Court File and Parties
Court File No.: CR-19-10000244-0000 Date: 2021-11-17 Ontario Superior Court of Justice
Between:
Her Majesty the Queen Respondent
– and –
J.K. Applicant
Counsel: A. Gibbons, for the Respondent G. Zoppi, for the Applicant
Heard: June 10, 2021
Reasons for Decision
Schreck J.:
[1] J.K. is charged with sexually assaulting a woman with whom he had a year-long relationship. He is in possession of various electronic messages between him and the complainant which he wishes to use at his trial and has asked this court to determine whether any of this material are "records" within the meaning of s. 278.1 of the Criminal Code.[^1] A "record" is defined in that section as something that falls into one of the categories enumerated in the section or something that contains "personal information for which there is a reasonable expectation of privacy." Any material that is a "record" will require J.K. to bring an application pursuant to s. 278.92 before it can be admitted at trial.[^2]
[2] The material at issue on this application is a series of Facebook messages between J.K. and the complainant which the complainant provided to the police and which were then disclosed by the Crown to the applicant's counsel.[^3] The applicant submits that the complainant did not have a reasonable expectation of privacy with respect to these messages while the Crown submits that she did.
[3] I have concluded that the Facebook messages are not "records." The following reasons explain why.[^4]
I. FACTS
A. The Allegations
[4] The applicant and the complainant met in 2014 and began dating. They did not have sexual intercourse on their first date but did on the second date. The complainant alleges that it was not consensual.
[5] After the alleged sexual assault, the applicant and the complainant began a long-term relationship and at some point, she moved into his apartment. The relationship ended in December 2015. In March 2018, the complainant went to the police and reported the alleged sexual assault and the applicant was charged as a result.
B. The Facebook Messages
[6] On March 29, 2019, a day after the preliminary inquiry in this matter was completed, the complainant provided the police with a copy of a series of Facebook messages between her and the applicant that were exchanged at various points in 2016 after the end of their relationship but before the complainant made her allegations to the police. These messages were included in the disclosure the Crown provided to the applicant's counsel. The applicant is also in possession of his own copies of the messages.
[7] Some of the Facebook messages relate to arrangements to change the locks on the apartment where the complainant and the applicant lived together and to close a joint bank account they had and ensure that each received their money. Many of the messages include discussions about the relationship. Some can be described as acrimonious. In others, it appears that the complainant was attempting to repair the relationship between them while the applicant was unwilling to do so.
II. ANALYSIS
A. The Statutory Scheme
[8] In December 2018, Parliament amended the Criminal Code sections relating to the admissibility of "records" relating to complainants in prosecutions for sexual offences.[^5] 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.
[9] Section 278.92 of the Criminal Code provides that no "record" in the accused's possession 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.
[10] The Facebook messages in this case do not relate to any sexual activity by the complainant and do not fall into any of the specific categories enumerated in s. 278.1, such as therapeutic records or personal journals. However, 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." Thus, whether the messages fall into that broader category is the issue that must be determined.
B. Does Section 278.1 Apply to Crown Disclosure?
[11] Before considering whether there is a reasonable expectation of privacy in the Facebook messages, I must first consider whether the s. 278.1 regime applies to items disclosed to the defence by the Crown.
[12] In R. v. McFarlane, 2020 ONSC 5194, my colleague, Stribopoulos J., concluded that the s. 278.1 regime does not apply to Crown disclosure. Stribopoulos J. noted that s. 278.1 applies to both s. 278.2 and s. 278.92, which involve different situations in which a complainant's privacy interests are protected. Section 278.2 applies to records that are not in the accused's possession. To obtain an order for production of such records, an accused must satisfy the requirements set out in ss. 278.3 to 278.7, as explained in R. v. Mills, [1999] 3 S.C.R. 668. Where the records are in the possession of the prosecutor, s. 278.2(3) imposes a duty on him or her to notify the accused of this without disclosing the contents of the record: McFarlane, at paras. 18-20.
[13] Section 278.92 applies to records that are in the possession or control of the accused, which Stribopoulos J. concluded does not include records that were disclosed by the Crown or ordered produced on a Mills application (at paras. 22-27):
... [In s. 278.92] 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."
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] 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.
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.
