COURT FILE NO.: 17-RD19661

DATE: 2020/10/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

E.A.

Applicant

D. Young, for the Respondent

A. Sheivari, for the Applicant

J. Meloche, for the Complainant

HEARD: October 16, 2020

RULING on WHETHER THE COMPLAINANT HAS STANDING ON a motion for directions under section 278.1 of the criminal code

rYAN bELL j.

[1] The applicant is charged with a number of offences, including sexual assault of the complainant.

[2] The applicant’s pre-trial motions include a motion for directions under s. 278.1 of the Criminal Code. On that motion, the applicant seeks a ruling that certain text messages and images in the applicant’s possession, sent by the complainant to the applicant between January and October 2016, do not constitute “records” as defined by s. 278.1 on the basis that the complainant does not have a reasonable expectation of privacy in those communications. If the communications are not “records” they are not presumptively inadmissible under s. 278.92 of the Criminal Code.

[3] The preliminary issue I must determine is whether the complainant has standing on the motion for directions.

Statutory Context

[4] In December 2018, several amendments to the Criminal Code, through the enactment of Bill C-51, came into force. The amendments consolidate the procedure for the admission of extrinsic “sexual activity” and private records. As summarized by Roberts J. in R v. Mai, 2019 ONSC 6691, at para. 2, the changes are, in broad terms, as follows:

• the definition of “sexual activity” has been broadened to include “any communication made for a sexual purpose or whose content is of a sexual nature”;

• private records include records in the possession of the defence;

• the admission of private records and evidence of sexual activity is now governed by the same two-step procedure; and

• the complainant has standing to be represented by counsel and to make submissions at the second stage of the admissibility procedure.

[5] Section 278.92(1) provides that except in accordance with the 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 a trial involving one of the enumerated offences. The enumerated offences include sexual assault. Under s. 278.92(2)(b), the evidence is inadmissible unless the record is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice in the proper administration of justice. In determining whether the evidence is admissible, the judge is required to take into account the list of factors set out in s. 278.92(3) and follow the procedures set out in ss. 278.93 and 278.94.

[6] Section 278.1 defines “record” for the purposes of ss. 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.

[7] There is no procedure set out in the Criminal Code to determine whether a document is a “record” within the meaning of s. 278.1.

[8] If the document is not a “record”, the document can be put to the complainant in cross-examination or otherwise introduced into evidence, without the necessity for prior disclosure to the Crown or to the complainant. If, on the other hand, the document is a “record”, it can only be admitted in evidence if the accused applies, in writing, for a hearing, setting out detailed particulars of the evidence the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application is provided to the Crown (s. 278.93). If the application is granted, a hearing to determine whether the evidence is admissible is held (s. 278.94). The complainant has standing at the second stage of the admissibility procedure (s. 278.94(2)) and the right to be represented by counsel (s. 278.94(3)).

Prior Jurisprudence

[9] I was referred to several decisions that deal with or mention the complainant’s standing on a motion to determine whether documents are “records” under s. 278.1.

[10] In R. v. W.M., 2019 ONSC 6535, the complainant was not represented at the hearing to determine whether the documents were “records.” Davies J. highlighted, at para. 22, the “potentially profound” consequences of requiring W.M. to bring an application and give the messages to the Crown and to the complainant before the complainant testified: “[i]t may violate his s. 7 right against self-incrimination...[and]...that [impeachment] value would largely be lost if [the complainant] is able to review the message in advance and tailor her evidence to respond to the content of the messages.”

[11] In Mai, Roberts J. was faced with the threshold question of whether certain communications in the possession of the defence, which the accused wished the option of adducing at trial, were “records” within the meaning of s. 278.1 of the Criminal Code. On the issue of the complainant’s standing on the motion, Roberts J. wrote, at para. 6:

Joanna Birenbaum was present at the hearing in her capacity as counsel for the complainant. The regime grants her no role unless and until a hearing is held under s. 278.94 to determine whether the evidence is admissible under s. 278.92(2). Ms. Birenbaum applied for intervener status in relation to this application. Given the relatively novel issue involved in this application, I granted her intervener status, initially to make submissions in relation to the appropriate procedure to follow, but I then expanded her status to permit her to make submissions on the appropriate test to apply to this threshold question.

[12] R. v. H.A.R., 2019 ONSC 7145 is to the same effect as Mai. At para. 7 of H.A.R., Bielby J. wrote:

The sections of the Code in issue remain “relatively novel” and I ruled that it would be beneficial to grant her [the complainant] intervenor status and have her participate in this proceeding.

[13] The complainant was not represented at the hearing to determine whether documents were “records” in R. v. M.S., 2019 ONCJ 670. Chapman J. expressed concern that a review of the documents “at this juncture”, could amount to a possible violation of the complainant’s privacy and/or a needless intrusion on the rights of the accused “to hold his cards close to his chest”, but took some comfort from the fact that the complainant is entitled to representation at the second stage of the admissibility process: M.S., at paras. 12-13.

