Reasons for judgement

A. OVERVIEW

[1] The Applicant Bartosz Niemiec is charged with one count of sexual assault on J.A. The offence allegedly took place on July 8, 2018. The trial is scheduled to proceed in this Court on October 24, 2022. The accused Niemiec brought two pre-trial Applications, pursuant to ss. 276 and 278.92 of the Criminal Code, seeking to admit evidence at his upcoming trial of text messages and a videotape relating to the alleged sexual assault. I heard the two Applications together on September 22, 2022 and reserved judgement. These are my Reasons for Judgement.

B. FACTS

[2] The facts of the case are relatively straightforward because there is only one issue that will be in dispute at trial, namely, the element of consent. Identity is not in dispute and the fact of sexual intercourse between Niemiec and J.A. at a hotel in Toronto on July 8, 2018, is also not in dispute. In addition, the broad circumstances that led to the events at the hotel on July 8, 2018 are not in dispute. The accused Niemiec and the complainant J.A. undoubtedly met on a dating app called “Seeking.com”. She gave Niemiec her phone number and they proceeded to exchange text messages and to negotiate an agreement to meet and have sex. The exact terms of the agreement are the subject of some dispute.

[3] J.A.’s account in her statement to the police, in brief summary, is that Niemiec did not comply with their agreement. They had agreed that she would be paid $700. Instead, he showed her $250 when they entered the hotel room and he said that he would send the balance by e-transfer, after they had sex. She insisted on full payment in advance or else she would leave. At this point, he pushed her towards the bed and started to undress. A further dispute arose when she told Niemiec that she was not on birth control and she asked him to wear a condom. He refused and told her to undress and to perform felatio. He grabbed her by the back of her neck and forced her mouth onto his penis. The forced felatio was then followed by sexual intercourse. She was initially lying on her back on the bed during vaginal intercourse, until he flipped her over onto her front. The vaginal intercourse continued in this position with Niemiec also hitting her on the buttocks. This hitting or slapping hurt and she told him to stop. She looked behind and saw that he was using his phone to record these events. She told him to stop the video recording and buried her face in a pillow, in order to prevent any video recording of her face. The sexual intercourse concluded with J.A. again lying on her back. She screamed when he ejaculated inside her.

[4] According to J.A.’s account, none of these sexual activities were with her consent. She had told Niemiec that she was going to leave, after the initial dispute over payment arose. He was not listening to her and continued not to listen, even when she told him that she was not on birth control and asked him to wear a condom. She was 19 years old at the time. She explained that he had physically forced her to perform felatio, with his hand on the back of her neck, and “I was kind of choking” and so “I kind of give up and then just did it myself … he let me go when I was doing it myself.”

[5] After the sexual intercourse ended, according to J.A.’s account, there was an argument with Niemiec about whether she had herpes. She screamed at him, she got dressed, she grabbed the $250, she asked for the e-transfer of money, and she was trying to leave. He tried to stop her from leaving but she pushed him and ran out the door. J.A. talked to her friends about what had happened but she did not report the matter to the police until two years later. At this point, Niemiec had once again contacted her. There was an exchange of texts in which they discussed the money that he owed her. He asked to see her again. She told him not to contact her and they called each other insulting names. At this point, in July 2020, she went to the police because she believed that he had a video of her and he was threatening to post it online. J.A. no longer had her cell phone from 2018, with the text messages that she had exchanged with Niemiec prior to their July 2018 meeting. She provided her best recollection of these text messages in her statement to the police. She also produced screenshots to the police of the more recent July 2020 text messages. They were filed as exhibits on the Application.

[6] On the present Application, the accused Niemiec produced his text messages with J.A. They both preceded the July 2018 incident and immediately followed the incident. He also produced the videotape, which depicts part of the incident, to the Crown and to counsel for J.A. The text messages were marked as exhibits on the Application. The three copies of the videotape remain in the custody of the three counsel who appeared on the Application. I asked counsel to try to agree on a summary of what is depicted on the videotape, so that I would not need to view it and so that it would not become part of the court record until I had ruled on its admissibility. Ms. Donohue helpfully produced a fair and accurate summary of the videotape, which Mr. Sederoff adopted (see the Exhibit 13 Agreed Statement of Fact). The summary was then made Exhibit 10 on the Application. The accused Niemiec also swore an Affidavit stating that the text messages and videotape that he had produced to the parties, had not been edited, deleted, or altered and that there were no other text messages or videotapes related to this matter (Exhibit 14). The Crown did not seek to cross-examine Niemiec on his Affidavit.

