COURT FILE NO.: CR-21-30000410-0000
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HANWOOL HWANG
Applicant
Sylvana Capogreco and Katrina Kahler, Counsel for the Crown Respondent
Robert Geurts and James Gilbert, Counsel for the Applicant
Kelley Bryan, Counsel for the Complainant
HEARD: June 29 and July 22, 2022
M.A. CODE J.
ENDORSEMENT
[1] The Applicant Hanwool Hwang is awaiting trial in this Court on a three count Indictment alleging sexual assault (s. 271), surreptitiously making a visual recording of sexual activity (s. 162), and administering a drug to assist in an indictable offence (s. 246). The trial is scheduled to proceed on October 11, 2022. The election was for trial by jury.
[2] I conducted a JPT in this matter last summer on July 19, 2021. I ordered that one pre-trial motion was to proceed well in advance of trial, pursuant to s. 278.92, in order to settle issues relating to certain video tapes that were in the possession of the accused Hwang and that allegedly depict the very offences charged in the Indictment. The parties brought on a further JPT before me on June 23, 2022, due to difficulties in scheduling the s. 278.92 motion. I ordered that the motion was to proceed before me on June 29, 2022. Counsel met the short filing deadlines that I set and the Motion proceeded as scheduled.
[3] The facts of the case, in brief summary, are that Hwang and the complainant J.N. knew each other and they agreed to meet at a club in downtown Toronto on the evening of July 11, 2019. Hwang had ordered “bottle service” and he mixed their drinks. It appears that J.N. had a number of drinks. At some point, she was undoubtedly rendered unconscious. Video surveillance at a hotel in Scarborough shows Hwang obtaining a room at the front desk at about 2:30 a.m. on the night in question. He then apparently waved to a taxi driver who was in front of the hotel. At this point, the taxi driver entered the hotel, carrying the unconscious J.N. over his shoulder. Hwang and the taxi driver entered the hotel elevator at 2:38 a.m., and J.N. was placed on the floor of the elevator. At 2:39 a.m., the elevator arrived at the 12^th^ floor of the hotel. Hwang and the taxi driver can be seen on the video surveillance literally dragging J.N. out of the elevator, with each man holding one of her arms. There is no dispute that J.N. was completely unconscious at this point.
[4] J.N.’s last memory of events that night was having several drinks at the club, not feeling well, and Hwang saying that he needed to get her home. She has no recollection of events at the Scarborough hotel until she awoke, fully dressed, at about 10:30 a.m. the next morning, that is, on July 12, 2019. Hwang was not in the hotel room. There were text message exchanges between them, including one in which he sent her a video clip depicting the two of them engaged in sexual intercourse. Hwang sent her this video clip after J.N. had asked, “Can u tell me what happen??”
[5] J.N. went to the hospital that same day and was examined by a nurse. A urine sample was taken and, upon analysis, it provided evidence of ketamine consumption. The effects of ketamine will be the subject of expert opinion evidence at trial.
[6] The defence is in possession of the one tape that was sent to the complainant on July 12, as well as four additional video tapes allegedly depicting events that night at the hotel. The Crown will introduce the one tape sent to J.N., in order to prove the Count Two s. 162 offence (surreptitiously making a video recording of explicit sexual activity).
[7] On the present Motion, the defence has disclosed the four additional tapes in its possession and seeks a ruling that they are admissible at trial, pursuant to s. 278.92. The Crown and the complainant’s counsel have viewed the five tapes in the possession of the defence. All counsel have made a number of responsible admissions about the contents of the five tapes, as follows:
• all counsel agree that the five tapes are “records” within the meaning of s. 278.1 and that a ruling is required pursuant to s. 278.92, before the defence can use the tapes at trial;
• all counsel agree that the tapes depict the very subject matter of the present charges and, as a result, s. 276 has no application;
• all counsel agree that the meta-data associated with the five video files indicates that they were created on July 12, 2019, between 3:15 a.m. and 3:38 a.m.;
• all counsel agree that the tapes contain both audio and video, that the complainant is conscious at all times, and that she and Hwang are engaged in various sexual acts;
• all counsel agree that the total length of the five tapes is two minutes and 12 seconds.