[14] In R. v. A.M., 2020 ONSC 1846, Christie J. discussed the process for determining whether materials are “records” under s. 278.1. The complainant was not represented at the records determination hearing. At paras. 30 and 31, Christie J. emphasized that it is only at the second stage of the two-step admissibility procedure,

...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...

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).

[15] Christie J. concluded on this issue, at para. 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.

[16] In Her Majesty v. T.A., 2020 ONSC 1846, Gomery J. ruled that the complainant had a reasonable expectation of privacy in two of the three sets of messages at issue and that those messages were “records” under s. 278.1 and, therefore, presumptively inadmissible. For purposes of the motion for directions, Gomery J. adopted the procedure developed in W.M. and followed in Mai: defence counsel provided the court with a copy of the messages under seal and provided Crown counsel with a summary of their contents and the circumstances in which they were sent. This same summary was provided to counsel for the complainant who was granted leave to participate in the motion: T.A., at para. 11. In her ruling on the procedure to be used on a motion for directions under s. 278.1 (unreported, February 18, 2020), Gomery J. noted that neither the defence nor the Crown objected to counsel for the complainant’s participation and her view that it was appropriate that the complainant be given an opportunity to address the procedural issue.

[17] I was also referred to the decisions in R. v. R.M.R., 2019 BCSC 1093 and R. v. Navia, 2020 ABPC 20. In the former, the British Columbia Supreme Court allowed the complainant’s counsel to make submissions on whether the text messages at issue were “records”: R.M.R., at paras. 21-22. In the latter, the Alberta Provincial Court denied standing to the complainant at a preliminary application to determine whether specific documents constitute “records” pursuant to s. 278.1, writing, at paras. 47-48,

It is difficult to strike a perfect balance between the privacy interests of the complainant and the fair trial rights of the accused. The amendments, however, are only intended to apply to documents in the possession of the accused that engage the complainant’s privacy interest.

I am satisfied that the complainant does not have standing on a preliminary application to determine whether documents constitute records under s. 278.1.

[18] Finally, in R. v. G.E., (unreported, Ont. C.J., July 13, 2020), Doody J. ruled that it would be inappropriate to grant the complainant standing on the motion to determine whether documents are “records” within the meaning of ss. 278.1 and 278.92(1). Doody J. rejected the submission of the Crown and the complainant that standing to the complainant at the preliminary hearing before the first stage hearing is to be inferred from the statutory language used. Doody J., at para. 37, concluded the opposite:

In my view, the more appropriate inference is that Parliament intentionally did not provide the complainant with standing at any hearing other than the s. 278.94 second stage hearing. The statutory language does not explicitly exclude the complainant from having standing at the first stage s. 278.93 hearing, yet that is the result of the failure to require that she have standing at that stage...Similarly the failure to require that she have standing at a preliminary hearing results in the ordinary rules about voir dires in criminal proceedings applying. The only parties with standing are the Crown and the defendant.

[19] In reaching his conclusion, Doody J. relied on the statutory interpretation principle known as “expressio unius est exclusio alterius” or, in English, “implied exclusion”: G.E., at para. 38. As in Navia, Doody J. determined that allowing the complainant standing only at the second stage hearing “strikes a balance between the fair trial rights of the defendant and the privacy interests of the complainant” and [i]f the complainant had standing at the preliminary stage, that balance would be different than Parliament has determined to be appropriate”: G.E., at para. 50.

[20] The applicant makes the same submission before me.

Analysis

[21] All issues of statutory interpretation involve the fundamental question of what Parliament intended, having regard to the words of the provision, informed by its history, context, and purpose: R. v. Stipo, 2019 ONCA 3, at para. 176.

[22] As 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 (cited in A.M., at para. 23. and in R. v. Boyle, 2019 ONCJ 226, at para. 20).

[23] In R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at para. 1, Moldaver J. reinforced the need to improve the response of the justice system to sexual violence:

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 their 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.

[24] Section 278.92 of the Criminal Code creates an exception to the general rule that the defence has no reciprocal disclosure obligation in criminal matters: if the complainant has a reasonable expectation of privacy in the records in the possession of the defence, the defence is now required to bring an application in advance of trial to determine whether the messages are admissible.

[25] In dealing with the right of the complainant to be served with the application record in a s. 276 application, Doody J. wrote in R. v. Boyle, 2019 ONCJ 253, at para. 3:

In my view, when Parliament granted the right to complainants to appear and make submissions at the hearing, it did so because it recognized that the complainant’s rights and interests could be affected by the decision to be made by the judge. Allowing the complainant the right to appear and make submissions would both give a measure of procedural fairness to the complainant and assist the court by granting it access to submissions from the perspective of one of the persons directly affected by the order to be heard.

