His Majesty the King v. D.M.

COURT FILE NO.: CR-21-0061 DATE: 2022-11-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

D.M. Applicant

COUNSEL: Maureen McGuigan, for the Crown Adam Weisberg & Samiyyah Ganga, for the Applicant

HEARD: November 28, 2022

ENDORSEMENT

Justice Mills

[1] The Accused, D.M., is charged with five counts of sexual assault against his former spouse. It is alleged the assaults occurred between November 2006 and May 2015. The parties separated in 2008 and family law proceedings commenced in 2009. D.M. seeks directions from the court as to whether certain affidavits filed by the complainant in the family law proceedings constitute records for which the complainant had a reasonable expectation of privacy within the context of s. 278.92 of the Criminal Code. As with all family law matters, the affidavits contain financial and emotional information which is personal to the parties and to their adult children.

[2] D.M. submits the complainant voluntarily filed the affidavits with the court and relied upon them in the family law proceedings. She was aware she could be cross-examined on the affidavits, and they are now publicly available in the court record.

[3] The Crown submits that as a self represented litigant in the family law proceeding, it is unknown whether the complainant understood the implications of filing and relying upon an affidavit which contains personal information. Further, the Crown submits that participation in family law proceedings is not necessarily voluntary in that parties are required to disclose deeply personal information when seeking or resisting the payment of child and/or spousal support obligations. In the circumstances, the documents containing that information must therefore be characterized as records and subjected to scrutiny by the court as required by s. 278 of the Criminal Code.

[4] The intention of s. 278.92 is to create a regime to determine the admissibility of private records related to a complainant that are in the possession of the accused. The threshold analysis is first to determine whether the document is a record, and then whether there is a reasonable expectation of privacy over the document. If so, then the Court must weigh significant probative value as against any prejudicial effect and consider the list of factors enumerated in s. 278.92(3) to determine admissibility.

[5] Section 278.1 provides a definition of what constitutes a record. It includes records that fall within specifically enumerated categories, and records that contain personal information for which there is a reasonable expectation of privacy. If the record is within the latter group, it must contain “information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well-being”.[^1] The reasonable expectation of privacy will always be context-specific.[^2] To be admissible, the evidence must be relevant to an issue at trial, and it must have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.[^3]

[6] To ascertain whether a document is a record, one must examine the privacy interests of a complainant against the competing factors outlined in s. 278.92(3). If the information does not meaningfully engage these factors, it is a clear indication that the document in question is not a record. It is presumed that a certain level of privacy must be in issue, such that only the records that could cause “potential prejudice to the complainant’s personal dignity” will be of concern.[^4] The right of the accused to make full answer and defence will prevail over the discomfort that may be suffered by a complainant from intrusions of privacy that do not strike at the core of that person’s dignity.

[7] The context in which the record came into existence must be considered when assessing whether the complainant had a reasonable expectation of privacy in the record. When examining context, the court may consider the reason why the complainant shared the private information, the relationship between the complainant and the person with whom the information was shared, and where the record was shared and how it was created or obtained.[^5]

[8] The affidavits filed by the complainant in the family law proceedings are not records for which a reasonable expectation of privacy may be asserted. I have reviewed the affidavits (without the attached exhibits), all of which have been filed in the ss. 276, 278.93 and 278.94 application record. The hearing of that application is fixed for December 22, 2022. The affidavits contain some limited personal information of the complainant, as is typical in family law proceedings. None of the affidavits contain any evidence of sexual activity, other than the sexual activity that forms the subject matter of the charges.

[9] The affidavits do not meet the statutory definition of a record under s. 278.1 of the Criminal Code. The complainant prepared and delivered the affidavits while engaged in adversarial proceedings with the accused, served the affidavits on counsel for the accused, and then filed the affidavits with the court for review by the judiciary and the court staff. The affidavits are publicly available to anyone who may wish to access the court file. There cannot be any subjective or objective expectation of privacy in the affidavits.

[10] The affidavit dated January 18, 2021 contains the most personal information. It was filed in the family law proceeding after D.M. had been charged for the alleged sexual assaults. This affidavit purports to attach as an exhibit the medical records of the complainant. These medical records would constitute a record for which a reasonable expectation of privacy may be asserted but, as noted above, the exhibits to the affidavits have not been disclosed and counsel for D.M. confirms that he does not intend to rely upon the exhibits.

[11] I am satisfied the complainant’s affidavits filed in the family law proceedings with the accused do not satisfy the definition of records under s. 278.1 of the Criminal Code and therefore a s. 278.93 application is not required in respect of these documents.

J. E. Mills J.

Released: November 29, 2022

[^1]: R. v. J.J., 222 SCC 28 at para. 42 [^2]: Ibid., at para. 50 [^3]: Ibid., at para. 32 [^4]: Ibid., at paras. 51- 53 [^5]: Ibid., at paras. 57-60