[8] The s. 278.92 (2) test for admissibility is that the proffered evidence must have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice,” based on a consideration of the nine factors listed in s. 278.92(3).
[9] I was satisfied, after hearing submissions on June 29, 2022, that the five short video clips have “significant probative value” for a number of reasons. First, the tapes show that J.N. was conscious between 3:15 a.m. and 3:48 a.m. This is important to the defence because J.N. was clearly not conscious about 35 minutes earlier, when she was dragged out of the elevator at 2:39 a.m. Whether the complainant’s words and conduct, as depicted in the five tapes, could indicate that she was or was not consenting to the sexual activities will depend to some extent on the experts’ assessment of the tapes and their evidence at trial about the effects of ketamine. Second, the five tapes assist in inferring how Hwang was tape recording the sexual activities, whether J.N. would likely have seen that he was recording these activities, and whether Hwang likely had the requisite mens rea for the Count Two s. 162 offence in the circumstances depicted in the tapes. Third, the tapes provide important evidence as to the timing of the sexual activities. This is likely to be an important issue at trial because J.N. was clearly unconscious when she arrived on the 12^th^ floor of the hotel at 2:39 a.m. Determining whether the sexual activity in the hotel room was close in time to 2:39 a.m., will assist in assessing J.N.’s capacity to consent and whether Hwang could reasonably have believed that she was consenting. The tapes provide significant assistance on this issue of timing. Fourth, the activities depicted on the five tapes evolve and change to some extent, between the first tape at 3:15 a.m. and the fifth tape at 3:38 a.m. In particular, the sexual activities evolve from vaginal intercourse to fellatio and N.J.’s clothing changes. She is topless during the first four tapes (with her skirt pulled up) but in the fifth tape she is wearing a brassiere. These changes in dress and in the nature and complexity of the activities may assist in assessing N.J.’s level of consciousness. Again, the experts would likely be assisted by viewing the tapes, when assessing this issue.
[10] Weighing the above four reasons together cumulatively, I was satisfied that the tapes have “significant probative value” in relation to the trial issues. On the other hand, I was also satisfied that there is a significant risk to the complainant’s privacy and dignity. The tapes disclose the most intimate and private conduct imaginable. In addition, there is a real issue as to whether J.N. was aware of the tape recording, or was sufficiently conscious due to the effects of alcohol and ketamine to consent to the tape recording, or to consent to the sexual activities depicted. The humiliation and affront to privacy and dignity, resulting from these tapes being played in a public court room in front of 12 to 14 lay jurors, at least five courtroom staff, three or four lawyers, a judge, and an unknown number of spectators in the public gallery, would be enormous. Being cross-examined on the tapes in this public setting would increase the humiliation and affront to privacy and dignity. As a result, admitting the tapes in evidence could cause substantial damage to “society’s interest in encouraging the reporting of sexual assault offences” and to “the complainant’s personal dignity and right to privacy”. These are two important factors in s. 278.92(3).
[11] Given the above very close and difficult balance between probative value and prejudice to the proper administration of justice, I asked all counsel at the initial June 29, 2022 hearing of the motion, to consider various ways to reduce and limit the prejudice. In particular, I suggested seven possible remedies or limits on the evidence that could be imposed and that could tip the balance in favour of admissibility. I asked the Crown, the defence, and complainant’s counsel to consider the following:
i) First, whether a re-election to trial by judge alone was possible. In this way, 12 to 14 additional observers of the tapes would be eliminated. In addition, the number of court staff present when the tapes are played could be reduced to two (the Registrar and the Court Reporter). Finally, the number of times that the tapes would be played in open court would be reduced because there would be no need to play them to a jury, and the judge could view them privately in chambers once they were admitted in evidence as exhibits at trial;
ii) Second, whether the parties would consent to an order closing the court room to the public whenever there was any legitimate need to play the tapes in open court;
iii) Third, whether an agreed statement of fact could be negotiated between counsel admitting the tapes in evidence, admitting the time, place, and date when the tapes were created, admitting that the tapes depict Hwang and J.N. and they overlap with the three offences charged, and attaching the tapes as exhibits. In this way, the defence would not need to prove the authenticity of the tapes, and there would be no need to play them to J.N. in order to question her about the who, what, and when that is depicted in the tapes;
iv) Fourth, whether the parties would agree to allowing the complainant J.N. to view the tapes in privacy, out of court, in order to see whether they assist in refreshing her memory. Once again, this would eliminate any need to have J.N. review the tapes in a public court room, in order to see whether they refresh her memory;
v) Fifth, whether the parties would agree to restrict any examination and cross-examination of the complainant J.N. about the tapes to two issues: first, whether she had privately viewed the tapes and whether they had assisted in refreshing her memory; and second, having now viewed the tapes, whether she thought it possible that she did consent to the sexual activity but simply has no memory of it. There would have to be some flexibility in allowing follow-up questions in these two areas. This could be left to the discretion of the trial judge;
vi) Sixth, whether the parties would consent to a sealing order preventing access to the tapes, once they were marked as exhibits; and
vii) Seventh, whether the parties would consent to an appropriate undertaking by counsel and any expert retained by the parties, to the effect that the tapes would not be copied, disseminated, or removed from counsel’s or the expert’s custody and control, and they would be returned or disposed of in some fashion after the trial. I am advised that there is already an appropriate undertaking in place in relation to the one tape that the Crown possessed and disclosed.