The language of the section must be interpreted in a manner consistent with that purpose.

[26] I agree with these observations. They apply equally to the admissibility of records relating to the complainant in the possession or control of the accused. The detailed procedure set out in ss. 278.93 and 278.94 governs both s. 276(2) and s. 278.92 applications. In granting a complainant the right to appear and make submissions at the second stage of the admissibility process, Parliament recognized the complainant’s privacy interests could be affected by the court’s decision. Parliament intended that a complainant would have a voice in relation to their rights and privacy interests.

[27] The determination of whether a document constitutes a “record” under s. 278.1 is important. From the accused’s perspective, if the document is determined to be a “record”, it can only be admitted in evidence if the accused then embarks on the two-stage admissibility process.

[28] From the perspective of the complainant, if the document is determined not to be a “record”, the document can be put to the complainant in cross-examination or otherwise introduced into evidence, without prior disclosure to the Crown or the complainant. In other words, the statutory scheme which is aimed at balancing the accused’s rights to full answer and defence and the complainant’s rights and privacy interests is avoided.

[29] In my view, to deny the complainant a voice on the motion for directions, when the court will determine whether there is a reasonable expectation of privacy in the communications, would be inconsistent with the very purpose of the legislation. That purpose is to respect all interests in a criminal trial, including the rights of the accused and the privacy, security, and equality interests of the complainant. It would be contrary to notions of respect and fairness to deny the complainant standing to make submissions on the “reasonable expectation of privacy” issue when it is the complainant’s expectation of privacy that the court will be determining. At the same time, granting the complainant standing at this preliminary stage would not prejudice the accused’s right to make a full answer and defence: if the communications are determined to be records, then the two-stage admission process applies and the complainant has standing only at the second stage.

[30] Respectfully, I do not agree with the implied exclusion rationale relied upon by Doody J. in G.E. and the defence submission that Parliament intentionally did not provide the complainant with standing at any hearing other than at the s. 278.94 second stage hearing. The records determination hearing or, as Doody J. referred to it, the preliminary hearing, is not provided for in the statutory scheme which expressly contemplates a two-stage process only. Mai, W.M. and T.A. are examples of courts, faced with this “gap”, arriving at a procedure to be used to determine whether a document is a “record.” Indeed, it was for this very reason, to make submissions in relation to the appropriate procedure to follow, that Roberts J. in Mai initially granted the complainant standing. The procedure adopted in Mai “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”: Mai, at para. 15.

[31] The applicant submits that because Parliament limited the complainant’s participation to stage two, the ordinary rules governing voir dires apply on the motion for directions: absent special statutory language or other unusual circumstances, the only parties with standing are the Crown and the accused: G.E., at paras. 37 and 40. In my view, this argument fails to give sufficient consideration to the purpose of the legislation, the potential impact on the complainant’s rights and interests in the event a document is determined not to be a “record” and therefore outside the statutory scheme, and the absence of any provisions in the statutory scheme governing the process by which to determine if a document is a record under s. 278.1.

[32] As Doody J. recognized in G.E., at para. 41 and in R. v. Boyle, 2019 ONCJ 11, at para. 24, the principle of implied exclusion must be used with care and much depends on the context. Allowing the complainant the right to make submissions at the records determination stage would give a measure of procedural fairness to the complainant and assist the court by giving it access to submissions from the perspective of one of the persons most directly affected by any order made by the court. I agree with the observation of Roberts J. in Mai that defence counsel will be required to make some disclosure in order to litigate the issue of whether the records are caught by the s. 278.92 regime. Granting the complainant standing at the records determination stage will not change this reality. In my view, granting the complainant standing at this preliminary stage balances and respects all interests in a criminal trial.

[33] I am unable to reconcile an approach that requires courts to develop, as necessary, the procedures to be followed on a motion for directions but, at the same time, mandates a strict adherence to the approach followed on a voir dire, resulting in no standing to the complainant. Having regard to the total absence of language addressing the procedures to be followed at the records determination stage, and having regard to the entire statutory scheme’s history, context, and purpose, I am satisfied that Parliament intended that the complainant be entitled to standing at this preliminary stage which directly impacts her privacy and dignity rights.

[34] I therefore exercise my discretion to grant the complainant standing on the motion for directions to determine if the communications are “records” under s. 278.1 of the Criminal Code.

Justice R. Ryan Bell

Released: October 30, 2020

COURT FILE NO.: 17-RD19661

DATE: 2020/10/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

E.A.

Applicant

RULING ON WHETHER THE COMPLAINANT HAS STANDING ON A MOTION FOR DIRECTIONS UNDER SECTION 278.1 OF THE CRIMINAL CODE

Ryan Bell J.

Released: October 30, 2020