COURT FILE NO.: CR-20-180-00
DATE: 2021 04 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ysolt Brar, for the Crown
Respondent
- and -
KIRK MATTHEW FAIRLEY
Vincent Houvardas, for the Applicant
Applicant
HEARD: March 15, 2021
RULING ON APPLICATION FOR DIRECTIONS
André J.
[1] The Applicant, Kirk Matthew Fairley, brings an Application for directions concerning whether he is required to bring an Application pursuant to s. 278.93 of the Criminal Code to adduce a number of text messages and love letters from the complainant, during his upcoming trial. The Crown concedes that he is not required to bring such an application with respect to some of the messages but must do so with respect to the others.
CHARGES
[2] Members of the Peel Regional Police Services charged Mr. Fairley in December 2018 with the offences of uttering threats, assault, sexual assault, forcible confinement and breach of probation following receipt of a statement from his current girlfriend.
[3] There are five different categories of information that are the subject of Mr. Fairley’s application. These are:
a) Instagram messages exchanged between the parties regarding an evening they had shared and plans to meet again, accessed by the Applicant on December 17, 2018;
b) Instagram messages sent by the complainant to Mr. Fairley in March 2019, in which the complainant threatens and propositions him;
c) Email correspondence from April 2019 sent by the complainant to Officer McNaughton about the allegations;
d) Letter from the officer which summarizes a possible recantation by the complainant dated April 23, 2019;
e) Letters sent by the complainant between September 2019 and March 2020 to the Applicant;
f) Instagram messages and posts sent by the complainant to the Applicant between February and March 2019.
THE LAW
[4] Section 276(1), (2) and (4) of the Criminal Code sets out:
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.
[5] Section 278.1 of the Criminal Code sets out the definition of a record for the purpose of this legislative regime:
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. [emphasis in original]
[6] Section 278.93(1) and (4) states that:
278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).
[7] In R. v. McKnight, 2019 ABQB 755, at para. 11, the court noted that the definition of a “record” under s. 278.1 is not limited to trust-like, confidential or therapeutic relationships – while such relationships may give rise to heightened privacy interests, their absence is not dispositive.
[8] In R. v. W.M., 2019 ONSC 6535, the court listed at para. 30, the following factors to determine whether or not a reasonable expectation of privacy exists in text messages:
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 the complainant does have a reasonable expectation of privacy.
[9] Determining whether a complainant had a reasonable expectation of privacy in communication involves a contextual analysis. In R. v. A.M., 2020 ONSC 1846, at para. 102, the court listed the following factors in considering whether information amounts to a “record” under 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; and,
c. Whether the material includes any information that could constitute other “sexual activity” for the purposes of s. 276 of the Criminal Code.
[10] A court should look at the “totality of the circumstances” including the content of the record and its context, to determine whether there is a reasonable expectation of privacy (REP). A “risk analysis” (the risk that the receiver of the message will reveal it to others), also forms an important part of assessing REP in the totality of circumstances: R. v. Mai, 2019 ONSC 6691, at paras. 23-26.
ANALYSIS
[11] The statutory regime set out in ss. 276 and 278 of the Code is designed to ensure that in the assessment of the credibility of alleged victims of sexual assaults, evidence of sexual activity other than the subject matter of the alleged offences is not used to support an inference that they likely consented to the sexual activity that forms the subject matter of the offence. The evidence may be relevant to an issue in the trial, such as, for example, the credibility of the complainant or if the complainant places the nature of the relationship in issue; however, it cannot be used to suggest a conclusion that she likely consented to the sexual activity in question. With these initial comments, I will address each category of information that Mr. Fairley seeks to adduce without a hearing under s. 278.93 of the Code.
A. Instagram Messages Accessed on December 17, 2018
[12] These messages make reference to sexual activity between the complainant and another male. The complainant also propositions the Applicant and makes direct references to sexual activity with him. It is therefore undisputed that the messages are sexual in nature in which the complainant would have an expectation of privacy. Accordingly, a hearing is required under s. 278.93 to determine whether Mr. Fairley can adduce them at trial.
B. Messages Sent in March 2019
[13] Some of these messages are sexual in nature. They also contain nude photos of the complainant. These photographs and messages are sexual in nature in which the complainant would have a reasonable expectation of privacy. To that extent, an application would be required under s. 278.93 to determine whether they can be adduced at trial.