[14] The Crown submits that McFarlane was wrongly decided and relies on R. v. McKnight, 2019 ABQB 755, at paras. 41-42:
Absent a Complainant's waiver, the Crown's decision to produce those documents to the Accused despite s. 278.2 does not bind me to the conclusion that a Complainant has no reasonable expectation of privacy in those documents. As recently stated by the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, at para 68 [Barton], it is the trial judge, not the Crown, who is the gatekeeper in a criminal trial. I am ultimately responsible for protecting the Complainant's dignity, equality and privacy rights.
It does not follow from the fact that the Crown has possession of the electronic communications that any reasonable expectation of privacy disappears: Mills at para 108. I therefore find that a Complainant can reasonably expect the Crown to keep voluntarily-disclosed electronic communications private unless and until she expressly waives her privacy interest in accordance with s 278.2.
[15] I agree that it is ultimately the court's responsibility to ensure that the complainant receives the statutory protections she is entitled to. However, it does not follow from this that communications provided in disclosure automatically require an application pursuant to s. 278.92. As noted in both McFarlane and McKnight, s. 278.2(3) imposes a duty on the Crown to keep a "record" confidential unless the complainant waives the protection afforded by the section. In my view, the Court and the defence are entitled to presume that absent some indication to the contrary, the Crown fulfilled its duty and the fact that the material was disclosed is evidence of the complainant's waiver.
[16] In this case, the Crown has not suggested that the Facebook messages were disclosed in error or ought to be returned. The Crown appears to accept that there was some sort of waiver by the complainant, but submits that absent some indication that she had received advice from counsel, her waiver was not fully informed. There are two reasons why I cannot accept this submission.
[17] First, I do not accept that there can be degrees of waiver in the context of s. 278.2, which the Crown's argument implicitly suggests. The Crown is in effect arguing that the complainant waived her reasonable expectation of privacy to a degree sufficient to justify the Crown's disclosure of the material, but not sufficient to preclude the application of s. 278.1. However, s. 278.2 allows the Crown to disclose the material only if the complainant has "expressly waived the application of those sections", that is, ss. 278.1 to s. 278.91. It follows from this if the Crown was justified in disclosing the material, the protections of s. 278.1 must have been expressly waived.
[18] Second, advice from counsel is not necessarily required for a waiver to be fully informed. It is well established that a valid waiver of a constitutional right does not require consultation with counsel: R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.), at paras. 50, 59. I do not see why a valid waiver of a statutory right would require a higher standard.
[19] For these reasons, I agree with Stribopoulos J. in McFarlane that material that has been provided in disclosure does not ordinarily require an application pursuant to s. 278.82. The situation may be different where there is evidence that the Crown disclosed the material in error or the complainant has asserted that the disclosure was made contrary to her wishes, neither of which has occurred in this case.
C. Is There a Reasonable Expectation of Privacy in the Messages?
(i) Overview
[20] My conclusion with respect to the applicability of s. 278.92 to material that has been disclosed by the Crown is sufficient to dispose of this application. However, in the event that my conclusion is wrong, I will consider whether there is a reasonable expectation of privacy in the Facebook messages.
[21] Whether a reasonable expectation or privacy exists will depend on a "contextual assessment that takes into account the totality of the circumstances": R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, 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.
[22] 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.
[23] In this case, some of the contents of the Facebook messages relate to mundane matters. However, some include expressions of the complainant's thoughts and feelings, and such expressions 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. Whether an expression of thoughts and feelings gives rise to a reasonable expectation of privacy will depend on the context.
(ii) Communications Voluntarily Made by the Complainant to the Accused
[24] The communications in this case were voluntarily made by the complainant to the applicant. Unlike records in the hands of third parties, the issue here is not whether the accused will or should become privy to the communications. He is already privy to the communications because the complainant sent them to him. Rather, the issue is whether the communications can be used at trial: R. v. A.M., 2020 ONSC 1846, at para. 116.[^6] In my view, two things follow from this.
[25] First, 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. In this regard, I agree with Roberts J.'s analysis in Mai, at para. 23:
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.