[7] Niemiec’s Affidavit does not set out his account of the relevant events that occurred in the hotel on July 8, 2018. As a result, there is no sworn testimony about these events from Niemiec on this Application. However, Mr. Sederoff advised during submissions that his client will testify at trial and will describe an entirely consensual encounter. In particular, he will testify that the agreement was to pay J.A. $500, that he paid her a cash deposit before they had sex, and that he paid her the cash balance after they had finished. He will also testify that the agreement was that he would not need to wear a condom. As a result, there were no disputes and no use of force while they had sex. He asked for and obtained her permission, before video recording part of their sexual activity. The only argument between himself and J.A. occurred afterwards, when he asked about a sore on her lip and whether it was herpes. She showered first and left the hotel room while he was still in the shower, because he had offended her by inquiring about sexually transmitted diseases. However, he texted her afterwards about the matter and they ended up joking about it in an exchange of texts.

[8] I will describe the texts and the videotape in greater detail in the next section of these Reasons, when discussing their admissibility.

[9] One final factual point to note is that Niemiec provided a videotaped statement to the police when he surrendered on July 5, 2020. He had been informed of his right to counsel and he had spoken to duty counsel. He was also cautioned about the right to remain silent. He was then asked by the officer whether he had any video recording of the incident with J.A. He repeatedly stated, “No, I don’t have the video … This happened in 2018. I don’t have the video.”

[10] If the video recording now produced on this Application is ruled admissible in evidence at trial, the Crown seeks a ruling as to the admissibility of Niemiec’s statement to the police, for purposes of cross-examination, in the event that Niemiec testifies at trial. Mr. Sederoff agrees that the statement is voluntary and that there were no Charter violations. He waived the need for a voir dire. As a result, I ruled that Niemiec’s statement to the police would be admissible, if I also rule that the video produced on this Application is admissible at trial.

C. ANALYSIS

(i) Introduction

[11] I held a case management teleconference with counsel for the three parties on September 20, 2022, two days prior to the hearing of the ss. 276 and 278.92 Application. I asked the parties to consider collapsing the entire hearing into one day, instead of conducting a two-stage hearing, given that I was likely to order stage one production of the text messages and video recording to the Court, and given the looming October 24, 2022 trial date. I also asked the parties to file the text messages but to prepare a summary of the video recording, as previously noted, so that the video would not need to be marked as an exhibit on the Application. Finally, I asked the parties to review my earlier Endorsement in another case that raised somewhat related issues, R. v. Hwang, 2022 ONSC 4323. In particular, I asked the parties to consider the seven suggestions set out at para. 11 of that Endorsement, as possible ways to reduce the prejudice to J.A.’s privacy and dignity, if the video recording was to be ruled admissible. Hwang was decided shortly after the Supreme Court’s important decision in R. v. J.J., 2022 SCC 28 concerning s. 278.92.

[12] When the hearing of the Application proceeded on September 22, 2022, it was completed in one day where I heard argument relating to both s. 276 and to stage one and two of s. 278.92. See: R. v. Hwang, supra at para. 14, concerning the need for procedural flexibility and expedition at these increasingly frequent pre-trial hearings.

(ii) The s. 276 Application

[13] The s. 276 Application initially included a request to explore J.A.’s “history of providing sexual services for money” and her prior “use of the website ‘Seeking.com’” in order to “solicit sexual services for gain”. At the hearing, Mr. Sederoff wisely abandoned this part of his Application. In my view, it clearly offended s. 276 and the well-known principles set out in R. v. Barton (2019) 2019 SCC 33, 376 C.C.C. (3d) 1 (S.C.C.). In this regard, Mr. Sederoff also agreed that two passages in the text messages would have to be edited, if the texts were admitted in evidence. In one text message, when negotiating the amount of her fee for sexual services, J.A. stated “most guys pay me at least 600.” In another exchange of texts, Niemiec asked “how many dates have you been on from sa”. J.A. replied, “im only with one guy, he pays me nearly a grand each time.” I agree that these two passages in the text messages offend s. 276 and will have to be edited, if the rest of the texts are ruled admissible. J.A.’s prior history of providing sexual services to other clients is entirely irrelevant.