[14] The other messages, however, contain threatening language from the complainant directed at Mr. Fairley. They were sent after the complainant contacted the police on December 14, 2018. To that extent, she would have had a reduced expectation of privacy in them: R. v. X.C., 2020 ONSC 410; R. v. A.M., 2019 ONSC 6535, at para. 50. In my view, Mr. Fairley is not required to bring an application under s. 278.93 to adduce this evidence at his trial. These messages would be relevant to an assessment of the complainant’s credibility.
C. Email Exchange Between Officer McNaughton and the Complainant and the Officer’s Letter to the Crown
[15] The complainant’s email to the officer contains information which appears to be a recantation of her December 2018 statement to the police about being threatened, forcibly confined and sexually assaulted. They relate to the subject matter of the charges and are highly relevant to an important issue in the trial, namely, the complainant’s credibility. In my view, their probative value significantly outweighs any prejudicial effect which their admission may have. For these reasons, no s. 278.93 application is required for this evidence to be adduced at trial.
D. Love Letters
[16] In these letters, the complainant professes her love for Mr. Fairley. They are inherently private and are therefore correspondence in which the complainant would have a reasonable expectation of privacy. In these messages, the complainant expresses her feelings for the Applicant. In a few cases, courts have held that a complainant had a reasonable expectation of privacy in communications, where, among other things, she expressed her feelings for the Applicant: see R. v. T.A., 2020 2613, at para. 40; R. v. M.S., 2019 ONCJ 670, at para. 72 and R. v. R.M.R., 2019 BCSC 1093, at para. 38. In my view, these letters are capable of being admissible when viewed in conjunction with the threatening messages allegedly sent by the complainant to Mr. Fairley because from his perspective, the allegations amount to nothing more than the poisoned fruit of unrequited love.
[17] For the above reasons, the Applicant is required to bring an Application under s. 278.93 before these letters can be adduced into evidence.
E. Additional Instagram Messages and Posts Sent by the Complainant Between February and March 2019
[18] These messages reveal the complainant’s persistent sexual interest in Mr. Fairley. They also contain nude photos of her as well as sexual comments directed at him.
[19] Do these messages constitute a record as defined in s. 278.1 of the Code such that they require a hearing under s. 279.93? In my view, they do. The photos and sexual comments are sexual in nature. However, some of the messages are relevant to the issue of motive and the complainant’s lack of fear of Mr. Fairley. In my view, these messages are capable of being admissible in Mr. Fairley’s trial. The nude photos and sexual messages that the Crown has redacted would serve little purpose in the trial except to foster an impression in the minds of the jurors that the complainant is sexually promiscuous and would likely have consented to the sexual activity between Mr. Fairley and herself. This is precisely the type of reasoning that s. 276(2) of the Code prohibits. The prejudicial effect of admission of these images and messages significantly outweighs whatever probative value which they may have.
[20] For the above reasons, the messages and photos redacted by the Crown are not admissible in Mr. Fairley’s trial.
CONCLUSION
[21] The following messages do not constitute a “record” as defined under s. 278.1 of the Code and accordingly, do not require a hearing before they can be adduced at trial:
a) Instagram messages sent by the complainant in February and March 2019 in which she threatens and propositions Mr. Fairley;
b) The complainant’s email to Officer McNaughton about her allegations against Mr. Fairley and the officer’s letter to the Crown attorney summarizing a possible recantation by the complainant.
[22] The following messages or correspondence constitute a record under s. 278.1 of the Code and require a hearing under s. 278.93 to determine their admissibility:
a) Instagram messages sent by the complainant which Mr. Fairley accessed on December 17, 2018,
b) Love letters sent to Mr. Fairley by the complainant between September 2019 and March 2020; and
c) Instagram messages and photos of a sexual nature sent by the complainant to Mr. Fairley between February and March 2019.
[23] The matter is adjourned to June 10, 2021, at 10:00 a.m. for a s. 278.93 hearing via Zoom. Half a day is required for the hearing. Mr. Fairley is remanded out of custody accordingly.
André J.
Released: April 20, 2021
COURT FILE NO.: CR-20-180-00
DATE: 2021 04 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KIRK MATTHEW FAIRLEY
RULING ON APPLICATION FOR DIRECTIONS
André J.
Released: April 20, 2021