[12] There was broad consensus at the June 29^th^ hearing, amongst all counsel, concerning the above seven proposed remedies or limits on use of the tapes. Counsel for the Crown and for the complainant indicated that if agreement could be reached concerning these seven proposals, then such an agreement could lead to a consent order to admit the evidence pursuant to s. 278.92. Counsel requested additional time to discuss and clarify the above proposals. In particular, defence counsel needed time to discuss a re-election with his client. As a result, the s. 278.92 motion was adjourned for a month to July 22, 2022.
[13] During this adjournment period, the Supreme Court released its decision in R. v. J.J. on June 30, 2022. That decision held, by a 6-3 majority, that the legislative scheme surrounding s. 278.92 is constitutional. The reasons of the majority also provided considerable guidance in how to apply the legislation. See: R. v. J.J., 2022 SCC 28.
[14] A number of points emerging from J.J. are particularly applicable in the present case. On a purely procedural level, the Court noted that the legislation contemplates a two stage hearing. At the first stage, the complainant does not yet have standing and the judge only determines whether the evidence is “capable of being admissible” (s. 278.93). At the second stage, the complainant has standing and the judge then determines whether the evidence “is admissible” (s. 278.94). I collapsed these two separate stages into a single hearing on June 29^th^ for a number of reasons. First, there was a need for expedition because the initial date set for the motion had been missed and the trial date was now looming. Second, the calendars of three separate parties had to be accommodated, which caused a substantial risk of further delay. And third, it was fairly obvious that the first stage test would easily be met and that responsible counsel would likely concede it. In this regard, the majority reasons of Wagner C.J.C. and Moldaver J. made it clear that “the presiding judge retains significant discretion to determine the appropriate procedure in each case”. See: R. v. J.J., supra at para. 90.
[15] In terms of the substantive law arising from this new legislative scheme, the majority reasons in J.J. made three points that are particularly applicable in the present case. First of all, the majority held that the focus of the legislation is on the protection of “intimate and highly personal” information. There is no question that the images in the five tapes in the present case fall squarely within these terms, as described by Wagner C.J.C. and Moldaver J. (R. v. J.J., supra at paras. 53-4):
In our view, s. 278.1 presupposes that a certain level of privacy must be engaged; namely, this provision concerns only records that could cause “potential prejudice to the complainant’s personal dignity”. These factors suggest that the scheme is not intended to catch more mundane information, even if such information is communicated privately. Moreover, given the accused’s right to make full answer and defence, mere discomfort associated with lesser intrusions of privacy will generally be tolerated. In this context, a complainant’s privacy in open court “will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self” (Sherman Estate, at para. 74).
In light of Parliament’s intent, the relevant jurisprudence and the statutory scheme, a non-enumerated record will fall within the definition of s. 278.1 if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity. As previously stated, this interpretation is specific to the record screening regime. To determine whether a record contains such information, a presiding judge should consider both the content and context of the record. [Emphasis added].