(iii) The admissibility of the text messages

[14] Once the above s. 276 issue was resolved, the remaining aspects of the Application were focused mainly on s. 278.92. The video recording and the text messages immediately leading up to the July 8, 2018 incident at the hotel all relate to “the sexual activity that forms the subject matter of the charge.” Accordingly, s. 276 has no application to this evidence. However, the text messages when Niemiec and J.A. first met on the dating website, and proceeded to negotiate the terms of their agreement, are dated March 22, 23, and 24 and April 5 and 6, 2018. They had agreed to meet in these early texts but Niemiec had to cancel and their next contact was on July 7, 2018, after a three month hiatus. These earlier texts could well be treated as part of “the sexual activity that forms the subject matter of the charge” because they eventually did lead to the agreed meeting on July 8, 2018, and there was no other meeting. However, out of an abundance of caution, the parties agreed that the admissibility of the earlier texts should be considered under both s. 276 and s. 278.92. The content of these earlier texts is clearly “of a sexual nature” and so they fall within the s. 276(4) definition of “sexual activity”. The parties agree that the test for admissibility under s. 276(2) and the factors to be considered under s. 276(3) are exactly the same as the test for admissibility under s. 278.92(2) and the factors to be considered under s. 278.92(3). Accordingly, deciding one route to admissibility effectively decides the other route.

[15] Beginning with the text messages that precede the July 8, 2018 incident, I am satisfied that they have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.” They show that a fee of $500 was agreed to on March 23, 2018, after some negotiation, and that this agreed fee was then expressly reiterated on July 7, 2018. They also show that Niemiec asked “would it be ok if we have sex without a condom” and that J.A. replied “sure”, on July 7, 2018, without any mention that she was not on birth control. These two issues are central to the two alleged disputes which, J.A. asserts, became the basis for her not consenting to sex with Niemiec on July 8, 2018. The text messages tend to support Niemiec and contradict J.A. on these two issues. In addition, J.A. no longer had the text messages in her possession when she provided her statement to the police in July 2020. She described the text messages in her statement, as important background context concerning the terms of agreement for her July 8, 2018 meeting with Niemiec. Her previously unaided recollection of the text messages will be significantly more reliable if she has them at trial in order to refresh her memory. For all these reasons, the text messages preceding the alleged incident have “significant probative value”.

[16] In terms of any “prejudice to the proper administration of justice”, Ms. Donohue and Ms. Fathalipour made three main submissions: first, the early texts are remote in time from the alleged sexual assault; second, J.A. admits the transactional nature of her agreement to have “sex for money” with Niemiec and so there is little need for the texts; and third, the texts give rise to a risk that the trier will mistakenly commit legal errors by implying consent from an apparent advance consent. For all these reasons, counsel for both the Crown and for J.A. opposed admissibility of the texts preceding the incident. The Crown conceded that the texts after the incident had concluded are admissible, as will be discussed below.

[17] None of the above arguments opposing admissibility are persuasive. Their main weakness is that it is the Crown that will open up the issue of the text messages and the discussion between J.A. and Niemiec of a transactional agreement to have “sex for money”. This issue will inevitably be raised during the examination-in-chief of J.A. There was no prior meeting between J.A. and Niemiec, before July 8, 2018. All of their communications were by way of text messages. It was in these text messages that they reached agreement on the terms and conditions for having sex at the July 8, 2018 meeting. The central issue in the case is whether Niemiec violated these terms of that agreement, resulting in non-consensual sex. The Crown cannot open up this issue in-chief and then expect that the defence will not explore it in cross-examination. The longstanding s. 276 case law in this province has always allowed the defence to use evidence of sufficiently probative prior sexual activity in order to rebut an issue raised by the Crown. See, e.g. R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.); R. v. Butts (2012), 2012 ONCA 24, 285 C.C.C. (3d) 569 (Ont. C.A.); R. v. Zachariou, 2013 ONSC 6694, aff’d 2015 ONCA 527. There is minimal additional prejudice in allowing the defence to explore the terms of agreement reached in the text messages, during cross-examination, when that issue has already been raised during examination-in-chief.

[18] In terms of the three specific arguments made by the Crown and counsel for J.A., summarized above, the alleged remoteness of the March and April 2018 texts does not diminish their probative value or increase their prejudicial effect. It is in the early texts that an agreement was reached and it is in the subsequent July 2018 texts that the agreement was reaffirmed and then carried out. The texts are continuous and consistent and it is the totality of the texts that is relevant to the degree of clarity in the agreement. In addition, the early texts are no more or less prejudicial to privacy interests than the later texts, especially once they have been edited to remove those parts that offend s. 276 (as explained above at para. 12). The second argument is that J.A. has admitted the transactional “sex for money” agreement and so the texts are redundant or unnecessary. This argument is factually misconceived. The text messages add significant new facts that contradict J.A.’s account, concerning both the fee that she agreed to and whether she also agreed that Niemiec did not have to wear a condom. These facts are set out in the text messages and they are important to the defence and far from redundant. Finally, the concern that the trier will fall into legal error, by implying consent from an advance agreement to consent that is set out in the texts, could arguably have been met by a warning in the charge to the jury, if this was a jury trial. However, as will be set out below, Niemiec re-elected trial by judge alone during the hearing of the present Application. Judges are presumed to know the law. See, e.g. R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 203 (Ont. C.A.). As a result, there is no concern that a judge will somehow misapprehend the law relating to implied consent and advance consent and will then misuse the prior text messages. In R. v. Barton, supra at paras. 98-99, the law on these topics is succinctly set out and it will assist the trial judge.

