a string of emails starting on September 23 and culminating on October 1, 2019 entitled “hello and coffee sometime.” It is simply a back and forth about when A.E. and V.S. could get together with two people from the CBC. Ultimately, it was decided to meet at 9:30 a.m. on October 18, 2019. Subsequently, (in emails exchanged on between October 16 and 18) this was changed to Monday, October 21, 2019. Apart from this information, there is nothing relevant in the communications, and some personal details that might be somewhat sensitive. Given that the defence now knows the date of the proposed meeting, there is nothing about this communication that is relevant and it should not be produced to them.
A-12
43A-12 consists of a cover email from A.E. to D.C. Ross attaching copies of text message exchanges between A.E. and Lisa Ellenwood from: the morning of May 9, 2019; the evening of May 19, 2019; June 14, 2019; and August 25, 2019. There is nothing remotely relevant to the defence in any of these messages, except for dates of possible meetings. It is apparent from the messages on May 9, that A.E. met with the CBC that morning, refused to do a telephone interview that evening; and was contemplating seeing them on May 10, 2019. These text messages do not need to be disclosed.
Date: September 24, 2020