[26] Second, the relevant timeframe to consider when determining whether a reasonable expectation of privacy exists is the time of the application rather than time at which the communications were made: W.M., at para. 50; Mai, at para. 25; R. v. X.C., 2020 ONSC 410, at para. 67; R. v. M.A., 2021 ONCJ 434, at para. 8; R. v. Marrello (2020), 468 C.R.R. (2d) 178 (Ont. C.J.), at para. 170. In the context of communications voluntarily made by the complainant to the accused, the purpose of s. 278.92 is to protect the complainant's privacy interests during the trial process because that is when those privacy interests are at risk. It makes little sense to evaluate whether the complainant had a reasonable expectation of privacy in the past to determine whether her current privacy interests need to be protected now.
[27] I recognize that there are authorities that take a different view: T.A., at paras. 26-31; R. v. Green, 2021 ONSC 2826, at para. 29; R. v. Debus, 2020 ONSC 7746, at para. 38. It was suggested in T.A., at para. 28, that considering the current nature of the relationship between the complainant and an accused "lowers a woman's privacy rights because of a theory that she should have anticipated that she might be sexually assaulted and have to testify in a criminal prosecution against someone she once chose to confide in." Leaving aside the obvious inconsistency between this line of reasoning and the presumption of innocence, it ignores the reality of situations where an accused has possession of communications between him and the complainant. Subject to the ordinary rules of evidence, the accused is entitled to make such use of the information in the communications as he sees fit to advance his defence. As Dawe J. noted in X.C., at para. 58,
[I]t is ... significant that s. 278.92 is narrower on its face than s. 276 in the sense that it only limits the defence's ability to put the record itself into evidence, but does not place any restrictions on the defence's ability to use or "adduce" the information in the record. [Emphasis in original].
[28] It is an unfortunate reality that criminal trials often result in private information being revealed in a public forum. The fact that the information is going to be revealed in any event must necessarily inform the question of whether any expectation of privacy with respect to material containing the information is reasonable. The fact that a complainant knows that she can be cross-examined on what she said in an electronic message is relevant to the reasonableness of any expectation of privacy she may have in relation to the message itself: A.M., at para. 116.
(iii) The Relationship at the Time the Communications Were Made
[29] There is another reason why there is no reasonable expectation of privacy in the messages in this case. At the time the messages were exchanged, the complainant and the applicant were former intimate partners. Their interactions were marked by tension, if not acrimony. It is evident in the conversations that the applicant was quite concerned about protecting himself from liability, although it appears that he was referring to financial rather than criminal liability. In these circumstances, there is nothing to indicate that the complainant would not have expected the applicant to keep the communications private.
III. DISPOSITION
[30] For the foregoing reasons, I have concluded that the complainant does not have a reasonable expectation of in relation to the Facebook messages. As a result, 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: November 17, 2021
[^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]: Section 278.92 of the Criminal Code was found by this court to be inconsistent with ss. 7 and 11(d) of the Charter in R. v. Reddick, 2020 ONSC 7156, 475 C.R.R. (2d) 290, although some other judges of this court have declined to follow it: R. v. Green, 2021 ONSC 2826; R. v. S.R., [2021] O.J. No. 1623 (S.C.J.); R. v. B.G., 2021 ONSC 2299; R. v. A.M., 2020 ONSC 8061, 476 C.R.R. (2d) 42. Appeals from Reddick (sub nom. R. v. A.S.), and R. v. J.J., 2020 BCSC 29, another decision which found s. 278.92 to be unconstitutional, were heard by the Supreme Court of Canada on October 6, 2021 and judgment is reserved as of the date of this decision. The constitutionality of s. 278.92 was not raised before me and I have accordingly proceeded on the basis that the section is constitutionally valid.
[^3]: The application also related to certain photographs in the applicant's possession. Counsel agree that some of the photographs will require an application pursuant to s. 276 of the Criminal Code. With respect to these, the Crown concedes that the threshold in s. 278.93(4) of the Criminal Code has been met and that there ought to be a hearing pursuant to s. 278.94. The parties agreed that the rest of the photographs as well some e-mail messages are not "records."
[^4]: Whether motions for directions such as this are consistent with the legislative scheme was an issue before the Supreme Court of Canada in A.S. and J.J., where some parties and interveners took the position that the complainant ought to be entitled to participate in any determination of whether material is a "record" for the purposes of s. 278.1. In this case, the parties agreed to proceeding in the absence of the complainant.
[^5]: 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.
[^6]: It is my understanding that the issue of whether private communications can be "records" for the purposes of s. 278.1 was an issue before the Supreme Court of Canada in A.S. (the appeal from Reddick) and J.J.