[19] In conclusion, the text messages preceding the incident in the present case are admissible for reasons that are analogous to R. v. Harris, supra at paras. 42 and 50, where Moldaver J.A., as he then was, Doherty and Weiler JJ.A. concurring, stated:

By testifying as she did, the complainant placed the nature of her relationship with the appellant in issue. Accordingly, in order to be able to make full answer and defence, the appellant was entitled to lead evidence designed to rebut the complainant's testimony.

Accordingly, I am satisfied that once the complainant testified in-chief, the proposed evidence became relevant and highly probative of the issue of credibility. The probative value of the evidence did not depend upon resort to the now debunked myths suggesting some connection between prior sexual activity and a lack of veracity but in its ability to contradict specific evidence given by the complainant that was central to her version of the relevant events. A sharp warning from the trial judge that the evidence of the Tuesday night incident could only be used to assess the complainant's credibility in relation to the specific events forming the subject matter of the charge and not to draw the general inferences that she was more likely to have consented or that she was less worthy of belief would have overcome any possible prejudice resulting from its admission. [Emphasis added].

[20] I should add that Ms. Donohue relied heavily on my colleague Maxwell J.’s decision in R. v. Balondo, 2021 ONSC 4542, in which she excluded text messages between the accused and the complainant that preceded the incident. That case is very different factually from the present case. Maxwell J. described the texts as ongoing equivocal discussions about having sex at some future point, between two “teenage sweethearts”. However, no agreement or expectation to actually have sex on the occasion in question ever emerged. As Maxwell J. put it (supra at para. 58):

In my view, the applicant’s starting premise is flawed, in that his assertion that the text messages reveal a definite plan to have sex is not borne out in the messages. It is not a circumstance such as what Justice Moldaver contemplated in Barton at para. [93], where prior negotiations between the complainant and the accused reveal a legitimate expectation for what ultimately happened. [Emphasis of Maxwell J. in the original].

[21] In the present case, the text messages preceding the incident unquestionably reveal an agreement to have sex at the appointed time and place, on certain terms. In addition, that agreement will inevitably be brought out in-chief by the Crown. In other words, the present case is very different from Balondo on its facts.

[22] The text messages exchanged between J.A. and Niemiec shortly after the incident on July 8, 2018 are not contentious. The Crown conceded their admissibility. They include a short discussion about the incident, including whether Niemiec ever ejaculated. They also discuss the herpes issue that arose and appear to joke or laugh about it. They relate directly to the sexual assault allegation and their probative value significantly outweighs any prejudice to privacy interests.

(iv) The admissibility of the video recording

[23] The admissibility of the video recording of the sexual activity between J.A. and Niemiec is by far the more difficult issue on this Application. What makes this issue particularly difficult is that the video recording is only 31 seconds in length. As a result, it is a very limited or partial record that depicts only one part of a longer incident. In addition, it depicts sexual intercourse between the parties and is, therefore, the most intimate and private kind of information that is engaged by s. 278.92.

[24] Mr. Sederoff carefully set out the relevance of the tape recording to Niemiec’s anticipated defence at trial, relying heavily on the Exhibit 10 summary of the tape prepared by Ms. Donohue. Mr. Sederoff submitted that there were a number of areas where the video was helpful to the defence, in particular the following:

• the timing as to when Niemiec produced the cell phone camera, that is, at a time when J.A. was in a forward position, resting on her elbows on the bed with Niemiec behind her, and at a point when Niemiec’s penis was in his hand and he was about to insert it in J.A.’s vagina;

• the fact that she did not look back, object to the cell phone camera, or bury her face in a pillow during the ensuing 31 second period;

• the fact that J.A. appeared to be moving with Niemiec while they had vaginal intercourse in this position (the Exhibit 10 summary states that J.A. “appears to be moving with the male”);

• the fact that Niemiec appears to touch J.A. in a gentle manner (the Exhibit 10 summary states that Niemiec “places his hand on the woman’s buttocks”); and

• the absence of any force, violence, or aggressive language, in particular, Niemiec was not hitting or slapping J.A. on the buttocks and was not causing her to object and resist being hurt by him in this manner.