[16] The second point of substance to note, emerging from J.J., is that “surreptitiously” creating a record makes it “more likely” that the proffered evidence will engage the protective purposes of the legislation. In this regard, Wagner C.J.C. and Moldaver J. stated the following (R. v. J.J., supra at para. 60):
Third, courts may consider where the record was shared and how it was created or obtained. Records produced in the private domain (e.g., one-on-one communications between the complainant and accused) may attract an enhanced reasonable expectation of privacy; records created or obtained in the public domain, where they could be accessed by multiple people or the general public (e.g., social media or news media), are less likely to attract a reasonable expectation of privacy. ... Similarly, the fact that a record was created or obtained surreptitiously by the accused, without the complainant’s knowledge, would also be relevant as part of the contextual analysis. Such a record would be more likely to attract a reasonable expectation of privacy. [Emphasis added].
[17] The third point of substance to note, emerging from J.J., is that records of an “explicit sexual nature”, that depict the alleged offence, fall outside s. 276 but fall within s. 278.1. In this regard, Wagner C.J.C. and Moldaver J. stated the following (R. v. J.J., supra at paras. 65-7):
One type of non-enumerated record that will often engage a reasonable expectation of privacy is a record of an explicit sexual nature that is not covered by s. 276 (for example, explicit communications, videos or photographs of a sexual nature relating to the subject matter of the charge). Complainants may have a reasonable expectation of privacy in these types of records, given the dignity concerns that can arise.
It is helpful to clarify why evidence of an explicit sexual nature that relates to the subject matter of the charge may be caught by the record screening regime even if it is not s. 276 evidence. In addition to creating the record screening regime for private records, Bill C-51 also added s. 276(4), which specifies that sexual activity “includes any communication made for a sexual purpose or whose content is of a sexual nature”. This provision applies to sexual activity other than the sexual activity that forms the subject matter of the charge (s. 276(2)). Any communication regarding such sexual activity would fall within the s. 276 regime.
Accordingly, the only records of an explicit sexual nature that could be subject to the record screening regime outside of the s. 276 context would be records pertaining to the complainant, in the possession or control of the accused, that relate to the sexual activity which forms the subject matter of the charge. For clarity, “subject matter of the charge” refers to the components of the actus reus of the specific charge that the Crown must prove at trial. These types of records are likely to engage the complainant’s reasonable expectation of privacy under the content and context framework described above. [Italics in the original, underlining added for emphasis].
[18] In light of the above guidance from J.J., I was reinforced in my original view that the five tapes have “significant probative value” but they would also cause substantial damage to the privacy and dignity interests that s. 278.92 protects. As a result, the five tapes could only become admissible if significant steps were taken by the parties to reduce and limit the prejudice. It was in this context that the hearing of the motion resumed before me on July 22, 2022.
[19] When the hearing of the motion resumed on July 22, 2022, counsel reaffirmed their broad agreement with the seven suggested ways of limiting prejudice to the complainant’s privacy and dignity. There were only two issues on which counsel requested some further assistance from the Court. First, the drafts of an agreed statement of fact that had been exchanged between counsel became the subject of some discussion and negotiation in open court. Second, the accused requested further time with counsel in order to discuss a re-election. I recessed court to allow counsel and the accused time to resolve these two issues. Upon resuming in open court, the agreed statement of fact was finalized and signed by counsel, and the accused Hwang re-elected trial by judge alone. I reviewed the other five proposed ways of reducing prejudice to J.N.’s privacy and dignity, as set out above at para. 11. Counsel confirmed their agreement with all of these proposals.
[20] In light of the above developments, I am satisfied that the five video tapes are admissible. They have “significant probative value”, for the reasons explained above (at para. 9), and counsel have substantially reduced the prejudice to the complainant’s privacy and dignity by agreeing to the seven proposed limits on the use of the evidence set out above (at para. 11). As a result, the test for admissibility of the evidence set out in s. 278.92 has been met, subject to the terms and limits set out above in para. 11.
[21] If counsel need to reappear before me in relation to any further case management issues, prior to trial, I will make myself available on short notice. I commend all counsel for the responsible way in which they have approached this difficult and sensitive motion.
M.A. Code J.
Released: July 22, 2022
COURT FILE NO.: CR-21-30000410-0000
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
HANWOOL HWANG
Applicant
ENDORSEMENT
M.A. Code J.
Released: July 22, 2022