[25] Neither counsel for the Crown or counsel for J.A. submitted that the above five ways in which Mr. Sederoff sought to use the tape were factually inaccurate. Rather, Ms. Donohue and Ms. Fathalipour submitted that the brevity of the tape greatly reduced its probative value. In this regard, they submitted hypothetically that J.A. may testify (after viewing the tape) that it depicts a time period after she had already given up and was now participating “voluntarily” in the sexual activity (as J.A. put it and as explained at para. 4 above). Similarly, she may testify that the tape depicts a time period before Niemiec began slapping her on the buttocks and hurting her and before she saw the camera and buried her face in the pillow. Ms. Donohue and Ms. Fathalipour also submitted that inferring consent from gentle touching and from moving together during sexual intercourse involves impermissible stereotypical thinking.

[26] The above submissions by the Crown and by counsel for J.A. are difficult to evaluate at this early pre-trial stage. The complainant J.A. is not a compellable witness at the s. 278.92 hearing. Parliament has expressly addressed that issue in s. 278.94(2). Accordingly, I do not have her factual response or explanation concerning the tape in evidence at this pre-trial hearing. She may or may not have a persuasive explanation for the tape. At this stage, counsel for the Crown and for J.A. were only advancing hypotheticals. Accordingly, their submission on this point about J.A.’s potential explanations for the short videotape can only be addressed at trial, after hearing all the evidence.

[27] Furthermore, I do not agree with counsel’s submission that using evidence of gentle touching and moving together during sexual intercourse, in relation to credibility and the element of consent, involves impermissible stereotypical thinking. J.A. described physically aggressive conduct by Niemiec during the incident. He grabbed her forcefully by the back of the neck during felatio, causing her to choke. At a point later in the incident, when J.A. was on her front in a forward position and Niemiec was having vaginal intercourse from behind, her account is that he slapped or hit her on the buttocks causing pain, to which she objected. He also directed or ordered her verbally at various stages during the incident. None of this kind of apparently domineering non-consensual behaviour is depicted in the videotape. The gentle touching and moving together that is apparently depicted in the videotape may or may not be found to be inconsistent with J.A.’s account at trial, depending on how she explains these aspects of the tape and depending on her overall credibility and reliability. Once again, these are arguments that can only be resolved at trial, after hearing all the evidence.

[28] In this regard, it must be remembered that J.A.’s anticipated testimony concerning her non-consent will be challenged at trial. She will be cross-examined and it is anticipated that Niemiec will testify that she was consenting throughout, and that there were no disputes or disagreements about having sex, and that no force was ever used. In resolving this dispute and assessing the credibility and reliability of the two witnesses’ accounts, the surrounding circumstantial evidence must be taken into account. The videotape and the conduct depicted, if admissible, is simply one item of circumstantial evidence that can be considered by the trier when assessing the credibility and reliability of the witnesses. As Major J. put it, speaking for six members of the Court in R. v. Ewanchuk (1999), 1999 CanLII 711 (SCC), 131 C.C.C. (3d) 481 at paras. 29-30 (S.C.C.):

While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [Emphasis added].

Also see: R. v. M.G. (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 at 355-6 (Ont. C.A.) and R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 at 174 (Ont. C.A.), where the Court referred with approval, on both occasions, to O’Halloran J.A.’s well-known pronouncement in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-7 (B.C.C.A.) to the effect that conflicting witnesses’ credibility and reliability cannot be determined by assessing “which person [the trier] thinks made the better appearance of sincerity in the witness box … in cases of conflict of evidence”. Rather, the trier should consider whether “the surrounding circumstances in the case … point … to the conclusion that he is actually telling the truth” and should “subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions”, that is, “its harmony with the preponderance of the probabilities.” Those two judgements of the Ontario Court of Appeal in M.G. and Norman were concurred in by McKinlay, Abella, and Arbour JJ.A., who were not known for engaging in stereotypical thinking about sexual assault complainants.

[29] I am satisfied that the five areas of the tape recording summarized above, which Mr. Sederoff seeks to rely on, have “significant probative value”. They appear, at this early pre-trial stage, to support the account that Niemiec will give at trial of an entirely consensual incident. They may also contradict J.A.’s account, depending on her explanation concerning the content and timing of what is depicted and depending on her overall credibility and reliability. The brevity of the video recording may reduce its probative value, once J.A.’s explanation is provided and once her credibility and reliability is assessed. However, at this stage of the proceedings, the video is one piece of circumstantial evidence that tends to support the defence.

[30] Turning to the countervailing “danger of prejudice to the proper administration of justice”, this case raises many similar issues to those discussed in R. v. Hwang, supra at para. 10, where it was stated:

… 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, … 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).

[31] In order to reduce the above forms of prejudice to the privacy and dignity of J.A., Mr. Sederoff agreed to the seven proposed terms or conditions suggested in R. v. Hwang, supra at para. 11. He adapted them to the particular facts and circumstances of the present case as follows:

• First, Niemiec freely and voluntarily re-elected trial by judge alone at the hearing of the present Application. In this way, the number of triers who would have to see and assess the video recording would be significantly reduced. Furthermore, the trial judge could view the video recording privately in his/her chambers, once it is marked as an exhibit, without the need to play it in a public courtroom;

• Second, counsel will agree to an order closing the court pursuant to s. 486 at any point in the trial when there is a legitimate need to play this video recording in open court (there may well be no such need, as will be seen below, in light of the totality of the terms and conditions agreed to by Mr. Sederoff). Court staff could also be asked to briefly step out of the court room if there is any need to play the video recording. See: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (1996), 1996 CanLII 184 (SCC), 110 C.C.C. (3d) 193 at paras. 81-86 (SCC);

• Third, the parties signed an Agreed Statement of Fact (Exhibit 12) admitting that the video recording produced by Niemiec depicts J.A. and Niemiec while they were at the relevant Toronto hotel on July 8, 2018. This is crucially important. It means that the authenticity of the video recording is admitted and that it can be tendered in evidence and marked as an exhibit, either by the Crown or by the defence, without ever having to first put it to J.A. while she is testifying, in order to prove its authenticity. See, e.g. R. v. Khiar, 2021 ONSC 4677 at paras. 141-148; R. v. Andalib-Goortani, 2014 ONSC 4690 at paras. 33-34;

• Fourth, Mr. Sederoff agreed that the Crown can show the video recording to J.A. in privacy, out of court, when preparing the witness to testify. In this way, once again, there will be no need to play the video to J.A. in a public court room in order to refresh her memory or to direct her to some aspect of the exhibit;

• Fifth, the Crown can then ask questions that elicit any evidence it chooses to bring out in-chief, about the video recording, without playing the video to J.A. in a public court room. More importantly, Mr. Sederoff agrees that he can question J.A. in cross-examination about the areas and issues depicted in the video recording that concern the defence (summarized above at para. 23), by relying primarily on the Exhibit 10 summary of the video and without ever having to play the video to J.A. in cross-examination. In light of all the above five terms and conditions, Mr. Sederoff agrees that there should be no need to play the video recording in open court during the trial. If J.A. wishes to view the video again, before answering questions about it at trial, Ms. Sederoff agrees that she can be allowed to do this in privacy while out of court on a short recess;

• Sixth, the defence would consent to a sealing order preventing public access to the video recording, once it is marked as an exhibit (as was done in R. v. Bernardo, infra);

• Seventh, there are no expert witnesses anticipated in this trial. As a result, the three lawyers who have copies of the video recording have no need to show the video to any other witness or person involved in the case.

[32] In my view, the very responsible position taken by Mr. Sederoff on this Application, in agreeing to the above seven terms and conditions relating to the use of the video recording at trial, greatly reduces the danger of prejudice to J.A.’s privacy and dignity and to the proper administration of justice. When pressed, Ms. Donohue agreed that the above seven terms and conditions would reduce the relevant forms of prejudice. However, she submitted that there is still prejudice caused by the use of the video at trial. She identified the main source of this prejudice as the fact that the defence has the video without J.A.’s consent. Once again, this is a disputed fact that will have to be resolved on a full evidentiary record at trial. It will be recalled that Niemiec’s anticipated evidence at trial will be that he requested and obtained J.A.’s consent before he videotaped this part of their sexual activities.

[33] The balancing of probative value and prejudice to the proper administration of justice in this case is not easy. However, I am persuaded that the utility of the tape recording to the defence is substantial and the prejudice to J.A.’s privacy and dignity has been reduced. She can be reassured by the Crown and by her own counsel that the video recording may never have to be played in open court, for the reasons set out above, and that it will not be viewed by anyone except the trial judge. In these circumstances, the test for admissibility of the videotape pursuant to s. 278.92(2) has been met.

[34] Before concluding these Reasons, there are two procedural issues that I should address. The first issue is the sufficiency of the evidentiary record. Ms. Fathalipour submitted that the Applicant Niemiec had not presented sufficient evidence at the hearing to meet his burden under s. 278.92(2). She pointed to the lack of an affidavit from Niemiec setting out his account of the events at the time of the alleged offence, and to Mr. Sederoff being allowed to make submissions in which he summarized his client’s anticipated evidence. Implicitly, Ms. Fathalipour was arguing for a full evidentiary voir dire in which Niemiec’s account of the alleged offence could be tested, under oath and under cross-examination, before the court decided the admissibility of the text messages and the videotape.

[35] In my view, common law case management powers have always allowed the court to limit the use of full evidentiary voir dires, when deciding the admissibility of evidence. The only evidentiary ruling that has always required a full voir dire, absent a waiver, is when determining the voluntariness of a statement made to the police. The authoritative pre-Charter decision on this point is R. v. Dietrich (1970), 1970 CanLII 377 (ON CA), 1 C.C.C. (2d) 49 at 62 (Ont. C.A.), where Chief Justice Gale (McGillivray and Brooke JJ.A. concurring) disapproved of a voir dire held at trial to determine the admissibility of defence psychiatric evidence:

I agree with counsel for the appellant that the trial Judge adopted a highly unusual course in proceeding as he did. Undoubtedly a Judge should hear representations with respect to the admissibility of prospective evidence in the absence of the jury. At times, for example, where the voluntariness of a confession is in question, such representations must be tested in the light of testimony from witnesses. But save in rare circumstances, the relevancy or propriety of specific evidence need not be determined by testimony given in advance and in the absence of the jury. By adopting such a procedure the trial is unduly prolonged, the jury is absent from the Court-room too long, and the continuity of the trial which is so desirable is unduly disturbed, to say nothing of an unfair preview of the evidence that may be afforded to the opposite party. It should not become fashionable to have evidence disclosed by a voir dire without very good reason. On the contrary, it is desirable that whenever possible evidence that is to be challenged be considered in the absence of the jury upon an outline by counsel of the nature of the prospective evidence. In the vast majority of cases the Judge will then be in a position to rule upon its admissibility. [Emphasis added].

[36] In the post-Charter era, the number of pre-trial proceedings has increased dramatically and it has become commonplace to hear pre-trial motions before the jury is empanelled. As a result, the jury is not inconvenienced by holding a full evidentiary voir dire in the midst of the trial. Nevertheless, the post-Charter case law has continued to cite Dietrich and hold that there is no requirement to preview anticipated trial evidence by hearing it on a voir dire. Most recently, in R. v. Evans (2019), 2019 ONCA 715, 377 C.C.C. (3d) 231 at paras. 112-155 (Ont. C.A.), the Court dealt with a case where the admissibility of defence expert opinion evidence was determined “on the basis of the statements of counsel, rather than viva voce testimony of the proposed witnesses”. Watt J.A. (van Rensburg and Brown JJ.A. concurring) stated the following:

Neither the common law nor the Canadian Charter of Rights and Freedoms requires that any specific procedure, to the exclusion of all others, be followed to determine the admissibility of evidence. The form of voir dire is determined by the trial judge on the basis of the issues involved and the nature of the case being tried. There is no requirement that the inquiry must proceed on the basis of viva voce testimony: R. v. Kematch (2010), 2010 MBCA 18, 252 C.C.C. (3d) 349 at para. 43 (Man. C.A.); R. v. Dietrich (1970), 1970 CanLII 377 (ON CA), 1 C.C.C. (2d) 49 (Ont. C.A.), at p. 62, leave to appeal refused, [1970] S.C.R. xi. [Emphasis added].

[37] In the specific context of s. 276 pre-trial motions, the Court of Appeal stated the following in R. v. Darrach (1998), 1998 CanLII 1648 (ON CA), 122 C.C.C. (3d) 225 at paras. 62 and 74 (Ont. C.A.), aff’d on other grounds (2000), 2000 SCC 46, 148 C.C.C. (3d) 97 (S.C.C.), per. Morden A.C.J.O. (Osborne and Doherty JJ.A. concurring):

As the trial judge noted, requiring a party, as a first step in the procedure to obtain a ruling on the admissibility of proposed evidence, to furnish an outline of that evidence to the court is in accord with established trial procedures and a requirement that advance notice be given of the evidence is similarly an accepted procedure. See R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), particularly at pp. 301-302.

… neither the common law nor the Charter require that any specific procedure be followed in determining the admissibility of evidence. The procedure followed may vary and may be adapted to protect any competing interests that may come into conflict when evidence is proffered at trial. [Emphasis added].

[38] As criminal trials have become longer, and pre-trial proceedings have become more complex, lengthy delays have resulted and the courts have responded by stressing the importance of “robust” case management powers. The most comprehensive statement of these powers, including the power to limit full evidentiary voir dires, is found in R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 180 C.C.C. (3d) 498 at paras. 40 and 57 (Ont. C.A.), per. Rosenberg J.A. (Carthy and Doherty J.J.A. concurring):

I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called. [Emphasis added].

Also see: R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 at paras. 114 and 139 (S.C.C.); R. v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 at paras. 37-38 (S.C.C.); LeSage and Code, Report of the Review of Large and Complex Criminal Case Procedures, 2008 Queen’s Printer for Ontario, at pp. 70-71.

[39] Finally, and most recently, the Supreme Court addressed this issue in R. v. J.J., supra at para. 150, in the context of s. 278.92 hearings and the s. 11(c) Charter right to be protected from pre-trial compulsion. Wagner C.J.C. and Moldaver J., speaking for the majority, stated:

The record screening places no burden on the accused to submit an affidavit and undergo cross-examination. If an affidavit is submitted in support of the application, “[i]t need not be the accused [themselves] who presents evidence; it can be anyone with relevant information who can personally testify to its truth” (Darrach, at para. 53). Nor does it require the accused to testify. The accused is simply not compelled to be a witness within the meaning of s. 11(c) by the operation of ss. 278.92 to 278.94.

[40] I was satisfied that the present Application could be properly decided on the basis of an evidentiary record that included some affidavit evidence and some reasonably reliable hearsay evidence. I insisted on an affidavit from Niemiec, and an Agreed Statement of Fact, in order to establish the authenticity of the text messages and the video recording. However, I was satisfied that J.A.’s hearsay statement to the police and Niemiec’s hearsay interview with his lawyer provided the Court with a sufficient basis to assess probative value and prejudice at the pre-trial admissibility stage of proceedings. I relied on the above line of authority, emphasizing the need for reasonable efficiency and expedition in pre-trial proceedings and the need to avoid pre-trial compulsion of the accused. For these reasons, I was not persuaded by Ms. Fathalipour’s argument about the insufficiency of the record.

[41] The second procedural issue I want to briefly address is my concern about what happens to the video recording, and the copies of it that are presently in counsel’s possession, after the trial concludes. I did not hear submissions on this issue and, in any event, it will be informed by the trial judge’s findings of fact. However, I want to alert counsel to this issue and urge them to think about it and to address it before the trial judge, at the end of the trial. In A.G. (Nova Scotia) v. MacIntyre (1982), 1982 CanLII 14 (SCC), 65 C.C.C. (2d) 129 at 149 (S.C.C.), Dickson J., as he then was, gave the majority judgement and stated the following:

Undoubtedly every Court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.

[42] In Vickery v. Prothonotary of Supreme Court of Nova Scotia (1991), 1991 CanLII 90 (SCC), 64 C.C.C. (3d) 65 at 92-3 (SCC), the Court made clear that this supervisory jurisdiction includes control over exhibits filed at trial. That case involved a videotape exhibit in which the accused in a murder case claimed a privacy interest. Stevenson J. gave the majority judgement and stated:

In exercising its supervisory powers over material surrendered into its care, the court may regulate the use made of it. In circumstances such as these I do not think it right to say, as the chambers judge suggested, that Nugent [the accused] must initiate other proceedings to protect or promote his privacy interests. While subsequent proceedings might lie, the court is, on the application, able to obviate that step. There is no need for a multiplicity of proceedings, nor should someone in the position of Nugent run the risk of bolting the laboratory door after the virus has not only been removed, but reproduced. In an application of this nature the court must protect the respondent and accommodate the public interest in access. This can only be done in terms of the actual purpose and, in the face of obvious prejudice and the absence of a specific purpose, the order for unrestricted access and reproduction should not have been made. [Emphasis added].

[43] Helpful guidance in relation to this issue can be found in R. v. Canadian Broadcasting Corporation et al (2010), 2010 ONCA 726, 262 C.C.C. (3d) 455 (Ont. C.A.), where the Court referred with approval to the trial rulings made by Chief Justice LeSage in R. v. Bernardo, [1995] O.J. No. 1472 (Gen. Div.) relating to the notorious videotapes that were made exhibits in that case. I leave this important issue to the parties and the trial judge.

D. CONCLUSION

[44] For the reasons set out above, the text messages are admissible at trial, subject to the editing that is set out at para. 12 above. The video recording is also admissible at trial without editing. Finally, Niemiec’s statement to the police is admissible and can be used in cross-examination at trial, if Niemiec testifies.

[45] I would like to thank all counsel for the responsible, effective, and efficient way in which they conducted this difficult Application.

M.A. Code J.

Released: September 30, 2022

COURT FILE NO.: CR-21-50000036-0000

DATE: 20220930

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

BARTOSZ NIEMIEC

REASONS FOR JUDGEMENT

M.A. Code J.

Released: September 30, 2022

R. v. Niemiec, 2022 ONSC 5549

Case Summary

Reasons for judgement

A. OVERVIEW

B. FACTS

C. ANALYSIS

(i) Introduction

(ii) The s. 276 Application

(iii) The admissibility of the text messages

(iv) The admissibility of the video recording

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 3